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Serious Sex Offenders (Detention and
Supervision) Amendment Bill 2012
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Clause 1 sets out the purpose of the Bill.
Clause 2 provides that the Bill will commence by proclamation. It has a
default commencement date of 30 September 2013.
Clause 3 provides that the Serious Sex Offenders (Detention and
Supervision) Act 2009 is called the Principal Act in the Bill.
Clause 4 provides for the inclusion of two further instances in which a
supervision order will expire. Section 25 of the Principal Act
provides that a supervision order will expire on the first
occurrence of any of the specified events. The Bill includes in
the list--
the deportation or removal of the offender from
Australia under the Migration Act 1958 of the
Commonwealth; and
the death of the offender.
This amendment is intended to reduce court workloads and
clarify when such orders expire by removing the requirement for
the Secretary to the Department of Justice to apply for a review
of an order to alert the court of the death or deportation of an
offender in order to cease the operation of the order.
571309 1 BILL LA INTRODUCTION 11/9/2012
Clause 5 makes a similar amendment to section 44 of the Principal Act,
which sets out events on which a detention order will expire.
This list will now also include the deportation or removal of the
offender under the Migration Act 1958 of the Commonwealth
and the death of the offender.
This amendment is required for the same reasons as the
amendment by clause 4 to section 25 of the Principal Act.
Clause 6 makes a similar amendment to section 61 of the Principal Act,
which provides for the expiry of interim orders. This list will
now also include the deportation or removal of the offender
under the Migration Act 1958 of the Commonwealth and the
death of the offender.
This amendment is required for the same reasons as the
amendment to section 25 of the Principal Act.
Clause 7 amends section 65 of the Principal Act, which relates to the
periodic review of supervision orders. A new subsection (4) is
inserted so that whenever a court reviews a supervision order it
must also review any order made under section 184 restricting
the publication of information that enables identification of the
offender or his or her whereabouts. In reviewing the order, made
under section 184 to determine whether it should continue, the
court must have regard to the factors listed in section 185.
This amendment means that non-publication orders are subject to
regular review (whilst the supervision order is in place) and
offenders are not granted indefinite anonymity.
Clause 8 amends section 172 of the Principal Act.
Subclause (1) makes a minor amendment to subsection (2) to
clarify that the operation of that provision is subject to
subsection (3).
Subclause (2) amends subsection (3) so that, if the period of
notice for bringing proceedings needs to be dispensed with, this
may be done by the Secretary to the Department of Justice, the
Registrar (as defined in subsection (8)) or a member of the police
force of or above the rank of inspector, without the need for that
person to personally bring the proceedings.
This amendment clarifies the intent of this section, that is, that
the member dispensing with the notice period does not have to be
the informant who brings the proceedings. It is administratively
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unworkable to require the Secretary, Registrar or senior police
officer to be the informant in such proceedings.
Clause 9 amends section 180(a) of the Principal Act so that the Secretary
is required to notify the Registrar of Births, Deaths and Marriages
of the name, date of birth and addresses of an offender (for the
purpose of identifying offenders who seek to change their name
without obtaining the required approval under section 175 of the
Principal Act). The Principal Act currently states that the
Secretary may provide this information.
This amendment will make the Principal Act consistent with
other similar legislative provisions (for example, section 79H of
the Corrections Act 1986 in relation to prisoners on parole).
Clause 10 amends the heading to Division 1 of Part 13 of the Principal Act,
so that it is now headed "Publication" instead of "Suppression of
Publication". This is a more appropriate heading as some
sections in Division 1 of Part 13 relate to publication rather than
the suppression of publication.
Clause 11 inserts a definition of the word publish, which was not originally
included in the Principal Act.
The current absence of a definition of publish has led to
uncertainty in the interpretation of the Principal Act in the
context of the offence against section 182 of publishing evidence,
the contents of reports, or information that might enable
identification of witnesses or the victims in a proceeding under
the Principal Act.
Clause 12 inserts a note at the foot of section 184 of the Principal Act.
The note explains the link to the proposed new subsection in
section 65 of the Principal Act, as inserted by clause 7.
Clause 13 substitutes section 185(c) with new paragraphs (c), (d) and (e).
Section 185 sets out the matters to which the court must have
regard when making a decision under section 183 or 184 to
authorise publication of material or to suppress an offender's
identity and whereabouts. Under the amendment, courts would
be required to consider the protection of children, families and
the community as well as the offender's compliance with an order
and whereabouts when making these decisions.
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The amendments remove the requirement for the court to
consider whether publication would enhance or compromise the
purposes of the Principal Act and instead specify other relevant
factors to be considered. These amendments retain the
presumption that an offender's identity and whereabouts may be
disclosed, except where the court is satisfied to a high level that
the offender's details require suppression for the protection of the
community or in the interests of victims. The amendments mean
that the court is less likely to determine that it is in the public
interest to grant or maintain a suppression order if an offender
has not been complying with the conditions of the order.
The court can also take into account where the offender is living
in determining whether suppression is in the interests of the
community.
Clause 14 inserts the Corrections Act 1986 as one of the relevant Acts
listed in section 189(4) of the Principal Act. This clarifies that
the secrecy provisions do not prevent the sharing or disclosure of
information where it is necessary for relevant persons to carry out
functions under the Corrections Act 1986.
The administration of the Principal Act by Corrections Victoria
requires the use of information about offenders subject to orders
for purposes relating to the Corrections Act 1986.
Clause 15 repeals the proposed amending Act on 30 September 2014.
The repeal does not affect the continuing operation of the
amendments made by it (see section 15(1) of the Interpretation
of Legislation Act 1984).
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