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Corrections Legislation Miscellaneous Amendment Bill 2017

  Corrections Legislation Miscellaneous
          Amendment Bill 2017

                         Introduction Print


              EXPLANATORY MEMORANDUM


                               Clause Notes

                          Part 1--Preliminary
Clause 1   sets out the main purposes of the Bill.

Clause 2   provides that the Bill will commence on the day after the day on
           which the Bill receives the Royal Assent except for clauses 4, 5,
           6, 12, 23, 39, 41, 42, 43, 44, 45, 46, 48, 49, 50, 51, 52, 53, 54, 55,
           56, 57, 58, 59, 60, 62 and 64 of the Bill which comes into
           operation on a day or days to be proclaimed.
           Clauses 4, 5, 6, 12, 23, 39, 41, 42, 43, 44, 45, 46, 48, 49, 50, 51,
           52, 53, 54, 55, 56, 57, 58, 59, 60, 62 and 64 commence on a day
           or days to be proclaimed to allow sufficient time for
           implementation of the amendments regarding--
             •       the prohibition of remotely piloted aircraft or
                    helicopters in, at, near or above a prison or residential
                    facility and to introduce associated search and seizures
                    powers for corrections officers and police officers; and
             •       new powers for auditing of computers and other devices
                    of serious sex offenders and related enforcement powers
                    of police officers and corrections officers including
                    reporting obligations on the use of reasonable force.
           If a provision in clause 4, 5, 6, 12, 23, 39, 41, 42, 43, 44, 45, 46,
           48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 62 or 64 does not
           come into operation before 1 February 2018, it comes into
           operation on that day.



581365                                 1       BILL LA INTRODUCTION 9/5/2017

 


 

Part 2--Amendment of Corrections Act 1986 Clause 3 amends the definition of criminal act of violence in section 30A(1) of the Corrections Act 1986 to refer to any offence listed in Schedule 1 to the Serious Sex Offenders (Detention and Supervision) Act 2009. The effect of this amendment will be to amend the corresponding defined term victim in the Corrections Act 1986. As a result, these amendments will include Commonwealth sexual offences not falling within the previous definition of the term criminal act of violence before the commencement of the amendment contained in the Act. The practical effect of this change will be that victims of Commonwealth sexual offences will be eligible to make submissions to the Adult Parole Board and be kept appraised of offender conditions. Clause 4 inserts new sections 32A and 32B into the Corrections Act 1986. New section 32A(1) provides that an offence should apply where a person intentionally or recklessly operates or attempts to operate a remotely piloted aircraft or helicopter, or is in possession of a remotely piloted aircraft above a prison (in any direction at or below 400 feet above ground level); in or at a prison; or outside but near a prison. The offence should apply where the operation or attempted operation of a remotely piloted aircraft or helicopter, or possession of a remotely piloted aircraft, threatens, or is likely to threaten, the good order or security of a prison or any person in a prison. A person may have a reasonable excuse to the offence. The maximum penalty for the offence is set at two years imprisonment. New section 32A(2) provides that the offence will not apply if there is a lawful purpose for operating a remotely piloted aircraft or a helicopter, or possessing a remotely piloted aircraft including if permitted by the Corrections Act 1986 or its regulations; or authorised by a prison Governor under new section 32B; or permitted by Commonwealth law. Exemptions to the offence also apply for the purposes of law enforcement by a law enforcement agency; or the purposes of an emergency, or recovery from an emergency, under the Emergency Management Act 2013. 2

 


 

New section 32A(3) empowers an escort officer to order a person to leave the neighbourhood of the prison on the basis of a reasonable belief that the person is committing, or has committed, an offence against new section 32A(1). In a metropolitan area, police officers and escort officers are empowered to order a person to leave the neighbourhood of the prison on the basis of reasonable belief that a person is committing, or has committed, an offence against new section 32A(1). The definition of escort officer in section 3(1) of the Corrections Act 1986 means both a prison officer and an escort officer. New section 32A(4) provides that prior to giving an order to leave the neighbourhood an escort officer or police officer is required to advise the person of the reason why they are being ordered to leave the neighbourhood of the prison. New section 32A(5) provides for an offence for a person to disobey an order given by an escort officer or police officer to leave the neighbourhood. A maximum penalty of 5 penalty units is set for the offence. New section 32A(6) empowers an escort officer to apprehend a person without a warrant if the escort officer believes on reasonable grounds that the person has committed an offence under new section 32A(1). New section 32A(7) requires an escort officer who has apprehended a person without a warrant in the reasonable belief that the person has committed an offence against new section 32A(1) to deliver the person into the custody of a police officer as soon as possible. New section 32A(8) applies the Crimes Act 1958, except for sections 458(1) and 458(2) of the Crimes Act 1958, to the apprehension of a person without a warrant under new section 32A(6) with reference to the meaning of a person found committing an offence under section 458(1)(a) of the Crimes Act 1958. New section 32A(9) clarifies that a person convicted or acquitted of an offence against section 32(1) of the Corrections Act 1986 cannot be subsequently prosecuted for an offence against new section 32A(1) in relation to the same circumstances. 3

 


 

New section 32A(10) clarifies that in the event of any conflict with the Australian Constitution, the Commonwealth laws prevail to the extent of the inconsistency and the remaining valid Victorian laws will continue to operate. New section 32A(11) applies the meaning of inconsistency with Commonwealth laws under section 109 of the Australian Constitution to any meaning of any inconsistency with a law of the Commonwealth under new section 32A(10). New section 32A(12) inserts new definitions of law enforcement agency, metropolitan area and remotely piloted aircraft. Law enforcement agency is defined to include Victoria Police and the Australian Federal Police. Metropolitan area is defined in new section 32A(12) as meaning an area within a radius of 15 kilometres of the intersection of Elizabeth Street and Bourke Street, Melbourne. Remotely piloted aircraft is defined to include controls for the aircraft. New section 32B empowers a prison Governor to authorise a person or a class of persons to operate or attempt to operate a remotely piloted aircraft or a helicopter or to possess a remotely piloted aircraft in, at or outside but near a prison. Clause 5 inserts new sections 45(2A), (2B), (2C) and (2D) into the Corrections Act 1986. New section 45(2A) permits a prison Governor to order an escort officer to conduct a search outside but near the prison if the prison Governor believes on reasonable grounds that a person has committed, or is committing an offence against section 32A(1). In a metropolitan area, a prison Governor may request a police officer to conduct a search outside but near the prison. The definition of escort officer in section 3(1) of the Corrections Act 1986 means both a prison officer and an escort officer. New section 45(2B) empowers an escort officer to conduct a search outside but near a prison if the escort officer has a reasonable belief that a person is committing or has committed an offence against new section 32A(1). 4

 


 

New section 45(2C) sets out the search powers of an escort officer and a police officer when conducting a search under new sections 45(2A) and (2B). An escort officer or a police officer may-- • search and examine a person who the officer reasonably believes has committed the offence against section 32A(1); or • search the location at which the offence is reasonably believed to have been committed; or • require a person outside but near the prison to submit to a search if the officer reasonably believes that a thing on the person or in the person's possession will afford evidence of the commission of the offence; or • search and examine any thing outside but near the prison, including a place where prisoners are, if the officer reasonably believes that the thing will afford evidence of the commission of the offence; or • seize any thing in accordance with new section 46(1A). New section 45(2D) provides that searches under new sections 45(2A) and (2B) must be conducted in accordance with the regulations. Clause 5 also amends section 45(8) of the Corrections Act 1986 to amend the definition of metropolitan area to mean an area within the radius of 15 kilometres of the intersection of Elizabeth Street and Bourke Street, Melbourne. Clause 6 amends section 46 of the Corrections Act 1986. New section 46(1A) empowers an escort officer to seize items including items found outside but near a prison when conducting searches under new sections 45(2A) and (2B) if the officer reasonably believes that the item seized will afford evidence of the commission of an offence against section 32A(1). The definition of escort officer in section 3(1) of the Corrections Act 1986 means both a prison officer and an escort officer. New section 46(2) ensures that any item seized under new section 46(1A) is immediately reported to the prison Governor. 5

 


 

Clause 7 amends the definition of serious offence under section 72(8) of the Corrections Act 1986 to include terrorism and foreign incursion offences. This will require the Adult Parole Board to include in its annual report the number of persons who have been convicted of a terrorism or foreign incursion offence that has been committed while the person was on parole. Clause 8 amends section 74AAB of the Corrections Act 1986 to give the Serious Violent Offender or Sexual Offender Parole division (SVOSO) of the Adult Parole Board responsibility to grant parole for a prisoner convicted of a Victorian terrorism offence or another Victorian offence in circumstances where the prisoner has also been convicted of a terrorism or foreign incursion offence under the Criminal Code of Act 1995 of the Commonwealth and sentenced to imprisonment. Section 74AAB(2) of the Corrections Act 1986 is amended to update the new function of the SVOSO division. Section 74AAB(3) of the Corrections Act 1986 is amended to make it clear that the SVOSO division of the Adult Parole Board can grant parole in respect to prisoners convicted of terrorism or foreign incursion offences. Section 74AAB(5) of the Corrections Act 1986 is amended to provide that the SVOSO division of the Adult Parole Board should only grant parole to a prisoner convicted of a terrorism or foreign incursion offence if another division of the Adult Parole Board has recommended that parole be granted and the recommendation has been considered by SVOSO. This is consistent with the current approach for prisoners convicted of serious violent or sexual offences. Section 74AAB(7) of the Corrections Act 1986 is amended to make it clear that the SVOSO division of the Adult Parole Board may refuse to grant parole in respect to a prisoner convicted of a terrorism or foreign incursion offence even if another division of the Adult Parole Board recommends the grant of parole. Section 74AAB(8) of the Corrections Act 1986 is substituted to clarify that a terrorism or foreign incursion offence has the same meaning as in section 77(9) of the Corrections Act 1986. 6

 


 

Clause 9 amends section 77(3) of the Corrections Act 1986 to provide that existing rules about cancellation of parole will apply to a prisoner on parole who is charged with a terrorism or foreign incursion offence. The presumptions in relation to the cancellation of parole applies if a serious violent offender, a sexual offender is charged with a violent offence, a sexual offence, or a terrorism or foreign incursion offence that was allegedly committed while the prisoner was on parole. Section 77(6) of the Corrections Act 1986 is amended to make it clear that parole is automatically cancelled if the prisoner is convicted in respect of the offence. Clause 9 also amends section 77(9) of the Corrections Act 1986 to add the offences of home invasion, aggravated home invasion, carjacking, aggravated carjacking and defensive homicide to the definition of serious violent offence. Stricter parole laws will apply to the offences of home invasion, aggravated home invasion, carjacking and aggravated carjacking which reflects the significant impact of these offences have on the community. These offences also have similar elements to other serious violent offences, including armed robbery and aggravated burglary. Defensive homicide under section 9AD of the Crimes Act 1958 was a serious violent offence prior to its repeal on 1 November 2014 by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014. Clause 9 also inserts the definition of terrorism or foreign incursion offence into section 77(9) of the Corrections Act 1986 to mean an offence listed in Schedule 4. Schedule 4 to the Corrections Act 1986 is inserted by clause 14 to include terrorism or foreign incursion offences from Victorian and Commonwealth legislation. Clause 10 amends section 104ZX of the Corrections Act 1986 to insert the definition of Corrections-related legislation to correct anomalies and ensure consistency between the two information sharing schemes under the Corrections Act 1986 and Serious Sex Offenders (Detention and Supervision) Act 2009. This definition expands the grounds to use or disclosure of personal or confidential information about prisoners, parolees and offenders (and former offenders). Information sharing will be permitted where it is reasonably necessary for a person to 7

 


 

perform their official duties for the purposes of Corrections- related legislation including-- • the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 or the Mental Health Act 2014, for example to facilitate mental health services to prisoners or offenders; or • the Family Violence Protection Act 2008 and the Personal Safety Intervention Orders Act 2010; or • the administration of the Working With Children Act 2005 and orders under the Sentencing Act 1991; or • the Migration Act 1958 of the Commonwealth to build on reforms in the Corrections Legislation Amendment Act 2016 regarding deportation of non-citizen offenders or prisoners. Clause 10(b) amends the definition of official duties to include the administration of Corrections-related legislation. Clause 10(c) amends the definition of relevant person in section 104ZX of the Corrections Act 1986 to include the secretary of the Adult Parole Board and any person who delivers services or advice on behalf of the Australian Federal Police. Members of the Adult Parole Board are already considered relevant persons and adding the secretary will avoid any doubt about the ability of the secretary to share information about prisoners and offenders in carrying out the Board's functions. Clause 11 repeals section 104ZY(1)(b)(ii) of the Corrections Act 1986 as the administration of orders under sections 270 and 276 of the Mental Health Act 2014 will be captured by the amendment in clause 10 to the definition of Corrections-related legislation to include the Mental Health Act 2014. Clause 11(2)(a) amends section 104ZY(2)(a)(i) of the Corrections Act 1986 to address an anomaly that permits the use or disclosure of personal or confidential information for the purpose of reducing the risk of a person committing a violent offence, but not a sexual offence or both a violent offence and a sexual offence. A similar provision is also included in clause 61 to amend the information sharing provisions in the Serious Sex Offender (Detention and Supervision) Act 2009 to ensure consistency. 8

 


 

Clause 11(2)(b) amends section 104ZY(2)(d) of the Corrections Act 1986 to address an anomaly to enable both use and disclosure to the Ombudsman or the Ombudsman's officers to maintain consistency with information sharing with other oversight bodies. Clause 11(2)(c) amends section 104ZY(2) of the Corrections Act 1986 to permit information to be disclosed to other oversight bodies listed in section 47(1)(m) of the Corrections Act 1986 including the Independent Broad-based Anti-corruption Commission, Victorian Inspectorate, Victorian Legal Services Commissioner, Mental Health Complaints Commissioner, Victorian Equal Opportunity and Human Rights Commissioner, Information Commissioner and Health Complaints Commissioner. The purpose of this amendment is to extend information sharing provisions under section 104ZY(2) of the Corrections Act 1986 to other relevant oversight bodies. Clause 11(2)(d) inserts section 104ZY(2)(fa) into the Corrections Act 1986 to ensure that information can be used or disclosed if the use or disclosure is in accordance with the Privacy and Data Protection Act 2014. Clause 11(2)(e) inserts section 104ZY(2)(ga) into the Corrections Act 1986 to allow the information to be used or disclosed to carry out functions under the Working with Children Act 2005. This amendment replaces the current provision that permits information to be disclosed to the Secretary in a response to a request. This purpose of this amendment is to maintain consistency section 189 of the Serious Sex Offenders (Detention and Supervision) Act 2009. Clause 11(2)(f) amends sections 104ZY(2)(h) and (i) of the Corrections Act 1986 to reflect the merging of the Department of Health and Department of Human Services into a single department and address an anomaly that extends disclosure to the Australian Electoral Commission to the Victorian Electoral Commission for the purposes of establishing a prisoner's entitlement to vote. Clause 11(3) amends section 104ZY(4) inserts the new definition of sexual offence to mean an offence listed in Schedule 1 to the Serious Sex Offenders (Detention and Supervision) Act 2009. 9

 


 

Clause 12 inserts section 112(1)(ad) into the Corrections Act 1986 to provide a regulation-making power to exempt a person or a class of persons from the operation of an offence against section 32A(1). Clause 13 inserts a new transitional provision into the Corrections Act 1986. New section 128 provides that the amendment of section 74AAB of the Corrections Act 1986 by clause 8 applies to a prisoner sentenced to imprisonment for a terrorism or foreign incursion offence whether the offence was committed before or after the commencement of clause 8. Clause 14 inserts a new Schedule 4 into the Corrections Act 1986 to list the relevant Commonwealth and Victorian terrorism and foreign incursion offences. The purpose of this Schedule is to include terrorism and foreign incursion offences that prohibit conduct such as engaging in a terrorist act, providing training connected with a terrorist act, recruiting for a terrorist organisation and financing terrorism. This Schedule captures the relevant offences from Victorian and Commonwealth offences to be included in the definition of terrorism or foreign incursion offence under section 77(9) of the Corrections Act 1986. Prisoners convicted of these offences will be subject to stricter parole laws as outlined in clauses 8 and 9. Part 3--Amendment of the Serious Sex Offenders (Detention and Supervision) Act 2009 Clause 15 amends section 3 of the Serious Sex Offenders (Detention and Supervision) Act 2009. Clause 15(1) corrects a reference to police gaol in the definition of custodial sentence. Clause 15(2) inserts a new definition of immigration detention which has the same meaning that is set out in section 5 of the Migration Act 1958 of the Commonwealth. In that Act, immigration detention includes being held in a detention centre established under that Act, a prison or remand centre of the Commonwealth, a State or a Territory, or in a police station or watch house. 10

 


 

Clause 16 amends section 4 of the Serious Sex Offenders (Detention and Supervision) Act 2009. Section 4 currently sets out the requirements for eligibility for interim and final supervision and detention orders that may be made under the Serious Sex Offenders (Detention and Supervision) Act 2009. New subsection (4A) provides that a person is an eligible offender for the purposes of an application to renew their supervision order if they are subject to a supervision order or interim supervision order at the time that application is made. The purpose of this provision is to put beyond any doubt that, although an offender is no longer serving a custodial sentence for a relevant offence at the time of renewal, the court has the power to renew supervision orders. This new provision is intended to support section 28(1) that provides that the Secretary may apply, at any time while a supervision order is in force, to the court that made the order for it to be renewed. New subsection (4B) provides that a person is an eligible offender for the purposes of an application to renew their detention order if they are subject to a detention order or interim detention order at the time that application is made. The purpose of this provision is to put beyond any doubt that, although an offender is no longer serving a custodial sentence for a relevant offence at the time of renewal, the court has the power to renew the detention order. This provision is intended to support section 45(1) which provides that the Director of Public Prosecutions may apply, at any time while a detention order is in place, to the Supreme Court for that order to be renewed. Clause 17 subclause (1) repeals section 7(3)(ab) of the Serious Sex Offenders (Detention and Supervision) Act 2009 concerning the court to which an applicant for a supervision order may be made. Repealed section 7(3)(ab) provides that applications are to be made to the Trial Division of the Supreme Court if the Magistrates Court was constituted by the Chief Magistrate (who holds a dual commission as a Judge of the County Court) when it sentenced the offender for the relevant offence. As the Trial Division of the Supreme Court is not the appropriate venue for the consideration of applications for supervision orders, this provision in repealed. In almost all cases, supervision orders are made by the County Court. 11

 


 

Subclause (2) amends section 7(3)(b) of the Serious Sex Offenders (Detention and Supervision) Act 2009 to reflect this policy intention and legal practice. The amendment ensures that the proper venue for the consideration of applications for supervision orders is the County Court, even if the court that considered the relevant offending was constituted by the Chief Magistrate. Clause 18 substitutes section 9(1) of the Serious Sex Offenders (Detention and Supervision) Act 2009 with a new section 9(1). New section 9(1)(a) is a re-enactment of the existing section 9(1). New section 9(1)(b) provides that a court may make a supervision order in respect of an eligible offender (within the meaning of section 4 of the Serious Sex Offenders (Detention and Supervision) Act 2009) despite the offender serving a custodial sentence or being on remand because the offender will pose an unacceptable risk of committing a relevant offence if a supervision order is not made and the offender is in the community on the offender's release from custody on remand or at the end of the custodial sentence, whichever is earliest. The main purpose of this amendment is to address the issues arising from the case of DPP v AJP [No 2] (2016) VSC 198. Clause 19 amends section 11 of the Serious Sex Offenders (Detention and Supervision) Act 2009. Clause 19(1) inserts new section 11(1A) of the Serious Sex Offenders (Detention and Supervision) Act 2009. New section 11(1A) provides that if a court makes a supervision order in relation to an eligible offender and the offender is in custody on remand, the supervision order commences on the day which the offender is released from that custody. Clause 19(2) amends section 11(2) of the Serious Sex Offenders (Detention and Supervision) Act 2009 to ensure that if at the time of the making of a supervision order the offender is not in custody on remand, the order commences on the commencement date specified in the order. This complements the existing rule in section 11(2) of the Serious Sex Offenders (Detention and Supervision) Act 2009 that, if the offender is not serving a custodial sentence, the order commences on the commencement date specified in the order. 12

 


 

Clause 19(3) inserts new section 11(3) of the Serious Sex Offenders (Detention and Supervision) Act 2009. The amendment provides when supervision orders commence if an offender is held in immigration detention at the time the order is made. The new provision provides that the supervision order will commence on the release of the offender from immigration detention. This period for commencement takes into account the time required to undertake any appeals or reviews concerning the right of an offender to remain in Australia. Clause 20 concerns the operation of a final supervision order while an offender is held in immigration detention. New section 12(4A) of the Serious Sex Offenders (Detention and Supervision) Act 2009 provides that time ceases to run in relation to calculating the length of a final supervision order while the offender is held in immigration detention. The reason time does not run during a period of immigration detention (in contrast with imprisonment while under sentence or on remand) is that if an offender is likely to be deported from Australia, the Secretary may choose to conserve resources and only proceed with an application for an in interim supervision order pending the final determination of the offender's right to remain in Australia. New section 12(4A) also provides that the offender held in immigration detention is not required to comply with supervision order conditions. Corrections Victoria does not run nor does it have any involvement in immigration detention facilities and may not facilitate, observe or enforce supervision condition compliance. Finally new section 12(4A) specifies that the conditions of the supervision order commence when, and if, the offender is released from immigration detention. Clause 21 amends section 16(2) of the Serious Sex Offenders (Detention and Supervision) Act 2009 to provide that in relation to 2 core conditions of supervision orders, the Adult Parole Board has power to direct an offender to reside at a residential facility. Clause 22 amends section 17(1A)(b) of the Serious Sex Offenders (Detention and Supervision) Act 2009 concerning the suggested conditions of supervision orders that a court must consider when making an interim or final supervision order. The amendment specifies that offenders who are required or directed to wear an electronic monitoring device must ensure that the device remains operational at all times. 13

 


 

In practice, this will require the offender to ensure that devices such as ankle bracelets remain charged and operational. Charging electronic devices may be achieved without offenders removing the device from their bodies. Clause 22 also inserts a note at the foot of section 17(1A) referring to section 20 of the Serious Sex Offenders (Detention and Supervision) Act 2009 which provides that a condition may be imposed which authorises the Adult Parole Board to give any directions in relation to the operation of any condition of a supervision order or interim supervision order. Clause 23 adds an example to the list of examples at the foot of section 19 of the Serious Sex Offenders (Detention and Supervision) Act 2009. The purpose of section 19 is to allow courts to formulate any other discretionary conditions that are supported by the particular facts of the case and that will address the risks posed by the offender to the community. This is a wide-ranging discretion and is used by courts to manage unique risk factors that are not otherwise addressed by the core conditions of supervision orders or the optional conditions that the court is required to consider. Current examples of discretionary conditions include conditions regarding access to the Internet, drug and alcohol use, and a requirement for offenders to undergo treatment or programs regarding anger management or interpersonal skills. Clause 23 adds a further example of a discretionary condition to which an offender (to whom a supervision order relates) may be made subject in accordance with a direction of the Adult Parole Board. The new example concerns computers and other devices and their auditing. If a court determines that a condition of this type is appropriate, the powers set out in new Division 7A of Part 10, inserted by clause 52 of the Bill, will enable this condition to be enforced by the use of appropriate powers to search, seize and examine computers and other devices as well as the obligation to maintain a register of seized items. 14

 


 

Clause 24 amends section 24A of the Serious Sex Offenders (Detention and Supervision) Act 2009 in relation to restrictive conditions. Restrictive conditions were introduced to the post sentence supervision and detention scheme by the Serious Sex Offenders (Detention and Supervision) Amendment (Community Safety) Act 2016. There are 2 categories of restrictive conditions. The first category applies to every offender on a supervision order because the core conditions prohibiting further sexual offending or violent offending or conduct are always be restrictive conditions. The second category of restrictive conditions is set out in section 24A and applies depending on the individual circumstances of each case. Section 24A provides that a court may declare certain conditions (such as a curfew condition) to be a restrictive condition when making or renewing a supervision order or when reviewing the order or a condition of the order. Clause 24 amends section 24A of the Serious Sex Offenders (Detention and Supervision) Act 2009 to provide that, whether or not a declaration is made under section 24A(1), the court must update the core conditions of the supervision order to reflect any amendments to section 16 that have come into effect since the supervision order was made or last renewed or reviewed. Clause 25 substitutes section 35(1) of the Serious Sex Offenders (Detention and Supervision) Act 2009 with a new section 35(1). New section 35(1)(a) is a re-enactment of existing section 35(1). New section 35(1)(b) provides that the Supreme Court may make a detention order in respect of an eligible offender despite the offender serving a custodial sentence or being on remand because the offender will pose an unacceptable risk of committing a relevant offence if a detention order or supervision order is not made and the offender is in the community on the offender's release from custody on remand or at the end of the custodial sentence, whichever is earliest. The main purpose of this amendment is to address the issues arising from the case of DPP v AJP [No 2] (2016) VSC 198. 15

 


 

Clause 26 amends section 39 of the Serious Sex Offenders (Detention and Supervision) Act 2009. Clause 26(1) inserts new section 39(1A) of the Serious Sex Offenders (Detention and Supervision) Act 2009. New section 39(1A) provides that if a court makes a detention order in respect of an eligible offender and the offender is in custody on remand, the supervision order commences on the day which the offender is released from that custody. Clause 26(2) amends section 39(2) of the Serious Sex Offenders (Detention and Supervision) Act 2009. The effect of the amendment is that if at the time of the making of a detention order the offender is not in custody on remand, the order commences on the commencement date specified in the order. This amendment complements the existing rule in section 39(2) of the Serious Sex Offenders (Detention and Supervision) Act 2009 that if the offender is not serving a custodial sentence the detention order commences on the commencement date specified in the order. Clause 26(3) inserts new section 39(3) of the Serious Sex Offenders (Detention and Supervision) Act 2009 to provide that the detention order commences on the day the offender is released from immigration detention. Clause 27 inserts new section 40(4) of the Serious Sex Offenders (Detention and Supervision) Act 2009 to provide that if an offender is taken into immigration detention after the detention order has commenced, the time spent in immigration detention does not count in determining the remaining period of the detention order and the offender becomes subject again to the detention order on the offender's release from immigration detention. Clause 28 clarifies the powers available to a court in section 45A of the Serious Sex Offenders (Detention and Supervision) Act 2009 upon hearing an application to renew a detention order made under section 45. In addition to the powers to renew, revoke or decide not to renew or revoke a detention order, the Act will provide that the court may also make a supervision order, interim supervision order, or an interim detention order. A note referring to section 36 is also included. 16

 


 

Clause 29 amends existing section 53(a) of the Serious Sex Offenders (Detention and Supervision) Act 2009 which is deals with when a court may make an interim supervision order in respect of an eligible offender. Clause 29(1) substitutes section 53(a)(ii) of the Serious Sex Offenders (Detention and Supervision) Act 2009. New section 53(a)(ii) re-enacts existing section 53(a)(ii) without change. New section 53(a)(ii) provides that if the offender will no longer be in custody on remand when the application for the interim supervision order is determined and if the court is satisfied in relation to certain matters set out in that section, the court may make the order. Clause 29(2) amends section 53(c)(i) of the Serious Sex Offenders (Detention and Supervision) Act 2009. The effect of the amendment is that if at the time of the making of an interim supervision order the offender is not in custody on remand and the court is satisfied that it is in the public interest to make an interim supervision order (having regard to certain matters) the court may make the order. This clause complements the existing rule in section 53(1) of the Serious Sex Offenders (Detention and Supervision) Act 2009 about the making of an interim supervision order where a custodial sentence is also relevant. Clause 30 amends existing section 54(1)(a) of the Serious Sex Offenders (Detention and Supervision) Act 2009 which is about when a court may make an interim detention order in respect of an eligible offender. Clause 30(1) substitutes section 54(a)(ii) of the Serious Sex Offenders (Detention and Supervision) Act 2009. New section 54(a)(ii) is a re-enactment of existing section 54(a)(ii) and also provides that if the offender will no longer be in custody on remand when the application for the interim detention order is determined and the court is satisfied in relation to other matters set out in that section, the court may make the order. Clause 30(2) and clause 30(2) amend section 54(1)(c)(i) of the Serious Sex Offenders (Detention and Supervision) Act 2009. The effect of the amendment is that if at the time of the making of an interim detention order the offender is not in custody on remand and the court is satisfied that it is in the public interest to 17

 


 

make an interim detention order (having regard to certain matters) the court may make the order. This clause complements the existing rule in section 54 of the Serious Sex Offenders (Detention and Supervision) Act 2009 about the making of an interim detention order where a custodial sentence is also relevant. The main purpose of this amendment is to address the issues arising from the case of DPP v AJP [No 2] (2016) VSC 198. Clause 31 amends section 56 of the Serious Sex Offenders (Detention and Supervision) Act 2009 in relation to the commencement of interim detention orders and interim supervision orders. Clause 31(1) inserts new section 56(1)(ab) of the Serious Sex Offenders (Detention and Supervision) Act 2009 to provide that if a court makes a interim detention order or interim supervision order in respect of an eligible offender and the offender is in custody on remand, the supervision order commences on the day which the offender is released from that custody. Clause 31(2) amends section 56(1)(b) of the Serious Sex Offenders (Detention and Supervision) Act 2009 to provide that if at the time of the making of the interim order the offender is not in custody on remand, then the interim order commences on the day on specified in the order. Clause 31(3) inserts new 56(1A) of the Serious Sex Offenders (Detention and Supervision) Act 2009 to provide that if the offender is in immigration detention, the interim detention order or interim supervision order commences on the day the offender is released from immigration detention. Clause 32 amends section 57 of the Serious Sex Offenders (Detention and Supervision) Act 2009 and inserts new section 57(3) to provide that if the offender is taken into immigration detention after the interim detention order or interim supervision order has commenced, the time spent in immigration detention does not count in determining the remaining period of the interim detention order or interim supervision order and the offender becomes subject again to that order on the offender's release from immigration detention. 18

 


 

Clause 33 amends section 58A of the Serious Sex Offenders (Detention and Supervision) Act 2009 by inserting new section 12(4A). The effect of this amendment is that that the time remaining on an interim supervision order is not counted while the offender is held in immigration detention. The reason time does not run during a period of immigration detention (in contrast with imprisonment while under sentence or on remand) is that if an offender is likely to be deported from Australia, the Secretary may choose to conserve resources and only proceed with an application for in interim supervision order pending the final determination of the right of the offender to remain in Australia. Clause 34 amends section 68 of the Serious Sex Offenders (Detention and Supervision) Act 2009 to provide that an application for review of a detention order or supervision order can be made at any time including time during which an offender is serving a custodial sentence or is on remand. Clause 35 substitutes section 73(1) of the Serious Sex Offenders (Detention and Supervision) Act 2009. New section 73(1)(a) is a re-enactment of existing section 73(1) without change. New section 73(1)(b) provides that, on a review of a supervision order, a court may make a supervision order in respect of an eligible offender despite the offender serving a custodial sentence or being on remand because the offender will pose an unacceptable risk of committing a relevant offence if a supervision order is not made and the offender is in the community on the offender's release from custody on remand or at the end of the custodial sentence, whichever is earliest. The main purpose of this amendment is to address the issues arising from the case of DPP v AJP [No 2] (2016) VSC 198. Clause 36 substitutes section 74(1) of the Serious Sex Offenders (Detention and Supervision) Act 2009. New section 74(1)(a) re-enacts the substance of existing section 74(1) without change. New section 74(1)(b) provides that, on a review of a detention order, the Supreme Court may make a detention order in respect of an eligible offender despite the offender serving a custodial sentence or being on remand because the offender will pose an unacceptable risk of committing a relevant offence if a detention 19

 


 

order is not made and the offender is in the community on the offender's release from custody on remand or at the end of the custodial sentence, whichever is earliest. The main purpose of this amendment is to address the issues arising from the case of DPP v AJP [No 2] (2016) VSC 198. Clause 37 amends section 77(3)(a) of the Serious Sex Offenders (Detention and Supervision) Act 2009 to correct a typographical error by substituting "and" with "or". The effect of the amendment is to refer to "new facts or circumstances" in that provision. Clause 38 inserts new section 78A of the Serious Sex Offenders (Detention and Supervision) Act 2009. The purpose of this new section is to ensure an application to update core conditions of supervision orders can be made without leave so these conditions are updated as quickly as possible. The fact that Parliament has changed the core conditions is sufficient justification for the court to update the core conditions that apply to supervision orders. The new core conditions will apply from the time that the court updates the supervision order. Clause 38 also ensures that the court can make any variations or additions to the core conditions that are necessary to ensure the core conditions in section 16 of the Serious Sex Offenders (Detention and Supervision) Act 2009 are updated. This amendment will enable the courts to update orders more quickly to ensure appropriate supervision and management of the risks posed by violent sex offenders. If the Secretary seeks to add, vary, or remove other conditions other than the core conditions, leave of the court will still be required as per existing provisions of sections 68 and 77 of the Serious Sex Offenders (Detention and Supervision) Act 2009. Clause 39 amends section 92 of the Serious Sex Offenders (Detention and Supervision) Act 2009 to require persons who use force during the execution of a search warrant to report the use of force to the Chief Commissioner of Police as soon as practicable. New section 92(6) then requires the Chief Commissioner of Police to report this use of force to the Secretary. 20

 


 

This amendment recognises that while Victoria Police has important functions to perform with regards to serious sex offenders, responsibility for the administration, oversight and case management of these offenders remains with the Secretary. This amendment recognises that incidents involving increased risk to offenders or the public should be the subject of ongoing and consistent reporting. Clause 40 clarifies the grounds on which offenders may appeal decisions. Section 96 as amended by clause 40 explicitly allows offenders to appeal decisions to declare a condition of an interim supervision order to be a restrictive condition that may result in a minimum term of imprisonment of 12 months if breached. Clause 41 amends section 141 of the Serious Sex Offenders (Detention and Supervision) Act 2009 to insert new sections 141(5A) concerning visitors to residential facilities established for the safety of offenders and the community. Under current section 141, specified officers or supervision officers may require persons wishing to enter a residential facility to provide information regarding the purpose of their visit and may order visitors to leave the facility. Persons who fail to comply with an order to leave the facility may be compelled to leave the facility by the use of reasonable force. Use of force against members of the public is currently required by the Act to be reported to the officer in charge of the residential facility. The amendment to section 141 will require the officer in charge to report any use of force required pursuant to section 141 to the Commissioner of Corrections. In addition, new section 141(5B) requires the Commissioner to report such use of force to the Secretary. Clause 42 inserts new sections 141A and 141B into the Serious Sex Offenders (Detention and Supervision) Act 2009. New section 141A(1) provides that an offence should apply where a person intentionally or recklessly operates or attempts to operate a remotely piloted aircraft or helicopter, or is in possession of a remotely piloted aircraft above a residential facility (in any direction at or below 400 feet above ground level); in or at a residential facility; or outside but near a residential facility. The offence should apply where the operation or attempted operation of a remotely piloted aircraft or 21

 


 

helicopter, or possession of a remotely piloted aircraft, threatens, or is likely to threaten, the good order or security of a residential facility or any person in a residential facility. A person may have a reasonable excuse to the offence. The maximum penalty for the offence is set at two years imprisonment. New section 141A(2) provides that that offence will not apply if there is a lawful purpose for operating or attempting to operate a remotely piloted aircraft or a helicopter, or possessing a remotely piloted aircraft including if permitted by the Serious Sex Offenders (Detention and Supervision) Act 2009 or its regulations; or authorised by the officer in charge under new section 141B; or permitted by Commonwealth law. Exemptions to the offence also apply for the purposes of the law enforcement by a law enforcement agency; or for the purposes of an emergency, or recovery from an emergency, under the Emergency Management Act 2013. New section 141A(3) empowers a supervision officer or a specified officer to order a person to leave the neighbourhood of a residential facility on the basis of a reasonable belief that the person is committing, or has committed, an offence against new section 141A(1). New section 141A(4) provides that prior to giving an order to leave the neighbourhood a supervision officer or a specified officer is required to advise the person of the reason why the person is being ordered to leave the neighbourhood of the residential facility. New section 141A(5) provides for an offence for a person to disobey an order given by a supervision officer or a specified officer to leave the neighbourhood. A maximum penalty of 5 penalty units is set for the offence. New section 141A(6) empowers a supervision officer or a specified officer to apprehend a person without a warrant if the supervision officer or the specified officer believes on reasonable grounds that the person has committed an offence under new section 141A(1). New section 141A(7) requires a supervision officer or a specified officer who has apprehended a person without a warrant under new section 141A(6) in the reasonable belief that the person has committed an offence against new section 141A(1) to deliver the person into the custody of a police officer as soon as possible. 22

 


 

New section 141A(8) applies the Crimes Act 1958, except for sections 458(1) and 458(2) of the Crimes Act 1958, to the apprehension of a person without a warrant under new section 141A(6) with reference to the meaning of a person found committing an offence under section 458(1)(a) of the Crimes Act 1958. New section 141A(9) provides that in the event of any conflict with the Australian Constitution, the Commonwealth laws prevail to the extent of the inconsistency and the remaining valid Victorian laws will continue to operate. New section 141A(10) applies the meaning of inconsistency with Commonwealth laws under section 109 of the Australian Constitution to any inconsistency with a law of the Commonwealth under new section 141A(9). New section 141A(11) inserts new definitions for the law enforcement agency and remotely piloted aircraft. Law enforcement agency is defined to mean Victoria Police and the Australian Federal Police. Remotely piloted aircraft is defined to include controls for the aircraft. New section 141B empowers the officer in charge of a residential facility to authorise a person or a class of persons to operate or attempt to operate a remotely piloted aircraft or a helicopter or possess a remotely piloted aircraft in, at or outside but near a residential facility. Clause 43 amends section 142 to insert several new subsections into section 142) of the Serious Sex Offenders (Detention and Supervision) Act 2009. New section 142(2A) permits the officer in charge of a residential facility to order a supervision officer or a specified officer to conduct a search outside but near the residential facility if the officer in charge believes on reasonable grounds that a person has committed, or is committing an offence against section 141A(1). New section 142(2B) empowers a supervision officer or a specified officer to conduct a search outside but near a residential facility if the officer has a reasonable belief that a person is committing or has committed an offence against new section 141A(1). 23

 


 

New section 142(2C) sets out the search powers of a supervision officer or a specified officer when conducting a search under new sections 142(2A) and (2B). A supervision officer or a specified officer may-- • search and examine a person who the officer reasonably believes has committed the offence against section 141A(1); or • search the location at which the offence is reasonably believed to have been committed; or • require a person outside but near the residential facility to submit to a search if the officer reasonably believes that a thing on the person or in the person's possession will afford evidence of the commission of the offence; or • search and examine any thing outside but near the residential facility, including a place where offenders are, if the officer reasonably believes that the thing will afford evidence of the commission of the offence; or • seize any thing in accordance with new section 143(1A). Clause 43(2) amends section 142(4) of the Serious Sex Offenders (Detention and Supervision) Act 2009 to make it clear that searches conducted under new sections 142(2A) and (2B) means either or both a garment search or a pat-down search. Clause 43(3) inserts new sections 142(7C)-(7G) of the Serious Sex Offenders (Detention and Supervision) Act 2009. New sections 142(7C)-(7G) require reporting of the use of force by a supervision officer or specified officer to compel a person to leave a residential facility or to carry out a search. The officer must report the fact, as soon as possible, to the officer in charge of the residential facility. The officer in charge must report that fact as soon as possible to the Commissioner of Corrections who must report that fact to the Secretary. If use of force is by a police officer, the officer must report that fact as soon as possible to the Chief Commissioner of Police who must report that fact to the Secretary. If use of force is by a police officer to compel a person to leave a residential facility or to carry out a search, the officer must report that fact as soon as possible to the Chief 24

 


 

Commissioner of Police who must report that fact to the Secretary. Clause 44 inserts new section 143(1A) of the Serious Sex Offenders (Detention and Supervision) Act 2009. New section 143(1A) empowers a supervision officer or a specified officer to seize items including items found outside but near a residential facility when conducting searches under new sections 142(2A) and (2B) if the officer reasonably believes that the item seized will afford evidence of the commission of an offence against section 141A(1). Clause 44(2) inserts new section 143(6) to (10) of the Serious Sex Offenders (Detention and Supervision) Act 2009. New section 143(6) to (10) require reporting of the use of force by a supervision officer or specified officer in carrying out a seizure under section 143 of the Serious Sex Offenders (Detention and Supervision) Act 2009. The officer must report the fact, as soon as possible, to the officer in charge of the residential facility. The officer in charge must report that fact as soon as possible to the Commissioner of Corrections who must report that fact to the Secretary. If use of force is by a police officer in carrying out a seizure under section 143 of the Serious Sex Offenders (Detention and Supervision) Act 2009, the officer must report that fact as soon as possible to the Chief Commissioner of Police who must report that fact to the Secretary. If use of force is by a police officer to compel a person to leave a residential facility or to carry out a search, the officer must report that fact as soon as possible to the Chief Commissioner of Police who must report that fact to the Secretary. Clause 45 amends section 144(1) of the Serious Sex Offenders (Detention and Supervision) Act 2009 to extend the requirement of the Commissioner to maintain a register of things seized at a residential facility to include things seized outside but near a residential facility. Clause 46 inserts new section 146(4) of the Serious Sex Offenders (Detention and Supervision) Act 2009. Existing section 146(1A) of the Serious Sex Offenders (Detention and Supervision) Act 2009 permits a specified officer, when compelling an offender to obey an instruction, 25

 


 

to apply an authorised instrument of restraint or use reasonable force for the purpose of preventing the offender or another person from being killed or seriously injured. Existing section 146 requires these incidents to be reported to the officer in charge of a residential facility and the Commissioner of Corrections. Clause 46 inserts new section 146(4) which requires these actions to be reported to the Secretary. Clause 47 inserts new section 151(ab) of the Serious Sex Offenders (Detention and Supervision) Act 2009 to empower community corrections officers or specified officers to give instructions to ensure compliance with the conditions of a supervision order. This new power complements the existing powers of these officers to give directions regarding compliance with rehabilitation or treatment plans and directions of the Adult Parole Board. Community corrections officers and specified officers may only issue instructions that are reasonable and necessary for these purposes. Clause 48 inserts new section 152(4C) to (4F) of the Serious Sex Offenders (Detention and Supervision) Act 2009. The provisions require reporting of the use of force including carrying out of a search. If the use of force is by a community corrections officer or specified officer, that officer must report that fact as soon as possible to the Commissioner of Corrections who must report that fact to the Secretary. If the use of force is by a police officer, the officer must report that fact as soon as possible to the Chief Commissioner of Police who must report that fact to the Secretary. Clause 49 inserts new section 153(6) to (8) of the Serious Sex Offenders (Detention and Supervision) Act 2009. The provisions require reporting on the use of force including carrying out of a seizure and examination. If the use of force is by a community corrections officer or specified officer, that officer must report that fact as soon as possible to the Commissioner of Corrections who must report that fact to the Secretary. If the use of force is by a police officer, the officer must report that fact as soon as possible to the Chief Commissioner of Police who must report that fact to the Secretary. 26

 


 

Clause 50 inserts new section 158C(3) and (4) of the Serious Sex Offenders (Detention and Supervision) Act 2009. The provisions require reporting on the use of force if police officers use force to enter a premise under existing 158C. A police officer must report the use of force as soon as possible to the Chief Commissioner of Police who must report that fact to the Secretary. Clause 51 inserts new section 158DB(6) and (7) of the Serious Sex Offenders (Detention and Supervision) Act 2009. The provisions require reporting of the use of force if police officers use force to carry out a seizure under section 158DB. A police officer must report the use of force as soon as possible to the Chief Commissioner of Police who must report that fact to the Secretary. Clause 52 inserts new Division 7A into Part 10 of the Serious Sex Offenders (Detention and Supervision) Act 2009. The purpose of the Division is to provide for the auditing of an offender's computer and other devices. New section 158EA provides that the Division applies if a supervision order contains a provision requiring an offender to comply with a discretionary condition imposed under section 19 requiring the offender to comply with directions of the Adult Parole Board regarding the auditing of devices and computers for material that may constitute a breach of the conditions of the supervision order or increase the offender's risk of offending. New section 158EB defines the term device and provides that the term officer includes supervision officers, specified officers or police officers for the purpose of the Division. New section 158EC requires offenders to comply with directions of the Adult Parole Board to produce to an officer any device in the possession or control of the offender. New section 158ED permits searches to occur if an offender fails to comply with a direction of the Adult Parole Board to produce a device. The searched area may include the home or vehicle of the offender as well as an examination of the offender. Pat-down searches and garment searches are permitted by the new provision. Searches of the offender must only continue for as 27

 


 

long as necessary and, to the extent practicable, be conducted by a person of the same sex as the offender. If force is used pursuant to new section 158ED-- • police must report their use of force to the Chief Commissioner of Police and the Chief Commissioner must report to the Secretary; and • specified officers or supervision officers must report their use of force to the Commissioner of Corrections. The Commissioner must also report the use of force to the Secretary. To ensure clarity, the new provision defines the terms garment search and pat-down search. New section 158EE concerns seizure and examination if the offender fails to comply with a direction and allows officers to seize computers and devices for the purpose of auditing for material that may constitute a breach of conditions or increase the risk of reoffending. The auditing of offenders' computers and devices may be assisted by employees of Victoria Police or persons with relevant expertise delivering services on behalf of Victoria Police. If force is used pursuant to new sections 158ED or 158EE, police must report the use of force to the Chief Commissioner of Police and the Chief Commissioner must report to the Secretary. Specified officers or supervision officers must report their use of force to the Commissioner of Corrections. The Commissioner must also report the use of force to the Secretary. New section 158EF requires the Commissioner of Corrections to establish and maintain a register of things seized under this Division. The section specifies the details that must be recorded about each thing. The obligation to maintain the register does not apply to things seized by police who are required by existing section 158I to maintain a register of things seized by police. Clause 53 amends section 158F of the Serious Sex Offenders (Detention and Supervision) Act 2009 which sets out the requirements for the appointment of specified officers. Specified officers are prison officers who are also community corrections officers who are authorised to act as a specified officer for the purposes of 28

 


 

functions under the Serious Sex Offenders (Detention and Supervision) Act 2009. Specified officers assist community corrections staff and supervision officers undertaking duties in high risk situations. For example, during potentially volatile events such as when an offender must be informed that the Adult Parole Board has determined that it is appropriate that the offender relocate from a private residence to a residential facility such as Corella Place. While performing such work, section 158F provides that specified officers have the power to take actions necessary for the safety of the specified officer, the offender or any other person. Section 158F provides that specified officers have the power to use reasonable force and may apply instruments of restraint to prevent a person being killed or seriously injured. Clause 53 inserts new section 158F(3) to provide that if force or an instrument of restraint is used by a specified officer at a residential facility, the officer in charge of the facility must be informed. The officer in charge must inform the Commissioner of Corrections and the Commissioner must inform the Secretary. Should a specified officer use force or an instrument of restraint in a location that is not a residential facility, the Commissioner of Corrections must be informed and in turn must inform the Secretary. Clause 54 inserts references to new sections 158ED and 158EE in section 158G of the Serious Sex Offenders (Detention and Supervision) Act 2009 so that existing warning requirements in that section will apply to these new sections. Clause 55 amends section 158H of the Serious Sex Offenders (Detention and Supervision) Act 2009 to update references to those persons who may provide assistance for the purposes of a search or seizure power nominated in section 158EB, thereby allowing those officers to give directions to offenders requiring them to provide reasonable assistance to access data held in, or accessible from a device as well as copy information from a device. This amendment to the Act also explicitly permits data to be deleted from offenders' computers and devices. 29

 


 

Clause 56 amends section 158L of the Serious Sex Offenders (Detention and Supervision) Act 2009 to refer to new Division 7A of Part 10 of the Serious Sex Offenders (Detention and Supervision) Act 2009. The effect of this amendment is that the power and conditions on the retention of seized items by the Chief Commissioner of Police or Commissioner of Corrections apply where the retention occurs as a result of powers exercised in accordance with new Division 7A of Part 10. Clause 57 amends a minor typographical error in section 158P(2)(b) of the Serious Sex Offenders (Detention and Supervision) Act 2009 regarding a reference to the Chief Commissioner of Police. Clause 58 amends section 165 of the Serious Sex Offenders (Detention and Supervision) Act 2009 which sets out the powers of police to detain offenders if there are reasonable grounds to suspect that there is an imminent risk that the offender will breach a condition of a supervision order as set out in section 164. Police exercising the detention power have the ability to use force reasonably necessary to apprehend and detain an offender. New subsections (1A) and (1B) provide that, consistent with other accountability and oversight measures contained in the Act, if police use force when exercising the apprehension and detention power, the use of force must be reported to the Chief Commissioner of Police and the Chief Commissioner of Police must inform the Secretary. Clause 59 amends section 166 of the Serious Sex Offenders (Detention and Supervision) Act 2009 concerning the use of force if police are exercising the apprehension and detention power to carry out a search and force is used. In such circumstances the use of force must be reported to the Chief Commissioner of Police and the Chief Commissioner of Police must inform the Secretary. Clause 60 amends section 171A of the Serious Sex Offenders (Detention and Supervision) Act 2009 regarding police powers of entry to arrest an offender under the Serious Sex Offenders (Detention and Supervision) Act 2009. Section 171A provides police with the power to use reasonable force to carry out any search or a seizure for this purpose. This section, consistent with other reporting amendments in the Act, is amended to provide that the use of force in these circumstances must be reported to the Chief 30

 


 

Commissioner of Police and the Chief Commissioner must inform the Secretary. Clause 61 amends section 189 of the Serious Sex Offenders (Detention and Supervision) Act 2009 to permit the use or disclosure of personal or confidential information for the purpose of reducing the risk of a person committing a sexual offence or both a sexual offence and a violent offence. A definition of a sexual offence is inserted in section 189(4) to mean an offence listed in Schedule 1 to the Serious Sex Offenders (Detention and Supervision) Act 2009. For consistency, a similar provision is also included in clause 11 which amends the information sharing provisions in Part 9E of the Corrections Act 1986. Clause 62 amends section 198 of the Serious Sex Offenders (Detention and Supervision) Act 2009 to provide a regulation-making power for exemptions of a person or class of persons from an offence against new section 141A(1) inserted by clause 43. Clause 63 amends Schedule 1 (Relevant Offences) to the Serious Sex Offenders (Detention and Supervision) Act 2009 to insert 2 new items in relation to sexual offences that are relevant offences for the purposes of the serious sex offender scheme. The Crimes Amendment (Sexual Offences) Act 2016 will make changes to approximately 50 sexual offences in the Crimes Act 1958. As a result of those changes, that Act will also make consequential amendments to the list of relevant offences in Schedule 1 to the Serious Sex Offenders (Detention and Supervision) Act 2009. The amendments that will be made by the Crimes Amendment (Sexual Offences) Act 2016 will have the effect that offenders who have been convicted and sentenced to imprisonment in the past in respect of two current incest offences will no longer be eligible for a post-sentence order under the Serious Sex Offenders (Detention and Supervision) Act 2009. The two offences are-- • incest by sexual penetration of a parent, step-parent or lineal ancestor (under section 44(3) of the Crimes Act 1958), and 31

 


 

• incest by sexual penetration of a sibling or half-sibling in circumstances where both people are aged over 18 and each consent to the sexual act (under section 44(4) of the Crimes Act 1958). Currently, item 2 of Schedule 1 provides that a relevant offence is an offence against a provision of Subdivisions (8B) to (8EA) of the Crimes Act 1958 that involves sexual penetration. This currently includes the 2 incest offences under section 44(3) and (4) of the Crimes Act 1958. Section 42(1) of the Crimes Amendment (Sexual Offences) Act 2016 will amend the Serious Sex Offenders (Detention and Supervision) Act 2009 to substitute a new item 1 for the existing items 1 and 2 of Schedule 1. The new item 1 will be "an offence against a provision of Subdivisions (8A) to (8FA) of Division 1 of Part I of the Crimes Act 1958 that involves sexual penetration". This will include new sections 50E and 50F of the Crimes Act 1958, which will create offences for sexual penetration of a parent, step-parent or lineal ancestor and sexual penetration of a sibling or half-sibling respectively. This means that offenders who are convicted and sentenced to imprisonment for the new incest offences in sections 50E and 50F (post-commencement of the Crimes Amendment (Sexual Offences) Act 2016) will be eligible for a post-sentence order. However, offenders who have been convicted and sentenced in the past under the current section 44(3) or (4) of the Crimes Act 1958 will no longer be eligible. Section 42(5) of the Crimes Amendment (Sexual Offences) Act 2016 will amend the Serious Sex Offenders (Detention and Supervision) Act 2009 to insert a new item 35B into Schedule 1 so that a relevant offence will include offences listed in clause 1(a)(iv)-(xviii) of Schedule 1 to the Sentencing Act 1991 as in force immediately before their repeal. This will preserve historical convictions for other incest offences for the purposes of Serious Sex Offenders (Detention and Supervision) Act 2009, but will not preserve the two incest offences referred to above. 32

 


 

The narrowing of the range of offenders who are eligible for a post-sentence order was unintentional. Clause 63 rectifies this oversight and reinstates the 2 existing incest offences as relevant offences in Schedule 1 for the purposes of offender eligibility. Clause 63(2) amends item 38 of Schedule 1 to correct a grammatical error. Part 4--Amendment of the Children, Youth and Families Act 2005 Clause 64 inserts new Division 3AA into Part 5.8 of the Children, Youth and Families Act 2005. New section 488DA inserts the definition of youth justice facility which means a remand centre, a youth residential centre or a youth justice centre but does not include a youth justice unit. New section 488DB(1) provides that an offence should apply where a person intentionally or recklessly operates or attempts to operate a remotely piloted aircraft or helicopter, or is in possession of a remotely piloted aircraft above a youth justice facility (in any direction at or below 400 feet above ground level); in or at a youth justice facility; or outside but near a youth justice facility. The offence should apply where the operation or attempted operation of a remotely piloted aircraft or helicopter, or possession of a remotely piloted aircraft, threatens, or is likely to threaten, the good order or security of a youth justice facility or any person in a youth justice facility. A person may have a reasonable excuse to the offence. The maximum penalty for the offence is set at 2 years imprisonment. New section 488DB(2) provides that the offence will not apply if there is a lawful purpose for operating a remotely piloted aircraft or a helicopter, or possessing a remotely piloted aircraft including if permitted by the Children, Youth and Families Act 2005 or its regulations; or authorised by the officer in charge under new section 488DC; or permitted by Commonwealth law. Exemptions to the offence also apply for the purposes of law enforcement by a law enforcement agency; or the purposes of an emergency, or recovery from an emergency, under the Emergency Management Act 2013. 33

 


 

New section 488DB(3) empowers an officer of a youth justice facility to order a person to leave the neighbourhood of the youth justice facility on the basis of a reasonable belief that the person is committing, or has committed, an offence against new section 488DB(1). New section 488DB(4) provides that prior to giving an order to leave the neighbourhood an officer is required to advise the person of the reason why they are being ordered to leave the neighbourhood of the youth justice facility. New section 488DB(5) provides for an offence for a person to disobey an order given by an officer to leave the neighbourhood. A maximum penalty of 5 penalty units is set for the offence. New section 488DB(6) empowers an officer to apprehend a person without a warrant if the officer believes on reasonable grounds that the person has committed an offence under new section 488DB(1). New section 488DB(7) requires an officer who has apprehended a person without a warrant in the reasonable belief that the person has committed an offence against new section 488DB(1) to deliver the person into the custody of a police officer as soon as possible. New section 488DB(8) applies the Crimes Act 1958, except for sections 458(1) and 458(2) of the Crimes Act 1958, to the apprehension of a person without a warrant under new section 488DB(6) with reference to the meaning of a person found committing an offence under section 458(1)(a) of the Crimes Act 1958. New section 488DB(9) clarifies that in the event of any conflict with the Australian Constitution, the Commonwealth laws prevail to the extent of the inconsistency and the remaining valid Victorian laws will continue to operate. New section 488DB(10) applies the meaning of inconsistency with Commonwealth laws under section 109 of the Australian Constitution to any meaning of any inconsistency with a law of the Commonwealth under new section 488DB(9). 34

 


 

New section 488DB(11) inserts new definitions of law enforcement agency and remotely piloted aircraft. Law enforcement agency is defined to include Victoria Police and the Australian Federal Police. Remotely piloted aircraft is defined to include controls for the aircraft. New section 488DC empowers the officer in charge of a youth justice facility to authorise a person or a class of persons to operate or attempt to operate a remotely piloted aircraft or a helicopter or to possess a remotely piloted aircraft in, at or outside but near a youth justice facility. New section 488DD(1) permits the officer in charge to order an officer of a youth justice facility to conduct a search outside but near the youth justice facility if the officer in charge believes on reasonable grounds that a person has committed, or is committing an offence against section 488DB(1). New section 488DD(2) empowers an officer of a youth justice facility to conduct a search outside but near a youth justice facility if the officer has a reasonable belief that a person is committing or has committed an offence against new section 488DB(1). New section 488DD(3) sets out the search powers of an officer of a youth justice facility when conducting a search under new sections 488DD(1) or (2). An officer may-- • search and examine a person who the officer reasonably believes has committed the offence against section 488DB(1); or • search the location at which the offence is reasonably believed to have been committed; or • require a person outside but near the youth justice facility to submit to a search if the officer reasonably believes that a thing on the person or in the person's possession will afford evidence of the commission of the offence; or • search and examine any thing outside but near the youth justice facility, including a place where detainees are, if the officer reasonably believes that the thing will afford evidence of the commission of the offence; or • seize any thing in accordance with new section 488DE. 35

 


 

New section 488DD(4) provides that before carrying out a search under new sections 488DD(1) or (2), an officer must inform the person of the officer's authority to conduct the search and that the person may refuse the search. New section 488DD(5) provides that the officer in charge may at any time make an order terminating a search under new sections 488DD(1) or (2). New section 488DD(6) provides that searches under new sections 488DD(1) or (2) must be conducted in accordance with the regulations. New section 488DE(1) empowers an officer of a youth justice facility to seize items including items found outside but near a youth justice facility when conducting searches under new sections 488DD(1) or (2) if the officer reasonably believes that the item seized will afford evidence of the commission of an offence against section 488DB(1). New section 488DE(2) ensures that any item seized under new section 488DE(1) is reported to the officer in charge. New section 488DE(3) provides that the officer in charge must deal with any thing seized under new section 488DE in accordance with sections 488F, 488G, 488GA, 488GB, 488GC and 488GD. Part 5--Repeal of the amending Act Clause 65 repeals this amending Act on 1 February 2019. This date is a date after which all provisions of the Act will have commenced, either by proclamation or by operation of the default commencement date set out in clause 2 (12 months before repeal date specified). The repeal of this amending Act does not affect the continuing operation of the amendments made by it. See section 15(1) of the Interpretation of Legislation Act 1984. 36

 


 

 


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