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Serious Sex Offenders (Detention and Supervision) Amendment (Governance) Bill 2017

 Serious Sex Offenders (Detention and
Supervision) Amendment (Governance)
               Bill 2017

                        Introduction Print


              EXPLANATORY MEMORANDUM


                              Clause Notes

                         Part 1--Preliminary
Clause 1   sets out the purpose of the Bill, which is to amend the Serious
           Sex Offenders (Detention and Supervision) Act 2009 and the
           Corrections Act 1986 to--
             •       establish the Post Sentence Authority and provide for
                    its functions and powers;
             •       abolish the Detention and Supervision Order Division
                    (DSO division) of the Adult Parole Board (APB);
             •       provide for the coordination of services, including by
                    panels, to--
                    •       eligible offenders who are the subject of an
                           application for a supervision order or a detention
                           order; and
                    •       offenders subject to a supervision order or an
                           interim supervision order;
             •       provide for the sharing of information between relevant
                    Departments and agencies;




581391                               1      BILL LA INTRODUCTION 22/8/2017

 


 

• provide for the transfer of summary offences related to the breach of a supervision order to the County Court or the Supreme Court; and • make consequential amendments to those Acts and to other Acts. The Serious Sex Offenders (Detention and Supervision) Act 2009 (the Principal Act) seeks to enhance the protection of the community by requiring the detention or supervision of serious sex offenders who have completed their prison sentence and who present an ongoing unacceptable risk of committing a further sexual offence. This Bill amends the Principal Act to respond to the recommendations of the Complex Adult Victim Sex Offender Management Review Panel (Harper Review). This Bill is about ensuring that the post-sentence detention and supervision system is supported by an independent, rigorous and accountable governance framework that can effectively seek to achieve and promote community protection. It is also about promoting shared responsibility and a whole of government approach to the delivery of services required to reduce the likelihood of reoffending and better protect the community. Clause 2 provides that the Bill comes into operation on a day or days to be proclaimed. If the Bill does not come into operation before 1 September 2018, it comes into operation on that day. Clause 3 provides that in the Bill the Serious Sex Offenders (Detention and Supervision) Act 2009 is called the Principal Act. Part 2--Amendment of the Serious Sex Offenders (Detention and Supervision) Act 2009--Post Sentence Authority Clause 4 amends section 1 of the Principal Act to update the purposes and outline of that Act. Subclause (1) replaces section 1(3)(g) of the Principal Act so that it states that in the outline, the Principal Act establishes the Post Sentence Authority and provides for its functions. Subclause (2) inserts new section 1(3)(i) to state that the Principal Act, in outline, provides for the coordination of services to offenders in accordance with Part 13B. These changes reflect the key reforms in this Bill. 2

 


 

Clause 5 introduces new definitions in section 3 of the Principal Act as a result of the amendments to the Principal Act included in Part 2 of the Bill. In particular, the following definitions are included-- • Authority means the Post Sentence Authority established by new section 192C (see new Part 13A inserted by clause 16); • coordinated services plan means a plan referred to in new section 192ZI (see new Part 13B inserted by clause 16); • responsible agency means the Secretary, the Secretary to the Department of Health and Human Services, the Chief Commissioner of Police, a prescribed person or body, if any (see new Part 13B inserted by clause 16). In addition, this clause repeals the definition of DSO division in section 3 of the Principal Act which is no longer required as a result of the amendments included in Part 2 of this Bill. Clause 6 repeals section 6 of the Principal Act. That section states that the functions and powers of the APB under the Principal Act are to be carried out or exercised by the DSO division. Clause 16 of this Bill inserts new Part 13A in the Principal Act that establishes the Post Sentence Authority and gives it the existing functions and powers of the APB and its DSO division. The Post Sentence Authority will replace the DSO division and section 6 of the Principal Act is no longer required. Clause 7 substitutes section 14 of the Principal Act. Section 14 currently requires the Secretary to the Department of Justice and Regulation to provide a copy of a supervision order to the APB as soon as practicable after it is made. New section 14 will require the Secretary to provide a copy of a supervision order to the Post Sentence Authority as soon as practicable after the order is made. This reflects the broader amendments in the Bill (see clause 16) to establish the Authority and give it the functions and powers of the APB and its DSO division, under the Principal Act. In addition, new section 14 will require the Secretary to provide a copy to the APB if at the time the order is made, the offender is serving a custodial sentence or the offender commences serving a custodial sentence before the expiry or revocation of the order. This will mean that 3

 


 

the APB continues to receive copies of supervision orders that are relevant to its parole decisions. Similar amendments are made in relation to sections 32, 43, 49 and 60 of the Principal Act set out in clauses 8, 9, 10 and 11 of the Bill. Clause 8 substitutes section 32 of the Principal Act. Section 32 currently requires the Secretary to the Department of Justice and Regulation to provide a copy of a renewing supervision order to the APB as soon as practicable after it is made. New section 32 will require the Secretary to provide a copy of an order renewing a supervision order to the Post Sentence Authority as soon as practicable after the order is made. In addition, new section 32 will require the Secretary to provide a copy to the APB if at the time the renewing order is made, the offender is serving a custodial sentence or the offender commences serving a custodial sentence before the expiry or revocation of the order. Clause 9 substitutes section 43 of the Principal Act. Section 43 currently requires the Director of Public Prosecutions to provide a copy of a detention order to the Secretary to the Department of Justice and Regulation and the APB, as soon as practicable. New section 43 will require the Director of Public Prosecutions to provide a copy of a detention order to the Secretary to the Department of Justice and Regulation and the Post Sentence Authority as soon as practicable after the order is made. In addition, new section 43 will require the Director to provide a copy to the APB if at the time the order is made, the offender is serving a custodial sentence or the offender commences serving a custodial sentence before the expiry or revocation of the order. Clause 10 substitutes section 49 of the Principal Act. Section 49 currently requires the Director of Public Prosecutions to provide a copy of a renewing detention order to the Secretary to the Department of Justice and Regulation and the APB, as soon as practicable. New section 49 will require the Director to provide a copy of an order renewing a detention order to the Secretary and the Post Sentence Authority as soon as practicable after the order is made. In addition, new section 49 will require the Director to provide a copy to the APB if at the time the renewing order is made, the offender is serving a custodial sentence or the offender 4

 


 

commences serving a custodial sentence before the expiry or revocation of the order. Clause 11 substitutes section 60 of the Principal Act. Section 60(1) currently requires the Secretary to the Department of Justice and Regulation to provide a copy of an interim supervision order to the APB as soon as practicable. Section 60(2) requires the Director of Public Prosecutions to provide a copy of an interim detention order to the Secretary to the Department of Justice and Regulation and the APB as soon as practicable. New section 60(1) will require the Secretary to provide a copy of an interim supervision order to the Post Sentence Authority as soon as practicable after the order is made. In addition, section 60(1) will require the Secretary to also provide a copy to the APB if at the time the order is made, the offender is serving a custodial sentence or the offender commences serving a custodial sentence before the expiry or revocation of the order. Similarly, new section 60(2) will require the Director to provide a copy of an interim detention order to the Secretary and the Post Sentence Authority as soon as practicable after the order is made. In addition, it will require the Director to also provide a copy to the APB if at the time the order is made, the offender is serving a custodial sentence or the offender commences serving a custodial sentence before the expiry or revocation of the order. Clause 12 inserts new subsection 188(2)(a)(iia) in the Principal Act. This will enable the Secretary to the Department of Justice and Regulation to request information kept in relation to an offender from specific persons (set out in section 188(1)) for the purpose of making the information available for use in preparing a coordinated services plan in relation to the offender. This supports the exercise of functions under new Part 13B of the Principal Act (see clause 16 of this Bill). Clause 13 makes a number of amendments to section 189 of the Principal Act. Subclause (1) amends section 189(1)(a) of the Principal Act which provides that a relevant person may use or disclose to another relevant person any information obtained by the person in carrying out a function under the Principal Act or any other Act in certain circumstances. 5

 


 

Subclause (1)(a) amends section 189(1)(a) so that it provides that a relevant person may use or disclose information to another relevant person if the relevant person believes on reasonable grounds it is necessary to use and disclose the information to carry out a function under the Act or any other Act as set out in that subsection. This amendment is makes the wording of section 189(1)(a) consistent with that used in section 189(1)(d) of the Principal Act. Subclauses (1)(b) and (c) insert new paragraphs 189(1)(a)(iv) and (v) in the Principal Act to specify that the functions in relation to which information can be used or disclosed by one relevant person to another under section 189(1)(a) include the functions of preparing and reviewing coordinated services plans and delivering services or providing for the delivery of services in accordance with coordinated services plans. This amendment complements the new functions given to responsible agencies under new Part 13B of the Principal Act (inserted by clause 16 of this Bill). Subclause (2) inserts a new subsection (1AA) in section 189 of the Principal Act. New subsection 189(1AA) will provide that a relevant person may use or disclose information given to the Post Sentence Authority that is not disclosed in a decision of the Authority or in any reasons given by the Authority if the relevant person believes on reasonable grounds it is necessary to use or disclosure the information-- • for the administration of the Act; or • for the preparation for, conduct or participation in a proceeding in any court, before a tribunal or an inquest or investigation held by a coroner; or • to reduce the risk of a person committing a relevant offence or violent offence; or • to lessen or prevent a threat to the life, health, safety or welfare of any person. New section 189(1AA) is based on the corresponding provision that applies to the APB in section 104ZZ(1) of the Corrections Act 1986. 6

 


 

Subclause (3) amends section 189(1A) of the Principal Act so that the offence that prohibits the unauthorised use or disclosure of information does not operate to prevent the use or disclosure of information in accordance with new section 189(1AA). Subclause (4) inserts a reference to the Post Sentence Authority into section 189(3) of the Principal Act to clarify that nothing in section 189 limits or affects any requirement imposed by any other provision of the Act for the Secretary to the Department of Justice and Regulation to notify the Post Sentence Authority or the APB of any matter. Subclause (5) amends section 189(4) of the Principal Act which sets out the definition of relevant person for the purposes of section 189. Subclause (5) inserts new paragraphs (h), (i), (j) and (ja) in section 189(4) so that relevant person is defined to include-- • any member of the Post Sentence Authority or any employee assisting the Authority to perform its functions; or • any person who delivers services or advice to or on behalf of the Authority whether paid or unpaid; or • a person or body from whom a responsible agency seeks or obtains advice; or • a person or body prescribed as a responsible agency. Clause 14 inserts new section 190(2)(ab) in the Principal Act. New section 190(2)(ab) provides that the definition of relevant person in that section includes the chairperson of the Post Sentence Authority. This amendment will mean that the chairperson of the Post Sentence Authority must develop guidelines in relation to accessing information under section 189 in accordance with section 190(1) of the Principal Act. Clause 15 inserts a new section 192B into the Principal Act that sets out an exemption from the Freedom of Information Act 1982. To promote transparency and accountability, the Freedom of Information Act 1982 will apply to the Post Sentence Authority, subject to the exemption set out in new section 192B. Section 192B recognises that certain types of information or documents held by the Authority, in particular, information 7

 


 

or documents that relate to decisions made in relation to an individual or a particular case, regarding the monitoring and administration of a court order, or that relate to information that is prohibited from publication or disclosure under Part 13 of the Principal Act, should be treated confidentially. It is important that the integrity of this confidential and sensitive information is upheld to support the effective assessment, treatment and management of complex offenders. Specifically, section 192B(1) provides that the Freedom of Information Act 1982 does not apply to a document of the Post Sentence Authority to the extent to which it discloses information that relates to-- • a victim or victims of an offender, including any victim submission made under the Principal Act; • an eligible offender, or an offender who is or has been subject to, an order under the Act; • a proceeding under the Act that is or was before a court; • a decision of the Authority; • decision-making processes of the Authority; • any order imposed under the Act including any conditions attached to an order; • any directions or instructions given under the Act to an offender; • the location, operation or administration of a residential facility or the management of the offender at a residential facility; • the management of an offender subject to a detention order or interim detention order under the Corrections Act 1986; • the management of an offender subject to a supervision order or an interim supervision order; or • any other information prohibited from disclosure under Part 13, unless that information is permitted to be disclosed by a publication order made by a court under section 183. 8

 


 

Section 192B(2) clarifies the interaction between section 192B and Part IV of the Freedom of Information Act 1982. Subsection (2) states that nothing in section 192B limits or affects the operation of Part IV of the Freedom of Information Act 1982 in relation to documents of the Authority to which that Act applies. Subsection (3) inserts new definitions of document and document of the Authority to provide that they have the same meanings as they have in the Freedom of Information Act 1982. Clause 16 inserts new Parts 13A and 13B into the Principal Act. New Part 13A contains 3 Divisions that establish the Post Sentence Authority, give it the existing functions and powers of the APB and its DSO division under the Principal Act and set out detailed annual reporting requirements. New Part 13B introduces new powers and functions for responsible agencies to develop and agree on coordinated services plans for offenders and enables the new Authority to review and monitor the coordination of services to offenders. Division 1 of new Part 13A contains new sections 192C to 192O, which establish the Post Sentence Authority, provide for its functions and powers and set out its membership requirements. New section 192C establishes the Post Sentence Authority. The Post Sentence Authority will be an independent statutory body corporate and public entity. The Post Sentence Authority will replace the APB and its DSO division under the Principal Act. This will mean that there is a dedicated independent statutory body responsible for monitoring and reviewing the progress of offenders who are subject to detention and supervision orders under the Principal Act. New section 192D(1) sets out the functions of the Authority. Consistent with the existing functions of the APB and its DSO division under or in relation to the Principal Act, new section 192D(1) provides that the Authority has the following functions-- • to monitor compliance with and administer the conditions of a supervision order or an interim supervision order; 9

 


 

• to give directions and instructions to an offender in accordance with any authorisation given to the Authority under a supervision order or an interim supervision order; • to make decisions to ensure the carrying into effect of the conditions of supervision orders and interim supervision orders; • to make recommendations to the Secretary in relation to applying to a court to review the conditions of supervision orders and interim supervision orders; • to review and monitor the progress of offenders on supervision orders and interim supervision orders; • to review and monitor the progress of offenders on detention orders and interim detention orders; • to approve or disapprove change of name applications under section 176; • to report on the performance of functions and powers under the Principal Act in its annual report under section 192ZC; • any other function conferred on the Authority by or under the Principal Act or any other Act. This new section 192D(1) provides that the Authority has the existing functions of the APB and its DSO division set out in section 118 of the Principal Act which is repealed by clause 26 of this Bill. In addition, consistent with the additional functions and powers given to the Post Sentence Authority in new Part 13B, inserted in the Principal Act by clause 16 of this Bill, new sections 192D(1)(f) and (g) provide that the Authority has the following new functions-- • to review coordinated services plans (CSPs) for eligible offenders who are subject to an application for a supervision order or a detention order; • to review CSPs for offenders who are subject to a supervision order or an interim supervision order. 10

 


 

New section 192D(2) states that the Post Sentence Authority may inform itself in any manner it thinks fit and is not bound by the rules of evidence. This assists the Authority to respond quickly and effectively when performing its functions, including managing offenders subject to a supervision order, under the Principal Act. This provision is consistent with the existing arrangements for the APB and its DSO division set out in section 71 of the Corrections Act 1986. New subsection 192D(3) states that the Post Sentence Authority is not bound by the rules of natural justice. This assists the Authority to respond quickly and effectively when performing its functions, including managing offenders subject to a supervision order, under the Principal Act. This provision is consistent with the existing arrangements for the APB and its DSO division set out in section 69(2) of the Corrections Act 1986. While the Authority is not bound by the rules of natural justice, the Principal Act includes provisions that confer a range procedural rights on offenders and other persons in specific contexts. The Authority must comply with these statutory provisions when performing the relevant functions or exercising the relevant powers. In addition, there are procedures for seeking a court review of a detention order or supervision order or the conditions of a supervision order. In terms of statutory procedural rights, by way of example, Division 2 of Part 10 of the Principal Act includes provisions containing a range of procedural rights that apply when the Authority is giving directions to an offender. In summary, those provisions state that the Authority must notify an offender of any directions or instructions that it gives in relation to the offender (section 122), the offender may make submissions within 21 days of receiving notice (section 123) and is entitled to be heard at the Authority meeting (section 124), the offender may inspect documents relied on by the Authority (section 127), the Authority must take into account the offender's submissions (section 125) and the Authority must give reasons for the decision it made after hearing from the offender or reasons for any other decision at the offender's request (section 126). 11

 


 

It is also relevant to note that the Authority is a public authority under the Charter of Human Rights and Responsibilities Act 2006. Section 38(1) of the Charter of Human Rights and Responsibilities Act 2006 states that it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. The Authority will comply with its obligations under section 38(1) when exercising or not exercising, or deciding to exercise or not exercise, any power under the Act (or any other Act). As such, sections 122 to 127 of the Principal Act set out the minimum procedural requirements with which the Authority must comply. These minimum requirements do not prevent the Authority from taking additional procedural steps in the exercise of its statutory powers, as appropriate to the particular circumstances of an individual offender. In some instances the application of the Charter of Human Rights and Responsibilities Act 2006 may make it appropriate to observe additional procedural safeguards. New section 192E provides that the Authority has all the powers necessary to perform its functions, including any power conferred on it by the Principal Act or any other Act. New section 192F provides for the membership of the Authority. Subsection (1) provides that the Authority consists of no more than 10 people appointed by the Governor in Council, on the recommendation of the Minister, being a chairperson, a deputy chairperson, up to 3 full-time members and up to 5 sessional members. Subsection (2) sets out qualification requirements for members. A member must be a person who-- • has been a judge of the High Court, Supreme Court (or an equivalent court of another State or a Territory), the Federal Court, the Family Court or the County Court (or an equivalent court of another State or a Territory); • has been a magistrate of the Magistrates' Court (or the equivalent court of another State or a Territory); • is an Australian lawyer of at least 5 years' experience; • is a community representative who has expertise and experience relevant to the functions of the Authority. 12

 


 

New section 192G provides for the appointment of the chairperson and deputy chairperson of the Authority and the qualification requirements for these roles. Subsection (1) provides that on the recommendation of the Minister, the Governor in Council must appoint one of the members referred to in section 192F(2)(a), (b) or (c) to be chairperson of the Authority. That is, a member who-- • has been a judge of the High Court, Supreme Court (or an equivalent court of another State or a Territory), the Federal Court, the Family Court or the County Court (or an equivalent court of another State or a Territory); • is a retired magistrate of the Magistrates' Court (or the equivalent court of another State or a Territory); • is an Australian lawyer of at least 5 years' experience. Similarly, subsection (2) provides that, on the recommendation of the Minister, the Governor in Council must appoint one of the members referred to in section 192F(2)(a), (b) or (c) to be deputy chairperson of the Authority. Subsection (3) provides that if the chairperson is unable to perform the duties of office of the chairperson, is absent, or if the office of the chairperson is vacant, the deputy chairperson must act as the chairperson. While acting as the chairperson, the deputy chairperson has all the functions, powers and duties of the chairperson. New section 192H provides for the acting arrangements for the chairperson, deputy chairperson and members of the Authority. Subsection (1) provides that the Governor in Council, on the recommendation of the Minister, may appoint an acting chairperson of the Authority if the chairperson and deputy chairperson are unable to perform the duties of chairperson, are absent or the office of chairperson or deputy chairperson is vacant. The acting chairperson must be a member of the Authority referred to in section 192F(2)(a), (b) or (c) or a person who is qualified to be a member under those provisions. Subsections (2) and (3) provide that the Governor in Council, on the recommendation of the Minister, may appoint an acting deputy chairperson of the Authority or an acting member of the Authority, if the deputy chairperson or member respectively, is unable to perform the duties of office, is absent or if the office of deputy chairperson or member respectively is vacant. It is intended that a sessional member could be appointed as a 13

 


 

full-time member of the Authority. These sections provide that the qualifications required for a person appointed as acting deputy chairperson or acting member are the same as required for appointment to those roles. Subsection (4) provides that a person appointed to act has the functions, powers and duties of the relevant position, while acting. New section 192I provides for the terms and conditions of office. Subsection (1) provides that a member holds office on the terms and conditions specified in the member's instrument of appointment and may hold office for a term not exceeding 5 years (subject to reappointment arrangements and maximum term of appointment). Subsection (2) provides that the member is entitled to be paid remuneration, allowances and expenses determined by the Governor in Council and set out in the instrument of appointment. Subsection (3) provides that a member is eligible for reappointment. Subsection (4) provides that a member may hold office for a maximum of 9 years, whether appointed for one or more terms and whether those terms are consecutive. Subsection (5) provides the Public Administration Act 2004 (other than Part 3), applies to a member of the Authority in respect of the office of member. Subsection (6) provides that an officer within the meaning of the State Superannuation Act 1988 who is appointed to the Authority continues to be an officer for the purpose of that Act. New section 192J sets out the arrangements for the chairing of meetings of the Authority. Subsection (1) requires the chairperson to preside at meetings of the Authority if the chairperson is present. Subsection (2) provides that in the absence of the chairperson, the deputy chairperson is to preside at meetings of the Authority if the deputy chairperson is present. Subsection (3) provides that in the absence of the chairperson and deputy chairperson, the acting chairperson or acting deputy chairperson is to preside at meetings of the Authority. New section 192K provides for the meetings of the Authority. Subsection (1) provides that the Authority is to meet at the times and places fixed by the chairperson. Subsection (2) provides that questions of law and fact that arise before the Authority are to be decided by the person presiding at the meeting of the Authority. Subsection (3) provides that the quorum for a meeting of the Authority is 3 members, including the presiding member. Subsection (4) provides that the decision of a majority of 14

 


 

members at a meeting is the decision of the Authority, subject to new section 192K(2). Subsection (5) provides that the presiding member has a second or casting vote if there is an equality of votes. New section 192L provides that an act or a decision of the Authority is not invalid merely because of a vacancy in the office of a member, or a defect or irregularity in the appointment of a member. New section 192M sets out when the office of member is vacant, provides for the resignation of members and for the removal of members from office in certain circumstances. New section 192N sets out the staffing and contracting powers of the Authority. Subsection (1) enables the Authority to enter into agreements or arrangements for the use of services of any staff of a public entity or public service body. Subsection (2) requires that the Secretary provide any employees of the Department and any other assistance to the Authority that is necessary to assist it to perform its functions. Subsection (3) provides that any employees provided to assist the Authority to perform its functions is subject to the directions of the Authority. These provisions reflect the existing arrangements that apply to the APB and its DSO division, under sections 70(2) and 73(3) of the Corrections Act 1986 which are repealed by clauses 45(8) and (10) of this Bill respectively and are consistent with the Authority's size and organisational capacity. Subsection (4) provides that the Authority may engage contractors and agents to assist the Authority to perform its functions. New section 192O provides that a member may sign and issue orders and documents on behalf of the Authority if it has heard and determined a matter. Such an order has effect as if it were signed by all members of the Authority. Division 2 of new Part 13A contains new sections 192P to 192Z, which give the Authority power to issue notices to compel the production of documents or things and the attendance of people at meetings. These powers will ensure that the Authority is able to access the information required to effectively monitor offenders on orders under the Principal Act. These powers are based on the existing powers of the APB and its DSO division set out in sections 71A to 71I of the Corrections Act 1986. 15

 


 

New section 192P will enable the Authority to issue written notices to compel the production of documents and other things or the attendance of witnesses at a meeting of the Authority. Subsection (1) enables the Authority, for the purpose of performing its functions in relation to managing offenders who are subject to a detention or supervision order (or interim order), to serve a written notice on a person requiring the person to produce specified documents or things and/or attend a meeting of the Authority. Subsection (2) provides that such a notice must be in a prescribed form and contain the information set out in subsection (2)(b) and must be served in accordance with new section 192S. These provisions mirror existing powers that apply to the APB and its DSO division in the context of the Principal Act under section 71A of the Corrections Act 1986. It is not intended that this provision will require the Supreme Court, the County Court, the Magistrates' Court or any of their officers or staff to provide information to the Authority. New section 192Q sets out when a person may dispute a notice to produce or to attend served by the Authority. Subsection (1) provides that a person may make a claim to the Authority that the person has or will have a reasonable excuse for failing to comply with the notice or that a document or other thing specified in a notice is not relevant to the subject matter of that meeting. Subsection (2) provides that without limiting what may be a reasonable excuse, it will be a reasonable excuse for a person to fail to comply with a notice by refusing to give the information to the Authority if the information-- • might tend to incriminate the person or make the person liable to a penalty; • is the subject of parliamentary privilege or legal professional privilege or client legal privilege or public interest immunity; • is prohibited from disclosure by a court order; • is prohibited from disclosure by a provision of another enactment. This provision mirrors existing requirements for disputing a notice of the APB and its DSO division under sections 71B(1) and (2) of the Corrections Act 1986. 16

 


 

New section 192R sets out that the Authority, by further notice served on a person, may revoke or vary a notice served under section 192P on its own initiative or if it is satisfied that the person's claim under section 192Q is made out. Any notice varying or revoking a notice to produce or to attend must be served in accordance with the process set out in section 192S. This section is modelled on existing powers of the APB and its DSO division under sections 71B(3) to (5) of the Corrections Act 1986. New section 192S outlines the procedure by which a notice to produce or attend (or a notice varying or revoking such a notice) must be served on a person. Subsection (1) requires all notices to be served at a reasonable time, being not less than 7 days before the date on which the person is required to comply with the notice. Subsection (2) enables the Authority to require immediate attendance of a person under certain circumstances, for example if the Authority considers on reasonable grounds that a delay is likely result in evidence being lost or destroyed, or if the person consents. Subsection (3) provides for methods of service, including electronic service. These provisions are based on existing arrangements and powers of the APB and its DSO division under section 71C of the Corrections Act 1986. New section 192T sets out powers in relation to documents and other things produced to the Authority. Subsection (1) enables the Authority, a member of the Authority or an employee assisting the Authority in the performance of its functions that is authorised by the Authority to inspect, retain (for as long as reasonably necessary for the purpose under the Principal Act) and copy a document or other thing obtained under a notice to produce. Subsection (2) requires the Authority, in specified circumstances, to return a document or thing if it ceases to be reasonably necessary for the purpose of the Principal Act. New section 192U provides that the powers to compel attendance or production (under new section 192P) do not limit or affect the powers of the Authority to-- • give an offender a direction or instruction; • require an offender to attend a meeting under sections 124 or 161; • require information for the purpose of annual reporting under section 192ZE; 17

 


 

• require information from responsible agencies under section 192ZL. That is, powers conferred on the Authority under new section 192P are to operate concurrently with other powers of the Authority provided under the Principal Act. New section 192V provides for the appearance of people at a meeting of the authority by audio visual link. Subsection (1) enables the Authority to direct a person to attend a meeting of the Authority by audio visual link on its own initiative or at the request of the other person. Subsection (2) provides that appearance by way of audio visual link is only permissible if the relevant facilities are adequate for all members of the Authority and the person required to attend, to observe and hear all participants and to participate in the meeting. Subsection (3) provides that the Authority has the flexibility to revoke or vary a direction to conduct a meeting via audio visual link at its discretion or upon a request by the person required to attend the meeting. Subsection (4) provides that a person who appears before the Authority via audio visual link is taken to have attended the meeting of the Authority. These provisions are based on the existing powers and arrangements that apply to the APB and its DSO division under section 71F of the Corrections Act 1986. New section 192W sets out the process for serving a notice on a person who is serving a custodial sentence or in custody on remand. Subsection (1) provides that if a notice to attend a meeting of the Authority is served on a person in prison or in a police gaol, the Authority may give a written direction to the Governor of the prison or the officer in charge of the goal that requires the person to be bought to a place with audio visual facilities to enable them to appear before the Authority or to be brought before the Authority. Subsection (2) provides that such a direction must be in a prescribed form (if any). These provisions are based on the existing powers of the APB and its DSO division under section 71F of the Corrections Act 1986. New section 192X gives the Authority power to take evidence on oath or affirmation. Subsection (1) empowers the Authority to require a person attending a meeting of the Authority to give evidence or answer questions on oath or affirmation. Subsection (2) enables a member of the Authority, or an 18

 


 

authorised employee assisting the Authority, to administer the oath or affirmation to a person. Subsection (3) sets out the process for administering an oath or affirmation via audio visual link. These provisions are based on the existing powers and arrangements that apply to the APB and its DSO division under section 71G of the Corrections Act 1986. New section 192Y creates an offence for a person who fails to comply with a notice to produce or attend a meeting of the Authority without reasonable excuse. The penalty for the offence is 30 penalty units or imprisonment for 3 months. Section 72 of the Criminal Procedure Act 2009 deals with the evidential burden of proof in relation to this offence. This offence is based on an existing offence in section 71H of the Corrections Act 1986 that applies in relation to a failure to comply with a notice of the APB (and its DSO division). New section 192Z(1) creates an offence for a person who is duly served with a notice to attend a meeting of the Authority to refuse, without reasonable excuse, to take an oath or affirmation or refuse to answer a question, when required. The penalty for the offence is 30 penalty units or imprisonment for 3 months. Subsection (2) provides that a person does not commit this offence unless, before the person is required to take the oath or make the affirmation or answer the question, the Authority informs the person that refusal or failure to do so without reasonable excuse is an offence. Section 72 of the Criminal Procedure Act 2009 deals with the evidential burden of proof in relation to this offence. This offence is based on an existing offence in section 71I of the Corrections Act 1986 of failing to take oath or make an affirmation or answer a question at a meeting of the APB (including the DSO division) without reasonable excuse. Division 3 of new Part 13A contains new sections 192ZA to 192ZE--miscellaneous matters in relation to the Authority, including reporting requirements. New section 192ZA provides for the protection of participants at meetings of the Authority. Subsection (1) states that a member of Authority has, in the performance of their functions at a meeting of the Authority, the same protection and immunity as a judge of the Supreme Court has in the performance of the judge's duties as judge. Subsection (2) states that an employee assisting the Authority under section 192N to perform its functions or a 19

 


 

contractor or an agent engaged by the Authority under that section has, in the performance of the person's functions at a meeting of the Authority, the same protection and immunity as a judge of the Supreme Court has in the performance of the judge's duties as judge. Subsection (3) states that a person legally representing another person at a meeting of the Authority has the same protection and immunity as an Australian legal practitioner has in representing a party in a proceeding in the Supreme Court. Subsection (4) states that a person who gives information or evidence, or produces a document or other thing, at a meeting of the Authority has the same protection and immunity as a witness has in a proceeding in the Supreme Court. This provision is based on section 61K of the Corrections Act 1986 that provides for the protection of participants at meetings of the APB (and its DSO division). New section 192ZB provides that a member of the Authority is not personally liable for anything done or omitted to be done in good faith in the exercise of a power or the performance of a function under the Principal Act or regulations or in the reasonable belief that the act or omission was in the exercise of a power or the performance of a function under the Principal Act or regulations. It provides that any liability resulting from an act or omission that would otherwise attach to a member of the Authority, attaches instead to the Authority. This provision is based on section 69(3) of the Corrections Act 1986. Sections 192ZA and 192ZB are complementary provisions. They differ both in terms of the scope of the immunity and the persons to whom the immunity applies. Section 192ZA applies to participants at a meeting of the Authority--it is not limited to members of the Authority. The scope of the immunity is the same as that provided to the specified person in a Supreme Court proceeding. Section 192ZB applies to good faith acts or omissions of members of the Authority in the exercise of a power or the performance of a function under this Act or the regulations. It is not limited to actions or omissions at meetings. If the acts or omissions are in good faith, section 192ZB operates to transfer liability to the Authority. If the acts or omissions are not in good faith, section 192ZB does not apply. 20

 


 

New section 192ZC provides for the preparation of an annual report by the Authority for tabling in Parliament. By virtue of this provision, the Authority will be required to prepare a detailed annual report on the operation of the Principal Act and the performance of functions and powers by the Authority and relevant Departments and agencies under the Principal Act. These expanded reporting requirements will act as a mechanism to increase transparency and accountability for actions and the operation of the legislative framework under the Principal Act. New section 192ZC(1) requires the Authority to give to the Minister an annual report concerning the operation of the Principal Act that includes the information or matters listed in paragraphs (a) to (r) of that section. The information or matters to be included in the annual report includes the matters that are required to be included in the APB's annual report under section 72(1)(bf) of the Corrections Act 1986 which is repealed by clause 45(9) of this Bill. In addition to these matters, new section 192ZC(1) requires the annual report to include information about a number of additional matters. This includes for example, details of the activities of responsible agencies in relation to new Part 13B of the Principal Act (to be inserted by clause 16). Further, new section 192ZC(1)(r) enables regulations to be made that prescribe additional matters for reporting in the annual report. Subsection (2) requires the Minister to table the annual report in both Houses of Parliament. New section 192ZD outlines other types of reports which are required to be completed by the Authority. Subsection (1) requires the Authority to give to the Minister, when required, a report and recommendations concerning a person who, at the time of the report, is the subject of an order under the Principal Act. This is a current requirement for the APB under section 72(4A)(b) of the Corrections Act 1986, which is repealed by clause 45(9) of this Bill. Subsection (2) provides that the Authority must give the Minister a report on a matter stated in the requirement and relating to the activities of the Authority or the operation of the Principal Act when required by the Minister. Subsection (2) is based on section 72(5) of the Corrections Act 1986 that applies to the APB and its DSO division in relation to the operation of the Principal Act. Consequential amendments to the Corrections Act 1986 are included in clause 49(5) of the Bill. 21

 


 

To support the preparation of an annual report under new section 192ZC, new section 192ZE provides that the Authority may require information to be provided to it by a responsible agency, the Director of Public Prosecutions and other relevant Departments and that these entities must provide the specified information. It is not intended that this provision will require the Supreme Court, the County Court, the Magistrates' Court or any of their officers or staff to provide information to the Authority. New Part 13B of the Principal Act provides for cooperation and coordination between the responsible agencies. The Harper Review found that effective assessment, treatment and supervision of complex offenders require effective coordination between the agencies involved in their management. Importantly, the Review noted that responsibility for providing the services that will reduce reoffending and protect the community lies as much with the mental health, disability and social services systems as it does with any part of the justice system. More active involvement by all responsible areas of government in the management of offenders on post-sentence orders is required to effectively protect the community. To improve the coordination and delivery of services to offenders who are subject to orders under the Principal Act to reduce their risk of reoffending, new Part 13B provides for the cooperation and coordination between the agencies responsible for providing these services including the Department of Justice and Regulation, the Department of Health and Human Services and Victoria Police. A new definition of responsible agency will be inserted into the Principal Act by clause 5 of this Bill. The definition states that responsible agency means-- • the Secretary, Department of Justice and Regulation; • the Secretary, Department of Health and Human Services; • the Chief Commissioner of Police; • any other prescribed person or body. New Part 13B contains new sections 192ZF to 192ZQ. New section 192ZF states that new Part 13B applies in addition to any other function or power of a responsible agency under the Principal Act. 22

 


 

New section 192ZG provides that responsible agencies must act in accordance with the principle of shared responsibility set out in that section. In particular, that in the delivery of services to an eligible offender who is the subject of an application for a supervision or detention order or to an offender who is subject to a supervision order or interim supervision order, a responsible agency must-- • provide reasonable assistance and support to another responsible agency; • share information, including for the purposes of reporting, in accordance with the Principal Act; and • identify and take steps to resolve any issues, including systemic issues, relating to the delivery of those services. New section 192ZH provides that for the purpose of performing their functions under Part 13B, responsible agencies must jointly establish one, or more than one, panel. It is intended that one or more multi-agency panels will be established under this section, supported by delegations and administrative arrangements. The purpose of the panel(s) will be to ensure that the collective functions of responsible agencies under Part 13B are supported by stable and consistent decision-making processes to improve the coordination and delivery of services. New section 192ZI requires responsible agencies to develop and agree to a coordinated services plan for each eligible offender who is the subject of an application for a supervision order or detention order; and each offender who is subject to a supervision order or an interim supervision order. Offenders subject to a supervision order or interim supervision order are supervised in the community under a number of different arrangements that depend on the particular conditions of their supervision order, including residence and treatment requirements, supported by different program and service areas within relevant departments and agencies. Consequently, it is important for responsible agencies to articulate and agree on the coordination and delivery of services for offenders who are subject to supervision orders in the community. 23

 


 

In some cases where an application is made to the Supreme Court for a detention order in relation to an eligible offender, the Court may determine to make a supervision order for that offender. To support the effective and early coordination of services to all offenders who may be subject to a supervision order, section 192ZI provides that a coordinated services plan must be prepared for eligible offenders who are the subject of an application for a supervision order or detention order. New section 192ZJ sets out the content of a coordinated services plan. Subsection (1) provides that a coordinated service plan in relation to an eligible offender who is the subject of an application for a supervision order or a detention order must set out the services that will be made available to the offender if a supervision order or interim supervision order is made. Subsection (2) provides that a coordinated services plan in relation to an offender who is subject to a supervision order or an interim supervision order must set out-- • the matters referred to in section 10(2) of the Principal Act, such as information regarding the date the order commences, the period of the order and conditions of the order; • identified risk factors relevant to the offender; • a description of the services that will be made available to the offender to address identified risk factors; • agreement by the responsible agencies to deliver, or provide for the delivery of, those services; and • any other prescribed matters. New section 192ZK requires responsible agencies to provide a copy of a coordinated services plan to the Authority as soon as practicable either after an application is made, or after an order has been made, as the case requires. New section 192ZL(1) requires the Authority to review a coordinated services plan received under section 192ZK or 192ZM. Section 192ZL(2) provides that the Authority may serve written notice on a responsible agency requiring information in relation to a coordinated services plan. Subsection (3) provides that a responsible agency must comply with such a notice. Subsection (4) provides that section 192ZL 24

 


 

does not limit the power of the Authority to serve a notice under section 192P. New section 192ZM provides for the regular review of coordinated services plans by responsible agencies. Subsection (1) requires responsible agencies to review each coordinated services plan not later than 6 months after the plan was agreed or last reviewed and confirm or revise the plan, or revoke the plan if the offender is no longer subject to a supervision order or an interim supervision order. Subsection (2) requires responsible agencies to provide copies of any confirmed or revised plan to the Authority or notify the Authority of the revocation of a plan, as soon as practicable after each review. Sections 192ZK and 192ZL will enable the Authority to oversee the delivery and coordination of services to an offender by responsible agencies, including whether or not the agreed services set out in the coordinated services plan are being provided in accordance with the plan. New section 192ZN provides that a coordinated services plan expires on the earlier of-- • in the case of an eligible offender who is the subject of an application for a supervision order or detention order, the determination of the application, meaning that a new plan will be prepared if the relevant Court makes a supervision order so that any plan reflects the final conditions of the order and assessed risks of an offender; or • on the revocation of the plan under new section 192ZM, that is if an offender is no longer subject to a supervision order or an interim supervision order. New section 192ZO provides that in performing its functions under new Part 13B, a responsible agency may seek the services or advice of any person or body. New section 192ZP enables a responsible agency to delegate a function or power under Part 13B to any employee, or class of employees in the relevant department or agency. This will enable the responsible agencies to delegate their powers to develop and agree coordinated services plans and to regularly review and update those plans, to employees or a class of employees to support the effective and efficient performance of 25

 


 

these functions and duties and to support the operation of the panel(s) established under new section 192H of the Principal Act. New section 192ZP will also enable any prescribed responsible agency to delegate a function or power to an employee or class of employees of that agency. New section 192ZQ clarifies that new Part 13B does not create any legal right or give rise to any civil cause of action, or affect the interpretation of any law in force in Victoria. Clause 17 amends section 193 of the Principal Act, which outlines service requirements for documents required or permitted to be served by or under the Act. Subclause (1) clarifies the interaction between section 192S (service of notices to produce and attend under Part 13A) and section 193 (general service provisions). Subclause (2) specifies that a document to be served on the Authority can be served by sending it to the chairperson of the Authority. Part 3--Summary offences related to offence of breaching a supervision order Clause 18 inserts new sections 172AB and 172AC into the Principal Act, which deal with the transfer of proceedings for summary offences related to the offence against section 160 of that Act of breaching the conditions of a supervision order and their determination in the relevant higher court using summary procedures. These procedures are a modified version of the procedures for the transfer of related summary offences in the Criminal Procedure Act 2009. The modifications ensure the procedures can operate consistently with the existing procedures for the prosecution of offences against section 160 of the Principal Act of breaching the conditions of a supervision order. Section 172AB sets out the procedures for the Magistrates' Court to transfer proceedings for related summary offences. Subsection (1) introduces a definition of related offences, and states that it has the same meaning as in the Criminal Procedure Act 2009. Subsection (2) states that, subject to subsection (3), if the Magistrates' Court transfers a proceeding by order under section 172A (i.e. it transfers the breach offence), it must order that all proceedings in respect of charges against the offender for summary offences that are related offences are transferred to the court that made the supervision order. Subsection (3) states 26

 


 

that the Magistrates' Court may order that a proceeding for a summary offence referred to in subsection (2) is not transferred under this section, if the offender and the prosecutor in the proceeding for the offence against section 160 agree. Subsection (4) specifies that, for the purposes of section 172AB, the Magistrates' Court may be constituted by a proper officer of the court. This provision allows a registrar of the Magistrates' Court to transfer such matters. Subsection (5) provides for a form to be prescribed. Section 172AC provides for the hearing and determination of the related summary offence by the Supreme Court or the County Court. Subsection (1) provides that if an offender is before the Supreme Court or the County Court for an offence against section 160, the court may hear and determine a charge for a summary offence transferred under section 172AB before sentencing or otherwise dealing with the offender. Subsection (2) states that if all charges for an offence against section 160 against an offender before the Supreme Court or the County Court have been discontinued, the court may hear and determine a charge for a summary offence transferred under section 172AB. Subsection (3) provides that the court must hear and determine a charge for a summary offence summarily, without a jury and in accordance with Part 3.3 of the Criminal Procedure Act 2009. Subsection (4) provides that, on the hearing of a charge for a summary offence, the court may admit evidence in relation to the charge evidence given during a trial or summary hearing of the offender in respect of the offence against section 160. Subsection (5) provides that a party may adduce further evidence only with the leave of the court. Subsection (6) provides flexibility for the Supreme Court or the County Court to transfer matters back to the Magistrates' Court if it considers appropriate. Subsection (7) empowers the court to impose any sentence in respect of a summary offence that could be imposed by the Magistrates' Court. The note below new section 172AC specifies that rights of appeal in relation to summary offences heard and determined under section 172AC are found in the Criminal Procedure Act 2009 by virtue of the definition of original jurisdiction in that Act. Clause 47 of the Bill amends the definition of original jurisdiction in the Criminal Procedure Act 2009 to include a 27

 


 

reference to a proceeding for a related offence that is a summary offence heard under section 172AC. The term original jurisdiction is relevant to the definition of originating court in section 3 of the Criminal Procedure Act 2009 and the rights of appeal in Part 6.3 of that Act. Clause 19 inserts a reference to new section 172AB into section 172B of the Principal Act. The effect of this amendment is that the court to which the related summary offence has been transferred under section 172B can issue a warrant to arrest the offender if the offender does not attend before that court in accordance with his or her undertaking of bail or in answer to a summons that has been served in respect of the related summary offence. Part 4--Transitional provisions and consequential and other amendments to the Principal Act Division 1--Consequential and other amendments Clause 20 replaces references to the APB with the Authority in Parts 2, 4 and 5 of Principal Act. As outlined, the Authority established in new Part 13A of the Principal Act (inserted by clause 16 of this Bill) will have the existing functions, powers and duties of the APB (and its DSO division) under the Principal Act. Consequently, references to the APB are replaced with the Authority in sections 16, 26, 27, 62, 68, 72 and 78 of the Principal Act. Clauses 21 to 23 amend sections 17, 19 and 20 of the Principal Act respectively. Consistent with the reforms in this Bill, these amendments replace references to the APB and the Board with the Authority in these provisions, including in the examples and notes at the foot of these sections, and the heading to section 20 of the Principal Act. Clause 24 amends section 114 of the Principal Act that sets out that the APB is responsible for reviewing and monitoring the progress of offenders on detention orders and interim detention orders. These responsibilities will be performed by the Authority under the new governance arrangements. 28

 


 

Clause 25 amends the heading of Division 2, Part 10 of the Principal Act, which is "Functions and powers of Adult Parole Board". Clause 25 amends the heading to "Authority may give directions and instructions to offender". This amendment better reflects the purpose and outline of the Division, which provides for the powers of the Authority in relation to giving an instruction or direction to an offender subject to a supervision order or interim supervision order. Clause 26 repeals section 118 of the Principal Act. As outlined above in relation to clause 16 of this Bill, new section 192D of the Principal Act will set out the functions and powers of the Authority and replace section 118 of the Principal Act. Consequently, that section is no longer required. Clause 27 replaces references to the APB with the Authority in Parts 9 and 10 of the Principal Act. Subclause (1) replaces references to the APB with the Authority in the heading of sections 119, 125, 127, 128 and 130 of the Principal Act. Subclause (2) replaces references to the APB with the Authority in the provisions within Parts 9 and 10, wherever occurring. Clause 28 amends section 124 of the Principal Act which provides that the APB can require an offender to attend a meeting of the APB either in person or by audio visual or audio link. Subclauses (1) to (3) replace references to the APB and the Board with the Authority in the heading of section 124 and within the provision, wherever occurring. Subclause (4) inserts a new subsection 124(4A) into the Principal Act which sets out requirements for attending meetings of the Authority by audio visual links and audio links. It provides that facilities must enable all attendees to see and hear each other if the meeting is held via audio visual link; and to hear each other if the meeting is conducted via audio link. This amendment provides appropriate safeguards for meetings held by audio visual link or audio link, similar to safeguards provided in new section 192V (see clause 16). Clause 29 amends section 158E of the Principal Act. Consistent with the reforms contained in this Bill, this amendment replaces references to the DSO division of the APB in section 158E with references to the Authority, including the heading. 29

 


 

Clauses 30 to 33 amend sections 161, 162, 163 and 169 of the Principal Act respectively. Consistent with the reforms contained in this Bill, these amendments replace references to the APB and the Board in these sections with references to the Authority, including in the heading of sections 161 and 163. Clause 34 amends section 171C of the Principal Act. Consistent with the reforms contained in this Bill, this amendment replaces references to the DSO division of the APB in section 171C with references to the Authority, including in the heading. Clause 35 repeals section 172(8) of the Principal Act, which defines the term the Registrar for the purposes of Regulations made under the Sex Offenders Registration Act 2004. This amendment is a consequential amendment resulting from the repeal of section 172(3) of the Principal Act in 2015 by the Serious Sex Offenders (Detention and Supervision) and Other Acts Amendment Act 2015. Clauses 36 to 38 amend sections 175, 176 and 177 of the Principal Act respectively. Consistent with the reforms contained in this Bill, these amendments replace references to the APB in those sections with references to the Authority, including in the heading of section 176. Clause 39 amends section 178 of the Principal Act which prohibits the registration of a change of name relating to an offender without approval by the APB. Subclause (1) replaces a reference to the APB with a reference to the Authority. Subclause (2) replaces reference to the secretary of the APB with a reference to the chairperson of the Authority. Clauses 40 to 41 amend sections 179 and 181 of the Principal Act respectively. These amendments replace references to the APB with references to the Authority in those sections. Clause 42 amends section 40 of the Principal Act which outlines the period of a detention order. This amendment is a statute law revision to amend the numbering within the provision, from subsection (4) (where first occurring) to subsection (3A). 30

 


 

Division 2--Transitional provisions Clause 43 inserts section 199B in the Principal Act to provide that new Schedule 4 inserted by clause 44 of the Bill, has effect. Clause 44 inserts new Schedule 4 in the Principal Act that sets out the transitional provisions for this Bill. Clause 1 sets out definitions of commencement day and DSO division that will apply to Schedule 4. Clause 2(1) provides that, unless the contrary intention appears, Schedule 4 does not affect or take away from the Interpretation of Legislation Act 1984. Item 2(2) provides that if a repealed or amended provision of this Bill continues to apply by force of Schedule 4, then the following provisions will continue to apply-- • any other repealed or amended provisions necessary to give effect to that continued provision; and • any regulations made for the purposes of that continued provision. Clause 3 provides that, on and from the commencement day, a decision made at a meeting of the DSO division before the commencement day is taken to be a decision made at a meeting of the Authority. Clause 4 provides that, on and from the commencement day, an exercise of the APB's powers and functions by the DSO division under the Principal Act or the Corrections Act 1986, or by the APB under the Principal Act, before the commencement day is taken to be an exercise of powers and functions of the Authority. Clause 5 provides that, on and from the commencement day, a direction given by the DSO division or the APB under section 119 or 120 of the Principal Act before the commencement day is taken to be a direction given by the Authority under the relevant section. Clause 6 provides that, on and from the commencement day, an instruction given by the DSO division or the APB under section 121 of the Principal Act before the commencement day is taken to be an instruction given by the Authority under that section. 31

 


 

Clause 7(1) provides that a reference in any Act (other than the Principal Act), subordinate instrument, agreement, deed or other document to the DSO division (by whatever name described), the DSO division of the APB, or the APB exercising its functions under the Principal Act, is to be construed as a reference to the Authority, so far as the reference relates to any period on or after the commencement day, and is not inconsistent with the subject matter. Clause 7(2) provides that a reference in an order made by a court under the Principal Act to the DSO division (by whatever name described) or the DSO division of the APB, or the APB exercising its functions under the Principal Act, is to be construed as a reference to the Authority, so far as the reference relates to any period on or after the commencement day, and is not inconsistent with the subject matter. Clause 8 sets out transitional provisions relating to the APB functions under the Principal Act. It provides that, on and from the commencement day-- • the APB's rights, assets, debts, liabilities and obligations in relation to the functions of the DSO division or the APB under the Principal Act, vest in the Authority; • the Authority is substituted for the APB as a party in any proceeding, contract, agreement, arrangement, lease, licence or permit in relation to the functions of the DSO division or the APB under the Principal Act; • the Authority may continue and complete matters or things commenced by, against or in relation to the APB in relation to functions of the DSO division or the APB under the Principal Act. Clause 9 provides for the transfer of all information, documents, reports and records in the possession or control of the APB in relation to the functions of the DSO division or the APB under the Principal Act, to the Authority on the commencement day. Information, documents, reports and records transferred are taken to be in the possession or control of the Authority on and from the commencement day. 32

 


 

Clause 10 enables the Authority to determine or finalise a request or action received but not determined or finalised by the APB under any provision of the Principal Act on and from the commencement date. Part 5--Consequential amendments to other Acts Clause 45 amends the Corrections Act 1986. With the establishment of the Authority in new Part 13A of the Principal Act, clause 45 makes consequential amendments to the Corrections Act 1986 to update certain references to the APB to refer instead to the Authority, to repeal the DSO division and references to it as a consequence of that repeal. Subclause (1) inserts a new definition of Post Sentence Authority in section 3 of the Corrections Act 1986. Subclause (2) amends section 30A(2AA)(ba) of the Corrections Act 1986 to replace the reference to the APB with a reference to the Authority. Subclause (4) repeals section 64A of the Corrections Act 1986 which establishes the DSO division of the APB. This amendment complements the repeal of section 6 of the Principal Act by clause 6 of this Bill. The functions, powers and responsibilities of the DSO division of the APB under the Principal Act are given to the Post Sentence Authority established by new Part 13A inserted by clause 16 of this Bill. As a consequence of this repeal, subclauses (3), (5) and (6) remove the references to section 64A in sections 64(2) and (3)(i), 66(1), and 66(5) of the Corrections Act 1986 respectively. Subclause (7) repeals section 69(1)(ac) of the Corrections Act 1986, which provides that the APB has the functions conferred on it by the Principal Act. This amendment complements the transfer of functions from the APB to the Authority under the Principal Act. This provision is replicated in new section 192D inserted by clause 16 of this Bill. Consequently, section 69(1)(ac) is no longer required. Subclause (8) repeals section 70(2) of the Corrections Act 1986. This section provides for the staff of the DSO division. As outlined above in relation to clause 16 of this Bill, new section 192N replicates this provision to support the 33

 


 

Authority. Consequently, section 70(2) of the Corrections Act 1986 is no longer required. Subclause (9) amends section 72 of the Corrections Act 1986, which provides for the annual reporting of the APB. Consistent with the reforms in this Bill, the Authority, instead of the APB, will be required to report on matters in relation to the Principal Act under new section 192ZC. Paragraph (a) repeals section 72(1)(bf) of the Corrections Act 1986. Paragraphs (b), (c) and (d) remove references to the Principal Act in section 72 which are no longer required. Subclause (10) repeals section 73(3) of the Corrections Act 1986 which provides that the employees provided under section 70(2) of that Act to assist the APB in carrying out its functions under the Principal Act are subject to the directions of the APB. This section has been replicated in new section 192N in relation to employees provided to assist the Authority in carrying out its functions under the Principal Act and is no longer required. Consistent with the amendments set out in clause 16 of this Bill, subclause (11) amends sections 104F, 104J(1)(b), 104K(3), 104L and 104M(1)(b) of the Corrections Act 1986 to replace references to the APB with references to the Authority. Subclause (12) amends section 104ZX of the Corrections Act 1986, which sets out defined terms that apply to the provisions in Part 9E of that Act, in particular section 104ZY which authorises the use and disclosure of personal or confidential information in certain circumstances. Subclause (12)(a) amends the definition of relevant persons to include: a member of the Authority or an employee assisting the Authority, any person who delivers services or advice to or on behalf of the Authority, and a person or body who is prescribed as a responsible agency under section 3 of the Principal Act. Subclause (12)(b) amends the definition of personal or confidential information to include information given to the Authority that is not disclosed in a decision of the Authority or in any reason given by the Authority for a decision of the Authority. These amendments complement the amendments to section 189 of the Principal Act by clause 13 of this Bill and aligns the provisions that provide for the use or disclosure of personal and confidential information by the 34

 


 

Authority with those that apply to the APB in the Corrections Act. Clause 46 amends the Criminal Organisations and Control Act 2012. Subclause (1) inserts a new definition of Post Sentence Authority into section 3(2) of the Act. Subclause (2) amends section 124A of the Criminal Organisation and Control Act 2012, which makes it an offence for a person who has been served an unlawful association notice to associate with an individual specified in the notice. The amendment makes it an exception to that offence if the association occurs while complying with a direction of the Authority. Clause 47 amends section 3 of the Criminal Procedure Act 2009 to include a proceeding for a related offence that is a summary offence heard under section 172AC of the Serious Sex Offenders (Detention and Supervision) Act 2009 in the definition of original jurisdiction. This is a consequential amendment to the reforms outlined in Part 3 of this Bill (see clause 18). Clause 48 amends the Disability Act 2006. Subclause (1) inserts a new definition of Post Sentence Authority into section 3 of the Act. Subclause (2) amends section 152(4) of the Disability Act 2006, which requires the Secretary to the Department of Health and Human Services to notify the APB before a person subject to a supervision order under the Serious Sex Offenders Monitoring Act 2005 can be placed in a residential facility. Consequent to the reforms in this Bill, the reference to the APB is replaced with the Authority. The Serious Sex Offenders (Detention and Supervision) Act 2009 repealed the Serious Sex Offenders Monitoring Act 2005. The Serious Sex Offenders Monitoring Act 2005 continues to apply to supervision orders extended under that Act until the order is revoked. Clause 49 amends section 3(1) of the Health Records Act 2001 to include the Post Sentence Authority in the definition of a law enforcement agency. The effect of this amendment is that the Authority will be authorised to collect health information in accordance with Health Privacy Principles. This amendment also helps to clarify when health information can be used and disclosed under specific Health Privacy Principles. 35

 


 

Clause 50 amends section 3 of the Privacy and Data Protection Act 2014 to include the Post Sentence Authority in the definition of a law enforcement agency. The effect of this amendment is that the Authority will be exempt from specific Information Privacy Principles under the Privacy and Data Protection Act 2014. Clause 51 amends section 22(1)(ab) of the Public Prosecutions Act 1994 so that the functions of the DPP are to include taking over and conducting any proceedings in respect of summary offences which have been transferred to, or is to be heard and determined by, the Supreme Court or the County Court under sections 172AB and 172AC of the of the Principal Act respectively. This is a consequential amendment to the reforms outlined in Part 3 of this Bill (see clause 18). Clause 52 amends the Sentencing Act 1991. Subclause (1) inserts a new definition of Post Sentence Authority into section 3(1) of the Sentencing Act 1991. Consistent with the reforms provided in this Bill, subclause (2) replaces references to the APB with references to the Authority in section 5 of the Sentencing Act 1991 where the reference are in the context of the Principal Act. Subsection (3) is a technical amendment to change the numbering of section 160 (secondly occurring) to 160A. Currently there are 2 provisions listed as section 160 in the Sentencing Act 1991. This amendment is a statute law revision amendment to fix the numbering. Clause 53 amends the Victims' Charter Act 2006. Subclause (1) inserts a new definition of Post Sentence Authority into section 3(1) of the Victims' Charter Act 2006. Subclause (2) amends section 17(4) of the Act to replace the reference to the APB with a reference to the Authority. This is a consequential amendment to the reforms outlined in Part 2 of this Bill (see clause 16). Part 6--Repeal of amending Act Clause 54 provides for the automatic repeal of this amending Act on 1 September 2019. The repeal of this Act does not affect in any way the continuing operation of the amendments made by this Act (see section 15(1) of the Interpretation of Legislation Act 1984). 36

 


 

 


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