Corrections and Other Justice Legislation (Amendment) Bill

Corrections and Other Justice Legislation (Amendment) Bill

As Sent Print

EXPLANATORY MEMORANDUM

551469

BILL LA AS SENT 20/7/2006

Clause Notes

PART 1—PRELIMINARY

Clause 1sets out the purposes of the Bill. These are to—

• make miscellaneous amendments to the Corrections Act 1986 and the Serious Sex Offenders Monitoring Act 2005. These amendments are intended to facilitate the effective operation of these Acts.

• amend the Firearms Act 1996 and the Firearms (Further Amendment) Act 2005 in relation to the disposal of forfeited firearms. These amendments overcome a limitation in the persons and bodies which may be given forfeited firearms.

• make amendments of a statue law revision nature.

Clause 2provides for the commencement of the Bill.

The Bill, other than sections 5, 12(1), 13 and 18, commences on the day after it receives the Royal Assent.

Sections 5, 12(1), 13 and 18 commence operation upon proclamation. This will allow for the making of associated regulatory changes consequent upon these amendments. Thesesections will commence on 1 October 2006 if they are notin operation before that date.

PART 2—AMENDMENT OF THE CORRECTIONS ACT 1986

Clause 3amends the definition of "offender" in section 3(1) of the Corrections Act 1986 as a consequence of the amendments to the victims register provisions in sections 30A to 30I of that Act made by clause 5. As the term "offender" in those provisions refers to only to an offender who may be subject to an extended supervision order under the Serious Sex Offenders Monitoring Act 2005, the more general definition of "offender" in section 3(1) will not apply to those provisions.

Clause 4amends the definition of "order of imprisonment" in section 6(d) of the Corrections Act 1986 to address a gap in this definition as it applies to certain federal offenders who may be transferred to Victoria under the national scheme for the interstate transfer of prisoners (the scheme).

The scheme is underpinned by complementary Commonwealth and State legislation, including the Prisoners (Interstate Transfer) Act 1983. The scheme allows prisoners serving a State or federal sentence to be transferred between participating States for trial and welfare purposes. The Commonwealth legislation that forms part of the scheme also provides for prisoners who are serving a sentence of imprisonment or are remanded in custody for a federal offence to be transferred between States on security grounds.

Existing section 6(d) of the Corrections Act 1986 recognises certain transfer orders made under the scheme as an "order of imprisonment". This ensures that a prisoner transferred under one of these orders can be detained as a prisoner in the legal custody of the Secretary to the Department of Justice (the Secretary). However, this definition recognises only transfers made on trial grounds under the relevant Commonwealth legislation. The amendment will rectify this to recognise all transfer orders made under the Commonwealth legislation.

Clause 5extends the information that may be given to a registered victim under section 30A of the Corrections Act 1986 and amends associated provisions in sections 30C, 30D, 30G and 30I of that Act. The purpose of these changes is to expand the information that can be provided to a registered victim to include certain information about an offender who may be subject to an extended supervision order under the Serious Sex Offenders Monitoring Act 2005.

Clauses 5(1)(a) and (b) amend existing paragraph (d) in the definition of "victim" in section 30A(1) of the Corrections Act 1986, which applies to a spouse or domestic partner of a prisoner who has an intervention order in force against the prisoner under the Crimes (Family Violence) Act 1987. The effect of clauses 5(1)(a) and (b) is to extend this limb of the definition of "victim" to apply to a spouse or domestic partner of an offender who is or was subject to an extended supervision order or an application for such an order, and who has an intervention order in force against that offender. Such a victim may be given specified information about the offender under new section 30A(2AA).

Clause 5(1)(c) inserts definitions of "extended supervision order" and "relevant offence" in section 30A (1) of the Corrections Act 1986. These terms have the same meaning as under the Serious Sex Offenders Monitoring Act 2005.

Clause 5(2) inserts a new section 30A(2AA) in section 30A of the Corrections Act 1986 to specify the information that may be given to certain registered victims in relation to an offender who may be subject to an extended supervision order. Under this new provision, the Secretary may give a registered victim information about an application for an extended supervision order and the outcome of that application. If an extended supervision order is made or renewed, the registered victim may also be given—

• details about the order, including supervision instructions or directions given to the offender by the Adult Parole Board that are relevant to the registered victim;

• details of any changes affecting the order's operation; and

• details of any suspension or revocation of the order.

As with existing section 30A(2) which enables information about a prisoner to be given to a registered victim, section 30A(2AA) requires that there be a nexus between the registered victim and the offender in question. The Secretary can give the information specified in new section 30A(2AA) to a person who has been included on the victims register in respect of a relevant offence for which the offender is or was subject to an extended supervision order or an application for such an order.

This clause also inserts new section 30A(2AB) into section 30A of the Corrections Act 1986. This new section makes it clear that a registered victim can be given the information in section 30A(2AA) despite a suppression order made under section 42 of the Serious Sex Offenders Monitoring Act 2005 (unless that suppression orders expressly prohibits publication to a victim) and despite the information sharing provisions in section 43 and44 of the Serious Sex Offenders Monitoring Act 2005.

Clauses 5(3) and 5(4) amend existing sections 30A(2A) and 30A(3) of the Corrections Act 1986 respectively, which deal with the provision of information to a nominee of a registered victim, as a consequence of the insertion of new section 30A(2AA). These amendments enable the Secretary to give a nominee of a registered victim the information about an offender specified in new section 30A(2AA), unless doing might endanger the safety or welfare of the offender or another person.

Clauses 5(5) and 5(6) amend existing sections 30C(1) and 30C(2) of the Corrections Act 1986 respectively, which deal with the circumstances in which a person who applies to be included on the victims register may or must be included on the register. Theamendments make inclusion on the register subject to new section 30C(4), which makes it clear that the Secretary need not include a person on the register once the relevant sentence of imprisonment or relevant extended supervision order has expired.

Clause 5(7) amends existing section 30C(3) of the Corrections Act 1986, which gives the Secretary a discretion to include on the register certain persons who do not come within the definition of "victim" but have another specified connection with the prisoner. These are if the person can demonstrate—

• a documented history of domestic violence being committed against the person by a prisoner; or

• a substantial connection to the offence for which the prisoner is serving the sentence of imprisonment.

The effect of clause 5(7) is to extend this discretion to allow the Secretary to include a person on the register who can demonstrate—

• a documented history of violence being committed against that person by an offender who is or was subject to an extended supervision order or an application for such an order; or

• a substantial connection to the relevant offence for which the offender is or was subject to an extended supervision order or an application for such an order.

Clause 5(8) inserts new section 30C(4) into the Corrections Act 1986. This new section clarifies that the Secretary need not include a person on the register once the relevant sentence of imprisonment of the prisoner or relevant extended supervision order of the offender has expired.

Clause 5(9) amends existing section 30D of the Corrections Act 1986, which deals with the circumstances in which the Secretary may refuse to include details of a nominee on the victims register. This amendment is consequential upon insertion of new section 30A(2AA). The amendment makes it clear that the Secretary may refuse to include a nominee if disclosure of information to that nominee may endanger the safety or welfare of the offender.

Clause 5(10) makes a consequential amendment to existing section 30G of the Corrections Act 1986, further to the insertion of new section 30A(2AA) in that Act. Section 30G precludes the disclosure of information to a family member included on the victims register unless the person can show he or she was the primary care giver or next of kin of the person who was the subject of the offence for which the prisoner is serving a sentence of imprisonment. The effect of clause 5(10) is to impose a similar limitation on providing information to a family member of a person who was the subject of the relevant offence for which the offender is or was subject to an extended supervision order or application for such an order.

Clause 5(11) makes some amendments to existing section 30I of the Corrections Act 1986 as a consequence of the insertion of new section 30A(2AA) in that Act. Section 30I makes it an offence to publish information that has been disclosed about a prisoner under section 30A. The amendments to this section ensure that this offence similarly applies to information about an offender that is disclosed under section 30A.

Clause 6amends the powers that may be exercised in executing arrest warrants issued by or an application of the Adult Parole Board under the Corrections Act 1986. The amendments allow police to break, enter and search a place to execute these warrants.

Sections 60M(10) and 60R(2)(b) of the Corrections Act 1986 allow the Adult Parole Board to issue a warrant to a police member to arrest and take to prison an offender whose home detention order has been revoked. Clause 6(1) amends these sections to empower police to break, enter and search a place where the offender is believed to be to execute the relevant warrant.

Section 77(6)(a) allows the Adult Parole Board to issue a warrant to a police member to arrest and take to prison a prisoner whose parole order has been cancelled. Clause 6(2) similarly amends this section to empower police to break, enter and search a place where the offender is believed to be to execute the warrant.

Section 77(6)(b) allows a magistrate, on application authorised by the Adult Parole Board, to issue a warrant to a police member or other officer to arrest and take to prison a prisoner whose parole has been cancelled. Clause 6(3) substitutes this section with a new section 77(6)(b). The effect of this amendment is that a police member is empowered to break, enter and search a place where the offender is believed to be to execute the warrant. These additional powers do not apply to other officers executing an arrest warrant under new section 77(6)(b).

Clause 7inserts new Divisions 6 and 7 in Part 8 of the Corrections Act 1986.

New Division 6 of Part 8 provides for new requirements for the approval of name change applications by or on behalf of a prisoner on parole.

New section 79 makes it clear that Division 6 applies despite anything to the contrary in the Births, Deaths and Marriages Registration Act 1996.

New section 79A sets out definitions that apply for the purposes of Division 6.

A "change of name application" is defined to mean an application by or on behalf of a prisoner on parole for registration of a change of the prisoner's name.

"Victorian Registrar" is defined to mean the Registrar of Births, Deaths and Marriages under the Births, Deaths and Marriages Registration Act 1996.

New section 79B prohibits a prisoner on parole or another person on behalf of such a prisoner from making a change of name application to a Registrar without the Adult Parole Board's written approval. The maximum penalty for contravention of this prohibition is 5 penalty units.

This prohibition applies to an application to either the Victorian Registrar or an equivalent authority in another State or Territory.

New section 79C provides for the Adult Parole Board's power to approve a change of name application by a prisoner on parole.

Under new section 79C(1), the Adult Parole Board may only approve a change of name application if it is satisfied that the change of name is necessary or reasonable in all the circumstances. This is subject to new section 79C(2), which provides that the Adult Parole Board must not approve a change of name application if it is satisfied that the change of name would be reasonably likely to—

• be regarded as offensive by a victim of crime or an appreciable sector of the community; or

• be used to hinder the prisoner's supervision during parole.

New section 79D requires the Adult Parole Board, if it approves a change of name application, to provide written notice to the person who made the application as soon as practicable.

The Adult Parole Board must also provide a copy of the approval to the Victorian Registrar if the prisoner consents.

Under new section 79E, the Victorian Registrar must not register a change of name if—

• he or she knows that the change of name application has been made by or on behalf of a prisoner on parole; and

• the Victorian Registrar has not received a copy of the Adult Parole Board's notice of approval of the application under new section 79D.

New section 79F empowers the Victorian Registrar to correct the Register under section 43 of the Births, Deaths and Marriages Registration Act 1996 if—

• the name of a prisoner on parole was changed because of a change of name application; and

• the Adult Parole Board had not approved the change of name application under section 79C.

This ensures that the Registrar can correct the Register if an unauthorised name change by a prisoner on parole is inadvertently registered.

New section 79G makes it clear that a name change by or on behalf of a prisoner on parole lapses if the prisoner's parole is cancelled, if that name change has yet to be registered before the cancellation. A prisoner whose parole has been revoked and who is returned to custody would be subject to the existing requirements for the approval of a prisoner's name change under Division 5 of Part 6 of the Corrections Act 1986.

New section 79H(a) requires the Secretary to give the name of a prisoner on parole and certain other details to the Victorian Registrar. This is intended to ensure that the Victorian Registrar is provided with relevant information to facilitate the effective operation of the new name change approval process. Ifthe Secretary has given a notification of this information under new section 79H(a), the Secretary is required under new section 79H(b) to notify the Victorian Registrar as soon as possible of any cancellation of the prisoner's parole.

New Division 7 of Part 8 of the Corrections Act 1986 makes specific provision for certain procedural matters relating to warrants issued under that Part.

New section 79I specifies that a warrant issued under Part 8 of the Corrections Act 1986 must be executed by the use of the original warrant or a copy of the original warrant.

New section 79J specifies that the Adult Parole Board can recall and reissue an arrest warrant it has issued under section 60M(10), 60R(2)(b) or 77(6)(b) of the Corrections Act 1986. Amagistrate can similarly recall and reissue a warrant issued by a magistrate under section 77(6)(b) of the Corrections Act 1986. New section 79J(3) makes it clear that the Adult Parole Board or a magistrate can issue a fresh warrant for the same purpose as the original warrant.

New section 79K(1) specifies that the Adult Parole Board or a magistrate, as the case may be, may issue a duplicate warrant where a warrant issued under section 60M(10), 60R(2)(b), 77(6)(b) or 77(6)(b) of the Corrections Act 1986 has been lost or destroyed before execution. Under new section 79K(2), the duplicate warrant may be executed in the same way as the original warrant. New section 79K(3) makes it clear that the original warrant becomes void on the issue of a duplicate, and makes provision for the return of the original warrant if located.

Clause 8inserts transitional provisions into the Corrections Act 1986 relating to the changes to the warrant powers made by clauses 6 and 7 and the new requirements for the approval of a name change application by a prisoner on parole contained in clause 7.

New section 115B(1) of the Corrections Act 1986 specifies that the new powers to break, enter and search premises to execute warrants inserted into that Act by clause 6 only apply to warrants issued on or after the commencement of those new powers.

New section 115B(2) of the Corrections Act 1986 specifies that the new requirements for name change applications by prisoners on parole contained in new Division 6 of Part 8 apply to a change of name application received but not registered by the Registrar before the commencement of that clause.

New section 115B(4) of the Corrections Act 1986 specifies that the provisions in new Division 7 of Part 8 of that Act relating to the execution and recall and cancellation of warrants and the issue of duplicate warrants only apply to warrants issued on or after the commencement of these provisions, and warrants that remain to be executed at that date.

Clause 9contains an amendment of a statute law revision nature. Thissection repeals redundant unproclaimed provisions of the Corrections (Management) Act 1993.

PART 3—AMENDMENT OF THE SERIOUS SEX OFFENDERS MONITORING ACT 2005

Clause 10inserts a new definition of "physical examination" in section 3(1) of the Serious Sex Offenders Monitoring Act 2005. Thisamendment is consequential uponthe amendment to section28(2) of that Act made by clause 16 and the insertion ofnew section 7A in that Act by clause 11.

Clause 11inserts a new section 7A into the Serious Sex Offenders Monitoring Act 2005. New section 7A(1) empowers the Secretary to direct an offender to attend a personal examination under that Act. This will facilitate the effective operation of that Act by ensuring that the Secretary can require an offender to attend a personal examination for the purposes of making an assessment report. An assessment report must accompany an application for an extended supervision order in accordance with section 6 of that Act.

New section 7A(2) specifies that the Secretary can vary or revoke a direction by written notice to the offender.

New section 7A(3) makes it an offence for an offender to fail to comply with a direction to attend for a personal examination without reasonable excuse, to deter non-compliance with such a direction. The maximum penalty for this offence is level 7 imprisonment (2 years).

New section 7A(4) makes it clear that a medical expert can make an assessment report if the offender has not complied with a direction to attend for a personal examination. This ensures that an offender cannot prevent a medical expert from making an assessment report by failing to attend for a personal examination.