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CRIMINAL LAW AMENDMENT (PUBLIC INTEREST DECLARATIONS) AMENDMENT BILL 2013

           Queensland



Criminal Law Amendment
(Public Interest Declarations)
Amendment Bill 2013

 


 

 

Queensland Criminal Law Amendment (Public Interest Declarations) Amendment Bill 2013 Contents Page 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3 Amendment of long title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 4 Amendment of s 2A (Interpretation) . . . . . . . . . . . . . . . . . . . . . . . 4 5 Amendment of s 18 (Detention of persons incapable of controlling sexual instincts) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 6 Insertion of new pts 4 and 4A. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Part 4 Further detention of particular sexual offenders Division 1 Preliminary 19 Definitions for pt 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 20 Decisions about detention in the public interest . . . . . 6 Division 2 Declaration for detention in the public interest 21 Making declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 22 Recommendation to make declaration . . . . . . . . . . . . 7 22A Notice of declaration. . . . . . . . . . . . . . . . . . . . . . . . . . 8 Division 3 Dealing with detained person 22B Effect of declaration generally . . . . . . . . . . . . . . . . . . 9 22C Annual examination of detained person . . . . . . . . . . . 10 22D Giving report of annual examination to detained person 12 22E Annual review of detention by Minister . . . . . . . . . . . . 12 Division 4 Ending of declaration for detention 22F Declaration to end detention . . . . . . . . . . . . . . . . . . . 13 Division 5 Effect of ending of declaration for detention etc. 22G End of detention and revival of DPSOA order . . . . . . 13 22H Review of continuing detention order . . . . . . . . . . . . . 14

 


 

Criminal Law Amendment (Public Interest Declarations) Amendment Bill 2013 Contents 22I Application for amendment of supervision order . . . . 14 22J Further supervision order . . . . . . . . . . . . . . . . . . . . . . 15 Division 6 Limitation of review 22K Limitation of review. . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Part 4A Miscellaneous provisions for operation of part 4 Division 1 Preliminary 22L Meaning of particular terms . . . . . . . . . . . . . . . . . . . . 17 22M References to operation of part 4. . . . . . . . . . . . . . . . 17 Division 2 Provisions about DPSOA orders 22N Application of div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 22O End of detention and revival of DPSOA order . . . . . . 18 22P Review of continuing detention order . . . . . . . . . . . . . 18 22Q Further supervision order . . . . . . . . . . . . . . . . . . . . . . 19 Division 3 Protection from liability 22R Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . 19 Page 2

 


 

2013 A Bill for An Act to amend the Criminal Law Amendment Act 1945 for particular purposes

 


 

Criminal Law Amendment (Public Interest Declarations) Amendment Bill 2013 [s 1] The Parliament of Queensland enacts-- 1 Clause 1 Short title 2 This Act may be cited as the Criminal Law Amendment 3 (Public Interest Declarations) Amendment Act 2013. 4 Clause 2 Act amended 5 This Act amends the Criminal Law Amendment Act 1945. 6 Clause 3 Amendment of long title 7 Long title, from `for,' to `offences'-- 8 omit, insert-- 9 for the treatment and punishment of offenders 10 convicted of sexual offences, to provide for the 11 detention in the public interest of a particular class 12 of offenders convicted of sexual offences 13 Clause 4 Amendment of s 2A (Interpretation) 14 Section 2A(1)-- 15 insert-- 16 corrective services facility see the Corrective 17 Services Act 2006, schedule 4. 18 Clause 5 Amendment of s 18 (Detention of persons incapable of 19 controlling sexual instincts) 20 Section 18(14), definition corrective services facility-- 21 omit. 22 Clause 6 Insertion of new pts 4 and 4A 23 After section 18H-- 24 Page 4

 


 

Criminal Law Amendment (Public Interest Declarations) Amendment Bill 2013 [s 6] insert-- 1 Part 4 Further detention of 2 particular sexual 3 offenders 4 Division 1 Preliminary 5 19 Definitions for pt 4 6 In this part-- 7 chief executive (corrective services) means the 8 chief executive of the department in which the 9 Corrective Services Act 2006 is administered. 10 continuing detention order means a continuing 11 detention order under DPSOA. 12 detained person means a person subject to a 13 public interest declaration. 14 DPSOA means the Dangerous Prisoners (Sexual 15 Offenders) Act 2003. 16 DPSOA order means a continuing detention 17 order or supervision order. 18 institution means-- 19 (a) a corrective services facility; or 20 (b) an institution prescribed for section 18(14), 21 definition institution, paragraph (b). 22 public interest declaration means a declaration 23 under section 21(1). 24 relevant event, for a detained person, means the 25 public interest declaration stops applying or does 26 not apply to the person-- 27 (a) because of a declaration made by the 28 Governor in Council under section 22F; or 29 Page 5

 


 

Criminal Law Amendment (Public Interest Declarations) Amendment Bill 2013 [s 6] (b) because of a determination of the Supreme 1 Court that a decision about the public 2 interest declaration is affected by 3 jurisdictional error. 4 Note-- 5 See section 22K for the limited review of 6 decisions under this part. 7 relevant person means-- 8 (a) a person subject to a continuing detention 9 order; or 10 (b) a person subject to a supervision order if the 11 person was subject to a continuing detention 12 order immediately before the supervision 13 order was made. 14 supervision order means a supervision order 15 under DPSOA. 16 20 Decisions about detention in the public 17 interest 18 For deciding whether the detention of a person under 19 division 3 is in, or is no longer in, the public interest-- 20 (a) the Minister or Governor in Council may 21 have regard to any matter the Minister or 22 Governor in Council considers relevant; and 23 (b) the matters that may be relevant for deciding 24 whether the detention is in, or is no longer 25 in, the public interest are not limited by any 26 provision of this Act or another Act. 27 Page 6

 


 

Criminal Law Amendment (Public Interest Declarations) Amendment Bill 2013 [s 6] Division 2 Declaration for detention 1 in the public interest 2 21 Making declaration 3 (1) On the recommendation of the Minister, the 4 Governor in Council may, by gazette notice, 5 declare that a relevant person must be detained 6 under division 3 if the Governor in Council is 7 satisfied the detention of the person under the 8 division is in the public interest. 9 (2) The Governor in Council can not make a public 10 interest declaration for a relevant person unless-- 11 (a) any appeal, under DPSOA, part 4, against 12 the DPSOA order for which the person is a 13 relevant person has been finally dealt with; 14 or 15 (b) if there is no appeal, under DPSOA, part 4, 16 against the DPSOA order for which the 17 person is a relevant person--the period 18 within which an appeal against the DPSOA 19 order may be started under DPSOA, part 4 20 has ended. 21 22 Recommendation to make declaration 22 (1) The Minister may recommend that the Governor 23 in Council make a public interest declaration for 24 a relevant person if the Minister is satisfied the 25 detention of the person under division 3 is in the 26 public interest. 27 (2) The Minister may recommend that the Governor 28 in Council make a public interest declaration for 29 a person subject to a continuing detention order 30 without giving the person prior notice of the 31 proposed recommendation. 32 Page 7

 


 

Criminal Law Amendment (Public Interest Declarations) Amendment Bill 2013 [s 6] (3) The Minister may recommend that the Governor 1 in Council make a public interest declaration for 2 a person subject to a supervision order only if-- 3 (a) at least 14 days before the recommendation 4 is made, the person is personally served with 5 a written notice stating the following-- 6 (i) the Minister intends to recommend that 7 the Governor in Council make a public 8 interest declaration for the person; 9 (ii) the grounds on which the Minister 10 considers the detention of the person 11 under division 3 is in the public 12 interest; 13 (iii) that the person may, within 10 days 14 after the notice is served on the person, 15 make written submissions to the 16 Minister about why the declaration 17 should not be made; and 18 (b) the Minister has regard to any submissions 19 made under paragraph (a)(iii). 20 (4) However, the Minister may recommend that the 21 Governor in Council make a public interest 22 declaration for a person subject to a supervision 23 order without complying with subsection (3) if 24 the Minister considers it is necessary to make the 25 declaration without compliance with the 26 subsection because of urgent circumstances. 27 22A Notice of declaration 28 (1) As soon as practicable after the Governor in 29 Council makes a public interest declaration for a 30 person, the person must be personally served 31 with a written notice that includes-- 32 (a) notice of the declaration; and 33 Page 8

 


 

Criminal Law Amendment (Public Interest Declarations) Amendment Bill 2013 [s 6] (b) either a copy of division 3 or a summary of 1 the effect of the declaration under division 2 3. 3 (2) A public interest declaration is of no effect until 4 the written notice mentioned in subsection (1) is 5 served as mentioned in the subsection. 6 Division 3 Dealing with detained 7 person 8 22B Effect of declaration generally 9 (1) A public interest declaration has effect for the 10 detained person-- 11 (a) on and from the day it takes effect under 12 section 22A; and 13 (b) until a relevant event happens for the person. 14 (2) While a public interest declaration has effect for 15 the detained person-- 16 (a) DPSOA does not apply to the person; and 17 (b) the person must no longer be detained, or 18 subject to supervised release, under 19 DPSOA; and 20 (c) this part operates in relation to the person 21 despite any other Act; and 22 (d) the person must be detained in an 23 institution; and 24 (e) the person is a prisoner for the purposes of 25 the Corrective Services Act 2006 other than 26 the following provisions of that Act-- 27 (i) chapter 2, part 2, division 10 or 11; 28 (ii) chapter 5. 29 Page 9

 


 

Criminal Law Amendment (Public Interest Declarations) Amendment Bill 2013 [s 6] Note-- 1 See division 5 for what happens when a public interest 2 declaration ends or does not apply to a person. 3 (3) However, the person may be detained in a 4 watch-house until the person can be conveniently 5 taken to an institution. 6 (4) If the person is not being detained in an 7 institution or watch-house under DPSOA when 8 the public interest declaration is made, the person 9 may be arrested without warrant by a police 10 officer and taken to an institution or watch-house 11 for detention under this section. 12 22C Annual examination of detained person 13 (1) The chief executive (corrective services) must 14 ensure a detained person is examined at least 15 once every year by 2 psychiatrists appointed by 16 the chief executive (corrective services) to 17 conduct examinations under this section, either 18 generally or of the person. 19 (2) A detained person must submit to an examination 20 required by the chief executive under subsection 21 (1). 22 (3) A psychiatrist who conducts an examination of a 23 person under subsection (1) must give the chief 24 executive (corrective services) a report that-- 25 (a) indicates the psychiatrist's assessment of the 26 level of risk that the person will commit an 27 offence of a sexual nature if released from 28 detention, and the reasons for the 29 assessment; and 30 (b) includes any other matter the psychiatrist 31 considers relevant. 32 (4) The psychiatrist must prepare the report on the 33 basis of-- 34 Page 10

 


 

Criminal Law Amendment (Public Interest Declarations) Amendment Bill 2013 [s 6] (a) the psychiatrist's examination and 1 observation of the person; and 2 (b) any other report or information the 3 psychiatrist considers relevant. 4 (5) For the purposes of preparing the report, the chief 5 executive (corrective services) must give each 6 psychiatrist any medical, psychiatric, prison or 7 other relevant report or information relating to 8 the person that is in that chief executive's 9 possession or to which that chief executive has, 10 or may be given, access. 11 (6) A person in possession of a report or information 12 mentioned in subsection (5) must give a copy of 13 the report or information to the chief executive 14 (corrective services) if asked by that chief 15 executive. 16 (7) Subsection (6) authorises and requires the person 17 to give the report or information despite any other 18 law to the contrary or any duty of confidentiality 19 attaching to the report or information. 20 (8) A person giving a report or information under 21 subsection (6) is not liable, civilly, criminally or 22 under an administrative process, for giving the 23 report or information. 24 (9) If subsection (8) applies to a person giving a 25 report or information, section 22R does not apply 26 to the giving of the report or information. 27 (10) In this section-- 28 psychiatrist means a person registered under the 29 Health Practitioner Regulation National Law to 30 practise in the medical profession as a specialist 31 registrant in the specialty of psychiatry, other 32 than as a student. 33 Page 11

 


 

Criminal Law Amendment (Public Interest Declarations) Amendment Bill 2013 [s 6] 22D Giving report of annual examination to 1 detained person 2 The chief executive (corrective services) must, as soon 3 as practicable after receiving a report about a detained 4 person under section 22C(2), give a copy of the report 5 to-- 6 (a) the person and the person's legal 7 representative; and 8 (b) the Minister. 9 22E Annual review of detention by Minister 10 (1) The Minister must, as soon as practicable after 11 receiving a report about a detained person under 12 section 22D-- 13 (a) consider the report; and 14 (b) make a recommendation to the Governor in 15 Council to make, or not to make, a 16 declaration under section 22F. 17 (2) The Minister may recommend that the Governor 18 in Council make a declaration under section 22F 19 if satisfied that detaining the person under this 20 division is no longer in the public interest. 21 (3) Before making a recommendation under this 22 section, the Minister-- 23 (a) must decide whether the continued 24 detention of the person under this division is 25 in the public interest; and 26 (b) must have regard to the report, and any other 27 report about the person previously given to 28 the Minister under section 22D; and 29 (c) must give the person a reasonable 30 opportunity to make submissions about the 31 Minister's recommendation, and have regard 32 to any submissions made. 33 Page 12

 


 

Criminal Law Amendment (Public Interest Declarations) Amendment Bill 2013 [s 6] Division 4 Ending of declaration for 1 detention 2 22F Declaration to end detention 3 (1) This section applies if, on the recommendation of 4 the Minister, the Governor in Council is satisfied 5 that detaining a detained person under division 3 6 is no longer in the public interest. 7 (2) The Governor in Council may, by gazette notice, 8 declare that division 3 no longer applies to the 9 person. 10 (3) Notice of the declaration must be personally 11 served on the person. 12 (4) The continuing detention declaration stops 13 applying to the person when the declaration is 14 gazetted. 15 Division 5 Effect of ending of 16 declaration for detention 17 etc. 18 22G End of detention and revival of DPSOA order 19 (1) If a relevant event happens for a detained 20 person-- 21 (a) the person is no longer to be detained under 22 division 3; and 23 (b) the DPSOA order for which the person was 24 a relevant person revives, unless it is a 25 supervision order and the period for which 26 the order had effect, as stated in the order, 27 has passed. 28 (2) If a supervision order is revived under subsection 29 (1)(b), the period for which the person was 30 Page 13

 


 

Criminal Law Amendment (Public Interest Declarations) Amendment Bill 2013 [s 6] detained under division 3 must be counted as part 1 of the period for which the order has effect. 2 (3) However, this section is subject to sections 22I 3 and 22J. 4 22H Review of continuing detention order 5 (1) This section applies if-- 6 (a) a continuing detention order is revived 7 under section 22G(3); and 8 (b) because of the operation of this part, the 9 period within which a review under 10 DPSOA, section 27 must be completed for 11 the order has passed without the review 12 being carried out. 13 (2) The Attorney-General must immediately make 14 any necessary applications for a review to be 15 carried out under DPSOA, section 27. 16 22I Application for amendment of supervision 17 order 18 (1) This section applies if-- 19 (a) the DPSOA order for which a detained 20 person was a relevant person is a 21 supervision order; and 22 (b) the period for which the supervision order 23 has effect, as stated in the order, has not 24 passed. 25 (2) An application may be made under DPSOA, part 26 2, division 4 for the amendment of the 27 supervision order on or before the day a relevant 28 event happens for the detained person. 29 (3) If an application is made under subsection (2), 30 section 22G(1) does not take effect for the 31 detained person until the application is finally 32 dealt with under DPSOA. 33 Page 14

 


 

Criminal Law Amendment (Public Interest Declarations) Amendment Bill 2013 [s 6] (4) This section does not affect the operation of 1 DPSOA, part 2, division 4 for applications made 2 under that division after the day the relevant 3 event happens. 4 22J Further supervision order 5 (1) This section applies if-- 6 (a) the DPSOA order for which a detained 7 person was a relevant person is a 8 supervision order; and 9 (b) the order can not be revived, under section 10 22G(3), because the period for which the 11 order had effect, as stated in the order, has 12 passed. 13 (2) The Attorney-General may apply for a further 14 supervision order under DPSOA, part 2, division 15 4A as if the person were subject to a supervision 16 order. 17 (3) The application-- 18 (a) may be made on or before the day a relevant 19 event happens for the detained person; or 20 (b) if the application is not made on or before 21 the day mentioned in paragraph (a)--must 22 be made as soon as practicable after that 23 day. 24 (4) This section applies despite DPSOA, section 25 19B(3). 26 (5) If an application for a further supervision order is 27 made under subsection (2) on or before the day a 28 relevant event happens for the detained person, 29 section 22G(1) does not take effect for the person 30 until the application is finally dealt with under 31 DPSOA. 32 Page 15

 


 

Criminal Law Amendment (Public Interest Declarations) Amendment Bill 2013 [s 6] Division 6 Limitation of review 1 22K Limitation of review 2 (1) This section applies to the following-- 3 (a) a decision of the Minister to recommend 4 that the Governor in Council make a public 5 interest declaration; 6 (b) a decision of the Governor in Council to 7 make a public interest declaration; 8 (c) a decision of the Minister to recommend 9 that the Governor in Council not make a 10 declaration under section 22F; 11 (d) a decision of the Governor in Council not to 12 make a declaration under section 22F. 13 (2) The Judicial Review Act 1991, part 4 does not 14 apply to the decision. 15 (3) Subject to subsection (4), the decision-- 16 (a) is final and conclusive; and 17 (b) can not be challenged, appealed against, 18 reviewed, quashed, set aside or called in 19 question in any other way, under the Judicial 20 Review Act 1991 or otherwise (whether by 21 the Supreme Court, another court, a tribunal 22 or another entity); and 23 (c) is not subject to any declaratory, injunctive 24 or other order of the Supreme Court, another 25 court, a tribunal or another entity on any 26 ground. 27 (4) The Judicial Review Act 1991, part 5 applies to 28 the decision to the extent it is affected by 29 jurisdictional error. 30 (5) In this section-- 31 Page 16

 


 

Criminal Law Amendment (Public Interest Declarations) Amendment Bill 2013 [s 6] decision includes a decision or conduct leading 1 up to or forming part of the process of making a 2 decision. 3 Part 4A Miscellaneous 4 provisions for 5 operation of part 4 6 Division 1 Preliminary 7 22L Meaning of particular terms 8 In this part, a term used in the part and defined in 9 section 19 has the meaning it has under that section. 10 22M References to operation of part 4 11 In this part, a reference to the operation of part 4 12 includes a reference to the purported operation of part 13 4. 14 Division 2 Provisions about DPSOA 15 orders 16 22N Application of div 2 17 This division applies if-- 18 (a) because of the operation of part 4, there is a 19 public interest declaration for a person; and 20 (b) the public interest declaration stops 21 applying or does not apply to the person 22 other than because of-- 23 (i) a declaration made by the Governor in 24 Council under section 22F; or 25 Page 17

 


 

Criminal Law Amendment (Public Interest Declarations) Amendment Bill 2013 [s 6] (ii) a determination of the Supreme Court 1 that a decision about the public interest 2 declaration is affected by jurisdictional 3 error. 4 22O End of detention and revival of DPSOA order 5 (1) The person must no longer be detained in an 6 institution because of the operation of part 4. 7 (2) The DPSOA order for which the person was a 8 relevant person revives, unless it is a supervision 9 order and the period for which the order had 10 effect, as stated in the order, has passed. 11 (3) If a supervision order is revived under subsection 12 (2), the period for which the person was detained 13 because of the operation of part 4 must be 14 counted as part of the period for which the order 15 has effect. 16 22P Review of continuing detention order 17 (1) This section applies if-- 18 (a) the DPSOA order for which the person was 19 a relevant person is a continuing detention 20 order; and 21 (b) the order is revived under section 22O(2) or 22 otherwise; and 23 (c) because of the operation of part 4, the period 24 within which a review under DPSOA, 25 section 27 must be completed for the order 26 has passed without the review being carried 27 out. 28 (2) The Attorney-General must immediately make 29 any necessary applications for the review to be 30 carried out under DPSOA, section 27. 31 Page 18

 


 

Criminal Law Amendment (Public Interest Declarations) Amendment Bill 2013 [s 6] 22Q Further supervision order 1 (1) This section applies if-- 2 (a) the DPSOA order for which the person was 3 a relevant person is a supervision order; and 4 (b) the order can not be revived, under section 5 22O(2) or otherwise, because the period for 6 which the order had effect, as stated in the 7 order, has passed. 8 (2) The Attorney-General may apply for a further 9 supervision order under DPSOA, part 2, division 10 4A as if the person were subject to a supervision 11 order. 12 (3) The application must be made as soon as 13 practicable after the day the public interest 14 declaration stops applying or does not apply to 15 the person. 16 (4) This section applies despite DPSOA, section 17 19B(3). 18 Division 3 Protection from liability 19 22R Protection from liability 20 (1) A public official is not civilly liable for an act 21 done, or omission made, for the operation of part 22 4, if the act was done, or omission was made, 23 honestly and without negligence. 24 (2) If subsection (1) prevents a civil liability 25 attaching to a public official, the liability attaches 26 instead to the State. 27 (3) In this section-- 28 public official means-- 29 (a) the Minister; or 30 (b) the chief executive (corrective services); or 31 Page 19

 


 

Criminal Law Amendment (Public Interest Declarations) Amendment Bill 2013 [s 6] (c) a person acting under the authority of part 4 1 or a person mentioned in paragraph (a) or 2 (b). 3 State of Queensland 2013 Authorised by the Parliamentary Counsel Page 20

 


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