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PRISONERS (INTERSTATE TRANSFER) (AMENDMENT) BILL 2005

  Prisoners (Interstate Transfer) (Amendment)
                        Bill

                         Introduction Print

              EXPLANATORY MEMORANDUM


                               Clause Notes

                        PART 1--PRELIMINARY
Clause 1   sets out the purpose of the Bill, which is to--
             ·      amend the Prisoners (Interstate Transfer) Act 1983 to
                    clarify and expand the grounds to be considered by the
                    Minister in assessing requests by prisoners to be
                    transferred to or from Victoria. These amendments will
                    implement in Victoria changes agreed at the national
                    level to the national co-operative legislative scheme for
                    the interstate transfer of prisoners.
             ·      amend the Corrections Act 1986 to--
                    ·      make provision in relation to people on extended
                           supervision orders under the Serious Sex
                           Offenders Monitoring Act 2005 who have been
                           directed to attend at community corrections
                           centres, or receive visits from officers, for the
                           purposes of that Act. The Serious Sex
                           Offenders Monitoring Act 2005 provides for
                           offenders who have served custodial sentences
                           for certain sexual offences to be subject to
                           ongoing supervision in the community. As part
                           of the conditions of an extended supervision
                           order, the Secretary to the Department of Justice
                           (the Secretary) can direct a person subject to
                           such an order to report to and receive visits from
                           the Secretary or nominee.




                                      1
551359                                       BILL LA INTRODUCTION 3/10/2005

 


 

· improve the administration of the Corrections Act 1986. The amendments to that Act improve the operation of the Adult Parole Board's powers relating to the cancellation of parole, clarify an uncertainty regarding the operation of the statutory immunity of the Adult Parole Board and update that immunity, and clarify the power of a Regional Manager to use force under section 90(7) of the Corrections Act 1986. Clause 2 provides for the commencement of the Bill. The Bill, other than Part 2 and section 7(1), commences on the day after it receives the Royal Assent. Part 2, which amends the Prisoners (Interstate Transfer) Act 1983, commences on 1 February 2006. This will afford an opportunity for prisoners to familiarise themselves with the changes to that Act. Section 7(1), which amends the Adult Parole Board's power in section 77(5) of the Corrections Act 1986 to cancel a prisoner's parole, commences operation upon proclamation. This will allow for the making of associated regulatory changes consequent upon this amendment. Section 7(1) will commence on 28 February 2006 if it is not in operation before that date. PART 2--AMENDMENTS TO THE PRISONERS (INTERSTATE TRANSFER) ACT 1983 Part 2 makes amendments to the Prisoners (Interstate Transfer) Act 1983 to clarify and expand the matters to which the Minister can have regard in assessing requests from prisoners to be transferred to or from Victoria. Clause 3 inserts a new section 10A into the Prisoners (Interstate Transfer) Act 1983 which specifies the matters to which the Minister may have regard in forming an opinion or exercising a discretion under Part 2 of that Act. These matters are the welfare and safe custody of the prisoner concerned, as well as a number of other specified matters, for example the protection of the community. The Minister may also have regard to any other matter he or she considers relevant. The Minister will be able to have regard to these matters in considering both requests for prisoners to transfer interstate from Victoria, and requests from prisoners to transfer to Victoria under Part 2 of the Prisoners (Interstate Transfer) Act 1983. 2

 


 

Clause 4 makes some amendments to Part 2 of the Prisoners (Interstate Transfer) Act 1983 consequential upon the insertion of new section 10A in that Act. Clause 4(a) amends the heading to Part 2 to better reflect the nature of the transfers under that Part. The effect of this amendment is to replace the existing heading to Part 2, "Transfer for Prisoner's Welfare", with the new heading "Transfer at Request of Prisoner". This reflects the fact that a range of matters may be taken into account under new section 10A in considering a prisoner's interstate transfer request in addition to the prisoner's welfare. Clause 4(b) removes a number of references in Part 2 to a transfer being "in the interests of the welfare of the prisoner", given the broader range of matters under new section 10A to which the Minister may have regard in exercising discretions under Part 2. Clause 4(c) amends section 11 of the Prisoners (Interstate Transfer) Act 1983, which makes provision for the manner in which the Minister may inform himself in exercising discretions under Part 2 of that Act. Section 11 specifies that the Minister may inform himself as he thinks fit, and in particular "may have regard" to certain reports. This reference will be removed to avoid confusion, given that new section 10A comprehensively provides for the substantive matters to which the Minister may have regard in exercising discretions under Part 2. This reference in section 11 is replaced under clause 4(c) with a reference to the Minister informing himself "by reference" to the reports referred to in that section. Clause 5 amends Part 4 of the Prisoners (Interstate Transfer) Act 1983 to clarify and expand the matters to which the Minister may have regard in forming an opinion or exercising a discretion under that Part. Part 4 of the Prisoners (Interstate Transfer) Act 1983 provides for the interstate transfer of prisoners for trial purposes and the return of those prisoners to their originating jurisdictions after trial. Section 23(1)(a) enables a prisoner who has been transferred to Victoria on trial grounds to remain in Victoria to serve his or her sentence at that prisoner's request. That section applies where the relevant Ministers agree that it is in the interests of the prisoner's welfare for the prisoner to serve his or her sentence in Victoria. 3

 


 

Clause 5(1) removes the reference in section 23(1)(a) to Ministers agreeing that a prisoner should serve his or her sentence in Victoria in the interests of the prisoner's welfare, given the broader range of matters under new section 23(1A) to which the Minister can have regard in exercising this discretion. Clause 5(2) inserts a new section (1A) into section 23 of the Prisoners (Interstate Transfer) Act 1983 which specifies the matters to which the Minister may have regard in forming an opinion or exercising a discretion under Part 4 of that Act. These matters mirror the matters to which the Minister may have regard in forming an opinion or exercising a discretion under Part 2 of the Act. This will ensure that the Minister may have regard to a consistent range of matters in considering a transfer request made by a prisoner, whether that request is made after trial or under the more general transfer provisions in Part 2 of the Prisoners (Interstate Transfer) Act 1983. PART 3--AMENDMENTS TO THE CORRECTIONS ACT 1986 Clause 6 makes some amendments to the statutory immunity of the Adult Parole Board and its members under section 69(3) of the Corrections Act 1986. This clause replaces the existing immunity in section 69(3) with new sections 69(3) to (5). The purpose of these amendments is to-- · clarify an uncertainty as to whether the existing immunity in section 69(3) applies to the Adult Parole Board's powers under legislation other than the Corrections Act 1986; and · update that immunity in a number of respects. Clause 6(3) replaces the existing immunity for the Adult Parole Board and its members under section 69(3) with a new immunity for members of the Adult Parole Board. This new immunity applies in relation to any of the Adult Parole Board's functions under section 69(1) of the Corrections Act 1986. Section 69(1) provides that the Adult Parole Board has the functions conferred on it by the Corrections Act 1986 and a number of other Acts, including the Sentencing Act 1991 and the Serious Sex Offenders Monitoring Act 2005. This new immunity gives members of the Adult Parole Board the same immunity from personal liability when exercising any of their statutory functions, whether under the Corrections Act 1986 or other relevant legislation. 4

 


 

The immunity in new section 69(3) has been updated in a number of respects from the existing immunity in section 69(3) of the Corrections Act 1986. The existing immunity in section 69(3) applies to both members of the Adult Parole Board and the Adult Parole Board as such. The immunity in new section 69(3) is restricted to members of the Adult Parole Board only. An immunity for members of the Adult Parole Board is necessary to ensure that they can exercise their functions independently, without fear of vexatious legal actions. However, it is no longer considered appropriate for the Adult Parole Board to have an immunity from liability, as this would preclude any legal recourse for liability arising from the exercise of the Adult Parole Board's functions. Unlike the existing immunity in section 69(3), the immunity in new section 69(3) does not protect members of the Adult Parole Board from criminal liability. It is no longer considered appropriate to provide members of the Adult Parole Board with a statutory immunity from criminal actions arising from the exercise of their functions. Clause 6(4) inserts a new section 69(4) into the Corrections Act 1986 that provides that any liability that would otherwise attach to a member of the Adult Parole Board but for the immunity in new section 69(3) attaches instead to the Adult Parole Board itself. This transfer of liability means that while Adult Parole Board members will not be personally liable for acts and omissions covered by new section 69(3), the Adult Parole Board as such will bear any liability for those acts and omissions. Clause 6(5) deems the new immunity and the transfer of liability in new sections 69(3) and (4) to apply to certain acts or omissions of current and former members of the Adult Parole Board that occurred before clause 6 of the Bill commences. This deeming provision applies to functions of current or former members of the Adult Parole Board under legislation other than the Corrections Act 1986. Such functions are currently conferred on the Adult Parole Board under-- · the Children and Young Persons Act 1989, · the Sentencing Act 1991; and · the Serious Sex Offenders Monitoring Act 2005. Functions were previously conferred on the Adult Parole Board under the Community Welfare Services Act 1970 and the Community Services Act 1970, which have since been repealed. This deeming provision is intended to address the uncertainty about whether the existing immunity in section 69(3) of the Corrections Act 1986 applies to these functions. 5

 


 

Clause 7 makes some minor amendments to the powers of the Adult Parole Board relating to the cancellation of parole. Clause 7(1) amends the Adult Parole Board's power in section 77(5) of the Corrections Act 1986 to cancel a prisoner's parole where the prisoner is sentenced to more than 3 months imprisonment in respect of an offence committed on parole. The amendment enables this power to be exercised where the prisoner is sentenced to more than 3 months imprisonment in respect of one or more offences on parole. This overcomes an existing limitation under which the power in section 77(5) is not available where a prisoner receives an aggregate sentence in the Magistrates' Court of more than 3 months imprisonment for offences committed during parole. Clauses 7(2) and (3) amend the Adult Parole Board's power to credit time served on a cancelled parole order towards the prisoner's sentence. Existing section 77(7)(b) of the Corrections Act 1986 has the effect that time served on a cancelled parole order is not credited towards time served in respect of the prisoner's sentence, unless the Adult Parole Board directs otherwise. Section 77(7)(b) makes no provision for the Adult Parole Board to credit part of the time served on a cancelled parole order towards the prisoner's original prison sentence. Clause 7(3) inserts new section 77(7A) to overcome this limitation. New section 77(7A) gives the Adult Parole Board a discretion to direct that some or all of the time served on a cancelled parole order is to be regarded as time served in respect of the prisoner's prison sentence. This will afford more flexibility to the Adult Parole Board in crediting time served on a cancelled parole order towards a prisoner's sentence. New section 77(7)(b), which is inserted by clause 7(2), makes it clear that in the absence of a direction under new section 77(7A) any period during which a cancelled parole order was in force is not credited as time served in respect of the prisoner's prison sentence. Clause 8 clarifies the power of a Regional Manager under section 90(7) of the Corrections Act 1986 to use force to compel an offender to obey a direction. Section 90(9) of the Corrections Act 1986 requires a Regional Manager to report to the Secretary on his or her use of force to compel an offender to comply with a direction. However, section 90(7) of that Act does not expressly authorise the use of force by a Regional Manager. Clause 8 amends section 90(7) to clarify that a Regional Manager can use reasonable force in the circumstances referred to in that section. 6

 


 

Clause 9 inserts a new Part 9B into the Corrections Act 1986 to provide for additional powers and obligations in relation to people on extended supervision orders under the Serious Sex Offenders Monitoring Act 2005 who are directed to attend community corrections centres or receive visits from officers. These powers and obligations are similar to existing powers and obligations that apply under Part 9 of the Corrections Act 1986 in relation to offenders. The powers and obligations in new Part 9B will supplement the existing powers and obligations in the Serious Sex Offenders Monitoring Act 2005 in relation to people on extended supervision orders. Division 1 of new Part 9B provides for preliminary matters. New section 104E provides for definitions of relevant terms used in new Part 9B. A "monitored person" is defined as a person who is subject to an extended supervision order under the Serious Sex Offenders Monitoring Act 2005. An "officer" has the same meaning as under section 85 of the Serious Sex Offenders Monitoring Act 2005. An "officer" under that section includes a Regional Manager, a community corrections officer, a volunteer working at a location, and certain teaching, medical and related staff working at a location. Division 2 of new Part 9B makes provision for monitored persons who are instructed or directed to attend a community corrections centre for the purposes of the Serious Sex Offenders Monitoring Act 2005. New section 104F sets out the circumstances in which Division 2 of Part 9B applies. That Division applies if the Secretary instructs or directs a monitored person to attend a community corrections centre for the purposes of the Serious Sex Offenders Monitoring Act 2005, in the exercise of his or her power under section 16(1) of that Act. Section 16(1) of the Serious Sex Offenders Monitoring Act 2005 empowers the Secretary to give a monitored person any instruction or direction that the Secretary considers necessary for the effective and efficient implementation and administration of the conditions of the extended supervision order. New section 104G imposes an obligation on an officer in charge of a community corrections centre to take all reasonable steps for the security, management, safety and welfare of the monitored person at the centre. 7

 


 

New section 104H requires a monitored person at a community corrections centre to comply with a direction from an officer that is necessary for the management, good order and security of the centre. The penalty for non-compliance is 5 penalty units. New section 104I(1) empowers a Regional Manager or a community corrections officer to use reasonable force to compel a monitored person at a community corrections centre to obey a direction in certain circumstances. New sections 104I(2) and (3) provide for reporting obligations in relation to the use of force to compel a monitored person to obey a direction. New section 104J(1) imposes an obligation on an officer to provide reports to a court and the Adult Parole Board concerning a monitored person when required to do so by the Secretary. New section 104J(2) restricts this reporting obligation in relation to officers within the meaning of paragraph (e) of the definition of "officer" in section 85 of the Corrections Act 1986, which covers certain prescribed medical and related staff working at a location. These officers are only obliged to provide reports concerning a monitored person that relate to the security of the centre. The reporting obligations for these medical and related officers is limited to circumstances involving security of a community corrections centre, given the confidential nature of the information that may be dealt with by these officers. New section 104K(1) empowers an officer to take photographs of a monitored person at a community corrections centre for identification and record-keeping purposes. Under new section 104K(2), an officer can give the monitored person all necessary directions to ensure that accurate photographs can be taken. New section 104K(3) deems such a direction to be a lawful direction of the Secretary under section 16(1) of the Serious Sex Offenders Monitoring Act 2005. A monitored person is required to obey such directions as one of the conditions of an extended supervision order under section 15(3) of the Serious Sex Offenders Monitoring Act 2005. This means that non- compliance with a direction under new section 104K(2) will constitute non-compliance with the conditions of a monitored person's extended supervision order. Division 3 of new Part 9B makes provision for monitored persons who are instructed or directed to receive visits from an officer for purposes of the Serious Sex Offenders Monitoring Act 2005. 8

 


 

New section 104L sets out the circumstances in which Division 3 of Part 9B applies. That Division applies if the Secretary instructs or directs a monitored person to attend a community corrections centre for the purposes of the Serious Sex Offenders Monitoring Act 2005, in the exercise of his her power under section 16(1) of that Act. Section 16(1) of the Serious Sex Offenders Monitoring Act 2005 empowers the Secretary to give a monitored person any instruction or direction that the Secretary considers necessary for the effective and efficient implementation and administration of the conditions of the extended supervision order. New section 104M(1) imposes an obligation on an officer to provide reports to a court and the Adult Parole Board concerning a monitored person when required to do so by the Secretary. New section 104M(2) specifies that this obligation does not apply to officers within the meaning of paragraph (e) of the definition of "officer" in section 85 of the Corrections Act 1986, which covers certain prescribed medical and related staff working at a location. The general reporting obligation in new section 104M(1) does not apply to these medical and related officers given the confidential nature of the information that may be dealt with by these officers. These officers cannot be required under new section 104M(1) to provide reports, which may disclose confidential medical matters, on monitored persons. Division 4 of new Part 9B imposes obligations on Regional Managers in relation to monitored persons to ensure that officers have access to information and comply with their statutory obligations in relation to monitored persons. New section 104N(1) requires a Regional Manager to ensure that officers working in the region have access to information about their statutory powers and duties in relation to monitored persons. New section 104N(2) requires a Regional Manager to give necessary directions to ensure that officers working in the region comply with their statutory obligations in relation to monitored persons to whom new Part 9B applies. New section 104N(3) specifies that a "region" under new section 104N means an area or areas designated as a region under Part 9 of the Corrections Act 1986. Section 87 in Part 9 of the Corrections Act 1986 provides for areas in Victoria to be designated as regions by the Secretary. 9

 


 

 


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