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SERIOUS SEX OFFENDERS MONITORING BILL 2005

         Serious Sex Offenders Monitoring Bill

                         Introduction Print

               EXPLANATORY MEMORANDUM


                      PART 1--PRELIMINARY
Clause 1    sets out the main purpose of the Act and gives an outline of the
            Act.

Clause 2    provides for the commencement of the Act.

Clause 3    sets out the definition of a number of terms used in the Act

Clause 4    defines the offenders eligible for the making of an extended
            supervision order under Part 2 of the Act

           PART 2--EXTENDED SUPERVISION ORDERS

     Division 1--Application for Extended Supervision Order
Clause 5    Clause 5(1) empowers the Secretary to the Department of Justice
            to apply for an extended supervision order in respect of an
            eligible offender.
            Clause 5(2) specifies the court to which court an application for
            an extended supervision order may be made.
            Clause 5(3) makes it clear that an application for an extended
            supervision order can be heard and determined by a court
            notwithstanding that since the application was made the offender
            has ceased to be an eligible offender because he or she is no
            longer serving a custodial sentence.

Clause 6    requires an application to be accompanied by at least one
            assessment report.

Clause 7    sets out who is authorised to prepare an assessment report and
            provides that the assessment report may still be prepared
            notwithstanding that the offender does not cooperate during the
            examination.



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551331                                       BILL LA INTRODUCTION 21/2/2005

 


 

Clause 8 Clause 8(1) sets out a number of matters that must be addressed in an assessment report. Clause 8(2) provides that an assessment report must also state the author's assessment of the risk that the offender will commit another offence if released in the community without an extended supervision order and the reasons for that assessment. Clause 9 lists the documents that the Secretary to the Department of Justice must cause to be served on the offender as soon as practicable after making an application for an extended supervision order. Clause 10 provides for a number of procedural matters relating to the hearing of an application for an extended supervision order. Clause 10(1) specifies that an application for an extended supervision order cannot be heard until at least 25 working days have elapsed since the application was made. The court must also be satisfied that the offender has had reasonable opportunity to obtain legal representation and an independent assessment report before beginning to hear the application Clause 10(2) allows the court to adjourn proceedings to enable the offender to obtain legal representation or an independent assessment report. Clause 10(3) provides that if an offender obtains an independent assessment report the offender must cause a copy to be filed with the court and served on the Secretary to the Department of Justice as soon as practicable. Clause 10(4) provides that the offender may obtain more than one independent assessment report Clause 10(5) allows the court to resume a hearing notwithstanding that an offender has not obtained legal representation or an independent assessment report provided the court is satisfied that the offender has had reasonable opportunity to do so. Clause 10(6) authorises the court to direct the Secretary to the Department of Justice or the offender to obtain another assessment report or a report of any other kind. Clause 11 sets out when a court may make an extended supervision order. Clause 11(1) sets out the matters of which the court must be satisfied before it may make an extended supervision order. The court can only make such an order if it is satisfied that the offender is likely to commit a relevant offence if released in the 2

 


 

community on the completion of his or her custodial sentence and not made subject to an extended supervision order. The court must be satisfied of this to a high degree of probability. Clause 11(2) places the onus on the Secretary to the Department of Justice to prove that the offender is likely to commit a relevant offence if released into the community without being subject to an extended supervision order Clause 11(3) lists the matters to which the court must have regard in determining whether the offender is likely to commit a relevant offence if released into the community without an extended supervision order. Clause 11(4) allows the Secretary or the offender to file a notice of intention to dispute the whole or a part of an assessment report or other report made to the court. Clause 11(5) provides that if a notice of intention to dispute an assessment report is filed, the court must not take account of the report or the part in dispute until the disputing party has had an opportunity to lead evidence on the disputed matters and cross- examine the author of the report on its contents. Clause 11(6) requires the Secretary to the Department of Justice to cause a copy of the extended supervision order, if made by the court, to be given to the Adult Parole Board as soon as practicable. Division 2--Extended Supervision Orders Clause 12 sets out the matters that must be contained in an extended supervision order. Clause 13 specifies when an extended supervision order commences. If the offender is serving a custodial sentence when the order is made, it commences on the completion of that sentence. If the offender is not serving a custodial sentence when the order is made, it commences on the date specified in the order. Clause 14 sets out period for which an extended supervision order is in force. The court can make an extended supervision order for a period of no more than 15 years. This same maximum period also applies where a new extended supervision order is made to replace another extended supervision order, regardless of how much of that other order remained unexpired at the time when it was revoked. 3

 


 

Clause 15 deals with the conditions of an extended supervision order. Clauses 15(1) to 15(3) detail the conditions that must attach to all extended supervision orders and the purpose of those conditions. The conditions that must attach to an extended supervision order include that the offender must-- · obey all lawful instructions and directions of the Secretary to the Department of Justice given under clause 16(1); and · obey all lawful instructions and directions of the Adult Parole Board given under clause 16(2). Clause 16 provides for the instructions and directions that may be given to an offender who is subject to an extended supervision order by the Secretary to the Department of Justice and the Adult Parole Board. Clause 16(1) allows the Secretary to the Department of Justice to give an offender subject to an extended supervision order any instruction or direction necessary to ensure the effective and efficient implementation and administration of the conditions of the order. Clauses 16(2) and 16(3) allow the Adult Parole Board to, at any time, give an offender who is subject to an extended supervision order any instruction or direction necessary to achieve the purposes of the order and provides a non-exhaustive list of instructions or directions that the Adult Parole Board may make. Clause 16(4) makes it clear that the Secretary to the Department of Justice or the Adult Parole Board may vary their instructions or directions to an offender. Clause 16(5) provides that, where the Adult Parole Board makes or varies an instruction or direction, it must give written notice of that instruction or direction to the offender as soon as practicable. Clause 17 deals with the expiry of an extended supervision order. Clause 17(1) sets out when an extended supervision order expires. Clauses 17(2) to 17(4) set out the notification requirements imposed on the Director of Public Prosecutions and the Secretary to the Department of Justice in the event that an indefinite sentence is imposed on an offender who is subject to an extended supervision order. Clause 17(5) makes it clear that an offender ceases to be subject to the conditions of an order on its expiry. 4

 


 

Clause 18 provides that an extended supervision order will be revived if the indefinite sentence, which was imposed on an offender who is subject to an extended supervision order, is subsequently quashed or set aside by a court. This clause also sets out the notification requirements imposed on the Director of Public Prosecutions and the Secretary to the Department of Justice in this event. Clause 19 sets out the periods during which an extended supervision order will be suspended and provides that the period of suspension does not count in calculating the period still existing on the order. This clause also makes it clear that an offender is not subject to the conditions of an extended supervision order while it is suspended. Clause 20 sets out the notification requirements imposed on the Secretary to the Department of Justice and others in the event that an extended supervision order is suspended and when it recommences following suspension. Division 3--Review of Extended Supervision Orders Clause 21 provides for the review by the court of an extended supervision order which is in force. Clause 21(1) provides that the court that made an extended supervision order must review the order at intervals of not more than 3 years, or any shorter interval specified in the order. Clause 21(2) makes it clear that the Secretary to the Department of Justice must initiate the periodic reviews of an extended supervision order as required by clause 21(1). This clause also empowers the Secretary to the Department of Justice to apply at any time for a review of an order. Clause 21(3) enables the offender, with the leave of the court, to apply for a review of an extended supervision order at any time. Clause 21(4) sets out the purpose of the review, which is to determine whether the offender should remain subject to the extended supervision order. Clause 22 specifies the procedures that apply on a review of an extended supervision order. These reflect the procedures that apply on an application to make an extended supervision order, with necessary modifications. Clause 23 sets out the requirements for determining a review of an extended supervision order. 5

 


 

Clause 23(1) sets out the test the court must apply on the review of an extended supervision order. The court must revoke the order unless it is satisfied that the offender is likely to commit a relevant offence if in the community without being subject to an extended supervision order. Clause 23(2) provides that the Secretary to the Department of Justice has the onus of proving that the offender is likely to commit a relevant offence if in the community without being subject to an extended supervision order Clause 23(3) sets out the matters to which the court must have regard in determining whether the offender is likely to commit a relevant offence if in the community without being subject to an extended supervision order. Clauses 23(4) and 23(5) provide that a party may file a notice of intention to dispute the whole or any part of any assessment report filed and sets out the process to be taken by the court if such a notice is filed. Clause 23(6) provides that a court on review does not need to be constituted by the same judge who made the extended supervision order. Clause 23(7) requires the Secretary to the Department of Justice to provide the Adult Parole Board with a copy of any revoking order the court makes as soon as practicable. Division 4--Renewal of Extended Supervision Orders Clause 24 allows for the Secretary to the Department of Justice to apply for the renewal of an extended supervision order while the order is in force and regulates the application, determination and notification procedure and requirements that apply to a renewal application. Clause 25 sets out the matters that must be contained in a renewed extended supervision order. Division 5--General Provisions relating to Proceedings Clause 26 provides that proceedings on an application made under Part 2 of the Act are criminal in nature, unless otherwise provided by the Act Clause 27 allows the court to hold a directions hearing in respect of an application under Part 2 of the Act, imposes an obligation on the court to give notice of the application and allows the court to give any directions it considers fit at the hearing. 6

 


 

Clause 28 Clause 28(1) authorises the court to order the offender to attend for a personal examination by a medical expert or any other person for the purpose of the application. Clause 28(2) makes it clear that this does not empower an order to be made that would require an offender to submit to a personal examination or actively cooperate in a personal examination. Clause 29 provides that the offender must be present during the hearing of any application made under Part 2 of the Act, except-- · where the offender acts in a way that makes the hearing in the offender's presence impracticable and the court has ordered that the offender is removed from the court; or · where the offender is unable to attend due to illness or other reason and the court is satisfied that the offender will not be prejudiced if the hearing proceeds and it is in the interests of justice that the hearing does proceed. Clause 30 empowers the court to issue an arrest warrant where the offender has failed to appear at a hearing under Part 2 of the Bill or in circumstances where the offender has absconded or is unlikely to attend a hearing. Clause 31 regulates the issue and execution of an arrest warrant issued under clause 30. Clause 31(4) requires an offender arrested under a warrant to be brought before the court as soon as practicable and sets out what action the court may take in respect of the offender. Clause 31(5) imposes obligations to return an offender who is remanded in custody back to the court at regular intervals where the court can reconsider the continued detention of the offender. Clause 31(5) sets the standard of accommodation and meals that must be afforded to the offender if he or she is required to be detained in police custody over night, except in limited circumstances. Clause 31(7) allows the court to make orders that ensure an offender detained in custody is delivered to court for the purpose of a hearing under Part 2 of the Act. Clause 32 authorises the court to adjourn the hearing of any application under Part 2 of the Act and provides that the provisions of the Bail Act 1977 apply in respect of the offender. 7

 


 

Clause 33 provides that the offender is entitled to legal representation at the hearing of any application under Part 2 of the Act Clause 34 provides that, in determining an application under Part 2 of the Act, the court may have regard to whether the offender cooperated in the preparation of an assessment report, and if he or she did not cooperate, the reasons for this. Clause 35 requires the court to document the reasons for its decision in respect of an application under Part 2 of the Act and to-- · enter those reasons on the court record; and · cause a copy of any order made to be served on the Secretary to the Department of Justice and the offender. PART 3--APPEALS Clause 36 allows the offender who is subject to an extended supervision order to appeal to the Court of Appeal against a relevant decision and sets out what constitutes a relevant decision for the purpose of appeals by the offender. Clause 37 allows the Secretary to the Department of Justice, if he or she considers it is in the public interest to do so, to appeal to the Court of Appeal against a relevant decision and sets out what constitutes a relevant decision for the purpose of appeals by the Secretary. Clause 38 sets out the procedure for the Secretary to the Department of Justice or the offender to appeal a relevant decision and the notification requirements after giving notice of appeal to the Court of Appeal. The clause also provides that the extended supervision order will not be stayed by giving notice of appeal unless the court that made the order or the Court of Appeal directs otherwise. Clause 39 Clause 39(1) sets out the powers of the Court of Appeal in respect of an appeal made under Part 3 of the Act. Clause 39(2) imposes obligations on a court to make an extended supervision order if the Court of Appeal determined that the extended supervision order should have been made or renewed. Clause 39(3) deems the period between the revocation of an extended supervision and an order of the Court of Appeal reviving the operation of that extended supervision order to be a period of suspension for the purpose of calculating the time remaining on the order. 8

 


 

PART 4--BREACH OF AN EXTENDED SUPERVISION ORDER Clause 40 makes it an offence to breach an extended supervision order without reasonable excuse and imposes a penalty of level 6 imprisonment, which equates to a maximum of 5 years imprisonment. Clause 41 sets out the procedure for initiating and dealing with the charge of breaching an extended supervision order. PART 5--MISCELLANEOUS Clause 42 provides that the court, by application or by its own initiative, may suppress evidence or other information relating to a proceeding under the Act if it is in the public interest to do so. The clause also provides that it is an offence to publish or cause to be published information in contravention of the suppression order. Clause 43 permits, except as provided for in a suppression order, the Secretary to the Department of Justice or any other person employed by that Department to share information with the Adult Parole Board if the person divulging the information believes on reasonable grounds that it is necessary to enable the Board to exercise its functions under the Act or any other Act This clause also permits, except as provided for in a suppression order, the Adult Parole Board to share information with the Secretary to the Department of Justice or any other person employed by that Department if the Board believes on reasonable grounds that it is necessary to enable the Secretary to exercise his or her functions under the Act or any other Act. Clause 44 places restrictions on the disclosure of personal information, which is information from which a person's identity is apparent or can reasonably be ascertained, by the Adult Parole Board Clause 45 sets out the method of serving a document that must be served on an offender or the Secretary to the Department of Justice under the Act. Clause 46 contains a general regulation making power. 9

 


 

Clause 47 makes a number of consequential amendments to the Corrections Act 1986. Section 69(1) of the Corrections Act 1986 sets out the functions of the Adult Parole Board. Clause 47(1) inserts new paragraph (ab) into section 69(1) of that Act to give the Adult Parole Board the functions under this Act. Section 70 of the Corrections Act 1986 provides for the circumstances in which the Secretary to the Department of Justice must provide assistance to the Adult Parole Board. Clause 47(2) inserts a new paragraph (ab) into that section to provide that the Secretary to the Department of Justice must provide this assistance in supervising persons subject to an extended supervision order under this Act. Section 72 of the Corrections Act 1986 impose certain annual and other reporting obligations on the Adult Parole Board. Clauses 47(3) and 47(4) make a number of amendments to that section to require the Adult Parole Board to report on the operation of this Act as part of its annual report, and to provide certain reports to the Minister. Section 73 of the Corrections Act 1986 provides that community corrections officers are subject to the Adult Parole Board's directions in relation to a parole order or home detention order. Clause 47(7) amends this section to provide that employees of the Department of Justice are subject to the directions of the Adult Parole Board when providing assistance in relation to an extended supervision order. Clause 48 makes a consequential amendment to section 5 of the Sentencing Act 1991 by inserting new section 5(2BA) and (2BB). New section 5(2BA) makes it clear that in sentencing an offender, the court-- · must not have regard to the fact that a person is subject to an extended supervision order, but may have regard to the conditions of that order and the terms of any current directions given by the Adult Parole Board under that order if this is relevant to the conditions of any sentence the court imposes; and · must not have regard to any possibility or likelihood of an application being made under this Act for an extended supervision order in relation to the offender. New section 5(2BB) empowers the court to request the Secretary to the Department of Justice to provide it with a report setting out 10

 


 

the conditions of an extended supervision order and any current directions given by the Adult Parole Board for the purposes of taking these into account under new section 5(2BA)(a) of the Sentencing Act 1991. SCHEDULE Schedule specifies those offences that are relevant offences for the purposes of the definition of "relevant offence" in clause 3(1) of the Act. 11

 


 

 


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