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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Dangerous Sexual Offenders Legislation Amendment Bill 2015 Contents Part 1 -- Preliminary 1. Short title 2 2. Commencement 2 Part 2 -- Dangerous Sexual Offenders Act 2006 amended 3. Act amended 3 4. Section 3 amended 3 5. Section 4A inserted 5 4A. When a person commits a serious sexual offence 5 6. Section 4 amended 6 7. Section 7A inserted 6 7A. DPP may take proceedings in the name of the State 6 8. Section 7 amended 6 9. Section 8 amended 7 10. Section 10A inserted 9 10A. Offender's duty to disclose 9 11. Section 10 replaced 11 10. Application may proceed even if offender discharged 11 12. Section 11 amended 11 13. Section 14 amended 11 14. Section 15 deleted 12 15. Section 16 amended 12 16. Section 17A inserted 13 17A. Victim submissions 13 17. Section 17 amended 15 18. Section 18 amended 15 171--2 page i Dangerous Sexual Offenders Legislation Amendment Bill 2015 Contents 19. Section 23A replaced 17 23A. Reports 17 20. Section 23 amended 17 21. Section 24A amended 18 22. Section 24 amended 18 23. Part 3 heading amended 19 24. Section 29 amended 19 25. Section 30 amended 20 26. Section 31 amended 20 27. Section 32 replaced 20 32. Reports 20 28. Section 33 amended 21 29. Section 34 amended 21 30. Section 35 amended 22 31. Part 5 heading replaced 22 Part 5 -- Reports 32. Sections 37A and 37B inserted 22 37A. Terms used 22 37B. Authority to examine 23 33. Section 37 replaced 23 37. Preparation of report by qualified expert 23 38A. Preparation of other report 24 34. Section 38 amended 24 35. Section 39 replaced 26 39. Copies of report to DPP and subject 26 36. Section 40AA inserted 26 40AA. Mentally unfit offender 26 37. Section 40 amended 26 38. Section 41 amended 27 39. Section 42 amended 28 40. Section 43 amended 28 41. Section 44 amended 29 42. Section 46A amended 29 43. Section 46B inserted 30 46B. Exchange of information 30 44. Various uses of term "has to" amended 31 Part 3 -- Criminal Procedure Act 2004 amended 45. Act amended 33 46. Section 51 amended 33 page ii Dangerous Sexual Offenders Legislation Amendment Bill 2015 Contents Part 4 -- Evidence Act 1906 amended 47. Act amended 34 48. Section 36C amended 34 Part 5 -- Prisons Act 1981 amended 49. Act amended 35 50. Section 113B amended 35 Part 6 -- Sentence Administration Act 2003 amended 51. Act amended 36 52. Section 50 amended 36 Part 7 -- Sentencing Act 1995 amended 53. Act amended 37 54. Section 8 amended 37 55. Section 98 amended 37 Part 8 -- Young Offenders Act 1994 amended 56. Act amended 38 57. Section 189 amended 38 58. Section 190 amended 38 page iii Western Australia LEGISLATIVE COUNCIL (As amended in Committee) Dangerous Sexual Offenders Legislation Amendment Bill 2015 A Bill for An Act to amend -- • the Dangerous Sexual Offenders Act 2006; and • the Criminal Procedure Act 2004; and • the Evidence Act 1906; and • the Prisons Act 1981; and • the Sentence Administration Act 2003; and • the Sentencing Act 1995; and • the Young Offenders Act 1994. The Parliament of Western Australia enacts as follows: page 1 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Part 1 Preliminary s. 1 1 Part 1 -- Preliminary 2 1. Short title 3 This is the Dangerous Sexual Offenders Legislation Amendment 4 Act 2015. 5 2. Commencement 6 This Act comes into operation as follows -- 7 (a) Part 1 -- on the day on which this Act receives the 8 Royal Assent; 9 (b) the rest of the Act -- on a day fixed by proclamation, 10 and different days may be fixed for different provisions. page 2 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Dangerous Sexual Offenders Act 2006 amended Part 2 s. 3 1 Part 2 -- Dangerous Sexual Offenders 2 Act 2006 amended 3 3. Act amended 4 This Part amends the Dangerous Sexual Offenders Act 2006. 5 4. Section 3 amended 6 (1) In section 3(1) delete the definitions of: 7 commit a serious sexual offence 8 continuing detention order 9 Division 2 continuing detention order 10 Division 2 order 11 Division 4 continuing detention order 12 serious sexual offence 13 supervision order 14 under sentence of imprisonment 15 (2) In section 3(1) insert in alphabetical order: 16 17 Board means the Prisoners Review Board established 18 by the Sentence Administration Act 2003 section 102; 19 commit a serious sexual offence has the meaning 20 given in section 4A; 21 continuing detention order means an order made 22 under section 17(1)(a); 23 Division 2 order means -- 24 (a) a continuing detention order; or 25 (b) a supervision order made under 26 section 17(1)(b); 27 psychologist has the meaning given in the Mental 28 Health Act 2014 section 4; page 3 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Part 2 Dangerous Sexual Offenders Act 2006 amended s. 4 1 qualified expert means -- 2 (a) a psychiatrist; or 3 (b) a qualified psychologist; 4 qualified psychologist means a psychologist holding a 5 qualification or accreditation prescribed for the 6 purposes of this definition; 7 serious sexual offence means -- 8 (a) a serious sexual offence as defined in the 9 Evidence Act 1906 section 106A; or 10 (b) an offence of conspiracy or incitement to 11 commit an offence referred to in paragraph (a); 12 or 13 (c) an offence against a law of the Commonwealth, 14 of another State or of a Territory that is 15 prescribed to correspond to an offence 16 described in paragraph (a) or (b); 17 supervision order means an order under 18 section 17(1)(b) or 33(1)(b)(ii); 19 under a custodial sentence means -- 20 (a) under a sentence of imprisonment imposed by a 21 court of Western Australia (including an 22 indefinite sentence imposed under the 23 Sentencing Act 1995 section 98(1)) or an 24 indeterminate sentence imposed under The 25 Criminal Code section 661 or 662; or 26 (b) under a sentence of imprisonment imposed 27 under a law of the Commonwealth; or 28 (c) under a sentence of imprisonment that under 29 the Prisoners (Interstate Transfer) Act 1983 30 section 25(1) is deemed to have been imposed 31 by a court of Western Australia; or 32 (d) under a sentence of detention under the Young 33 Offenders Act 1994 for an offence committed page 4 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Dangerous Sexual Offenders Act 2006 amended Part 2 s. 5 1 after the offender had reached 16 years of age, 2 the term of which has not elapsed; 3 victim means a person upon whom a serious sexual 4 offence has been committed by a person who is or has 5 been an offender; 6 victim submission means a submission made under 7 section 17A(3) or (4). 8 9 5. Section 4A inserted 10 After section 3 insert: 11 12 4A. When a person commits a serious sexual offence 13 (1) For the purposes of this Act, unless the contrary 14 intention appears, a person commits a serious sexual 15 offence if the person -- 16 (a) does an act or makes an omission in any State 17 or Territory that constitutes a serious sexual 18 offence; or 19 (b) does an act or makes an omission outside 20 Australia that, if done within this State, would 21 constitute a serious sexual offence. 22 (2) For the purposes of subsection (1), it makes no 23 difference -- 24 (a) whether the person doing the act or making the 25 omission would be likely to be charged with an 26 offence; or 27 (b) whether the person doing the act or making the 28 omission would, if charged with an offence, be 29 found mentally fit to stand trial; or page 5 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Part 2 Dangerous Sexual Offenders Act 2006 amended s. 6 1 (c) whether the person doing the act or making the 2 omission would, if tried for an offence, be 3 convicted. 4 5 6. Section 4 amended 6 In section 4(a) delete "community; and" and insert: 7 8 community and of victims; and 9 10 7. Section 7A inserted 11 After section 6 insert: 12 13 7A. DPP may take proceedings in the name of the State 14 The DPP may make applications, and take other 15 proceedings, for which this Act provides in the name of 16 the State. 17 18 8. Section 7 amended 19 After section 7(3) insert: 20 21 (4) In considering whether it is satisfied as required in 22 subsection (1), the court must disregard the possibility 23 that the person might temporarily be prevented from 24 committing a serious sexual offence by imprisonment, 25 by remand in custody or by the imposition of bail 26 conditions. 27 page 6 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Dangerous Sexual Offenders Act 2006 amended Part 2 s. 9 1 9. Section 8 amended 2 (1) Delete section 8(1) and insert: 3 4 (1) The DPP may file with the Supreme Court an 5 application for orders under section 14 and for a 6 Division 2 order in relation to a person (the 7 offender) -- 8 (a) who is under a custodial sentence for a serious 9 sexual offence; or 10 (b) who has been under a custodial sentence for a 11 serious sexual offence and who, at all times 12 since being discharged from that sentence, has 13 been under a custodial sentence for another 14 offence or other offences. 15 (2A) An application under subsection (1) need not specify 16 whether the Division 2 order sought is a continuing 17 detention order or a supervision order under 18 section 17(1)(b). 19 20 (2) In section 8(2) delete "the person under sentence of 21 imprisonment" and insert: 22 23 the offender 24 25 (3) In section 8(3): 26 (a) delete "the person under sentence of imprisonment" and 27 insert: 28 29 the offender 30 page 7 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Part 2 Dangerous Sexual Offenders Act 2006 amended s. 9 1 (b) delete "the application cannot" and insert: 2 3 an application under subsection (1) cannot 4 5 (c) delete "person might" and insert: 6 7 offender might 8 9 (d) delete "6 months" and insert: 10 11 one year 12 13 (4) Delete section 8(4) and insert: 14 15 (4A) If -- 16 (a) an offender is subject to a supervision order 17 (the current order); and 18 (b) the current order is to expire within one year, 19 the DPP may file with the Supreme Court an 20 application for orders under section 14 and for a further 21 supervision order under section 17(1)(b) in relation to 22 the offender, the further order to take effect on the 23 expiry of the current order. 24 (4) An application filed under this section must be 25 accompanied by any affidavits to be relied on by the 26 DPP for the purpose of seeking an order or orders 27 under section 14. 28 29 (5) In section 8(6) delete "subsection (1)," and insert: 30 31 this section, 32 page 8 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Dangerous Sexual Offenders Act 2006 amended Part 2 s. 10 1 10. Section 10A inserted 2 After section 9 insert: 3 4 10A. Offender's duty to disclose 5 (1) In this section -- 6 expert evidence material relevant to an application 7 means -- 8 (a) a copy of every statement, recording or report 9 obtained by the offender from any person who 10 the offender intends to call to give expert 11 evidence that is relevant to the application; and 12 (b) written notice of the name and, if known, the 13 address, of any person from whom no 14 statement, recording or report has been 15 obtained by the offender but who the offender 16 intends to call to give expert evidence that is 17 relevant to the application; and 18 (c) a written description of the expert evidence 19 referred to in paragraph (b). 20 (2) This section applies to an application for a Division 2 21 order. 22 (3) Subject to subsection (5), at least 14 days before the 23 day fixed under section 14 for the hearing of the 24 application the offender must file with the court and 25 give to the DPP a copy of -- 26 (a) any expert evidence material relevant to the 27 application; and 28 (b) written notice of any objection by the offender 29 to -- 30 (i) any document that the DPP intends to 31 adduce at the hearing of the application; 32 or page 9 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Part 2 Dangerous Sexual Offenders Act 2006 amended s. 10 1 (ii) any evidence to be given by a witness 2 that the DPP intends to call at the 3 hearing of the application; 4 and 5 (c) written notice of the grounds for any objection 6 mentioned in paragraph (b). 7 (4) If, after complying with subsection (3), an offender 8 receives or obtains further expert evidence material 9 relevant to the application, the offender must file it 10 with the court and give it to the DPP as soon as 11 practicable. 12 (5) In respect of a requirement arising under subsection (3) 13 or (4), the court may on its own initiative or on the 14 application of either party to the application make an 15 order -- 16 (a) that dispenses with all or part of the 17 requirement, if it is satisfied -- 18 (i) there is a good reason to do so; and 19 (ii) no miscarriage of justice will result; 20 or 21 (b) that shortens or extends the time for obeying 22 the requirement; or 23 (c) that amends or cancels an order made 24 previously under this section; or 25 (d) as to any other matter that the court considers is 26 just. 27 page 10 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Dangerous Sexual Offenders Act 2006 amended Part 2 s. 11 1 11. Section 10 replaced 2 Delete section 10 and insert: 3 4 10. Application may proceed even if offender 5 discharged 6 An application under section 8 may proceed and the 7 offender may be dealt with in accordance with this Act 8 even if, while the application is pending -- 9 (a) in the case of an application under section 8(1), 10 the offender ceases to be under a custodial 11 sentence; or 12 (b) in the case of an application under 13 section 8(4A), the offender ceases to be subject 14 to a supervision order. 15 16 12. Section 11 amended 17 Delete section 11(2). 18 13. Section 14 amended 19 (1) In section 14(1) delete "must" and insert: 20 21 must, subject to subsection (2A), 22 23 (2) After section 14(1) insert: 24 25 (2A) If -- 26 (a) the offender has been charged with a further 27 offence; and 28 (b) that charge has not been dealt with; and page 11 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Part 2 Dangerous Sexual Offenders Act 2006 amended s. 14 1 (c) the court considers that the interests of justice 2 require that the application for a Division 2 3 order should not be heard until that charge has 4 been dealt with, 5 the court may defer fixing a day for the hearing of the 6 application, or if it has already fixed a day adjourn the 7 hearing of the application, until after the further charge 8 has been dealt with. 9 10 (3) Delete section 14(2)(a) and insert: 11 12 (a) the court must order that the offender undergo 13 examinations by 2 qualified experts named by 14 the court, at least one of whom is to be a 15 psychiatrist, for the purposes of preparing 16 reports in accordance with section 37 to be used 17 on the hearing of the application; and 18 (ba) the court may, on the application of the DPP or 19 of the offender, order that a person or body 20 named by the court prepare a report in 21 accordance with section 38A to be used on the 22 hearing of the application on questions or topics 23 set out in the order; and 24 25 14. Section 15 deleted 26 Delete section 15. 27 15. Section 16 amended 28 Delete section 16(3) and insert: 29 30 (3) When an application is taken to be dismissed under 31 subsection (2), any order under section 14(2)(b) 32 relating to the offender is discharged. 33 page 12 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Dangerous Sexual Offenders Act 2006 amended Part 2 s. 16 1 16. Section 17A inserted 2 At the end of Part 2 Division 1 insert: 3 4 17A. Victim submissions 5 (1) In this section -- 6 make available means make available to an offender or 7 to a person acting on behalf of, or representing, the 8 offender. 9 (2) This section applies to -- 10 (a) an application under section 8(1) for a 11 Division 2 order; and 12 (b) an application under section 8(4A) for an order 13 under section 17(1)(b); and 14 (c) an application under section 19 to amend the 15 conditions of a supervision order; and 16 (d) an application under section 22 for an order 17 under section 23; and 18 (e) an application under section 29 or 30 for the 19 review of a person's detention. 20 (3) Where an application to which this section applies is 21 made in relation to a person, a victim of that person 22 may make a submission to the court in relation to the 23 need to ensure adequate protection of the victim. 24 (4) If because of age, disability or any other reason a 25 victim is personally incapable of making a submission, 26 another person may make it on the victim's behalf if 27 the court is satisfied that it is appropriate for that other 28 person to do so. page 13 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Part 2 Dangerous Sexual Offenders Act 2006 amended s. 17 1 (5) A victim submission must be in writing. 2 (6) At the hearing of an application to which this section 3 applies, the court must make available any victim 4 submission made if -- 5 (a) the court considers that making available the 6 submission is essential in the interests of 7 fairness and justice; and 8 (b) the victim making the submission has 9 consented to its being made available; and 10 (c) the court has afforded the victim making the 11 submission an opportunity -- 12 (i) to amend the submission before it is 13 made available; or 14 (ii) to withdraw the submission. 15 (7) Subject to subsections (8), (9) and (10), in considering 16 an application to which this section applies, the court 17 can have regard to any victim submission made. 18 (8) If a victim submission is not made available at the 19 hearing because the victim making the submission has 20 not consented, the court must not have regard to the 21 submission. 22 (9) The court must not have regard to a victim submission 23 that has been withdrawn. 24 (10) If the victim making a submission has amended the 25 submission, the court must have regard only to the 26 amended submission. 27 page 14 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Dangerous Sexual Offenders Act 2006 amended Part 2 s. 17 1 17. Section 17 amended 2 (1) In section 17(1): 3 (a) delete "may --" and insert: 4 5 must -- 6 7 (b) delete paragraph (b) and insert: 8 9 (b) order that, with effect from a stated date not 10 earlier than 21 days after the date the order is 11 made, and continuing for a stated period, the 12 offender, when not in custody, is to be subject 13 to stated conditions that the court, subject to 14 section 18, considers appropriate. 15 16 (2) After section 17(2) insert: 17 18 (3) A court hearing an application under section 8(4A) 19 must not make an order under subsection (1)(a). 20 21 18. Section 18 amended 22 (1) Before section 18(1) insert: 23 24 (1A) In this section -- 25 make public means -- 26 (a) provide to any representative of the news media 27 for publication or broadcast; or 28 (b) make publicly available by means of the 29 internet. 30 page 15 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Part 2 Dangerous Sexual Offenders Act 2006 amended s. 18 1 (2) After section 18(1) insert: 2 3 (2A) If the court makes a supervision order against a person, 4 the order may require that the person not make public 5 any statement, information or opinion relating directly 6 or indirectly to any victim of an offence committed by 7 the person. 8 (2B) When considering whether to impose a requirement 9 under subsection (2A) the court must have regard to -- 10 (a) the gravity and nature of the person's offences; 11 and 12 (b) the likely impact on the victims of the person 13 providing or making available any statement, 14 information or opinion; and 15 (c) the public interest generally. 16 17 (3) In section 18(2): 18 (a) delete "The supervision" and insert: 19 20 A supervision 21 22 (b) in paragraph (b) delete "order." and insert: 23 24 order; or 25 26 (c) after paragraph (b) insert: 27 28 (c) to ensure adequate protection of victims of 29 offences committed by the person subject to the 30 order. 31 page 16 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Dangerous Sexual Offenders Act 2006 amended Part 2 s. 19 1 (4) In section 18(3) delete "the supervision" and insert: 2 3 a supervision 4 5 19. Section 23A replaced 6 Delete section 23A and insert: 7 8 23A. Reports 9 After an application is made under section 22 in 10 relation to a person the Supreme Court -- 11 (a) may order that the person undergo examination 12 by one or more qualified experts named by the 13 court for the purposes of preparing a report in 14 accordance with section 37; and 15 (b) on the application of the DPP or of the person, 16 may order that a person or body named by the 17 court prepare a report in accordance with 18 section 38A on questions or topics set out in the 19 order. 20 21 20. Section 23 amended 22 (1) Delete section 23(1)(a) and (b) and insert: 23 24 (a) make an order amending the conditions of the 25 supervision order, or extending the period for 26 which the offender is to be subject to the 27 conditions of the supervision order, or both; or 28 (b) if the court is also satisfied that there is an 29 unacceptable risk that, if an order under this 30 paragraph were not made, the person would 31 commit a serious sexual offence, make a page 17 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Part 2 Dangerous Sexual Offenders Act 2006 amended s. 21 1 continuing detention order in relation to the 2 person; or 3 (c) make no order. 4 5 (2) After section 23(1) insert: 6 7 (2A) In considering whether it is satisfied as required in 8 subsection (1)(b), the court must disregard the 9 possibility that the person might temporarily be 10 prevented from committing a serious sexual offence by 11 imprisonment, by remand in custody or by the 12 imposition of bail conditions. 13 14 (3) In section 23(2) delete "subsection (1)(a) or (b)," and insert: 15 16 subsection (1), 17 18 21. Section 24A amended 19 After section 24A(3) insert: 20 21 (4A) For the purposes of subsection (3), in considering 22 whether releasing the person is justified by exceptional 23 circumstances the court may, as it thinks fit, receive 24 and take into account information put before it, 25 whether or not that information would normally be 26 admissible in a court of law. 27 28 22. Section 24 amended 29 In section 24(1) delete "other than a sexual offence as defined in 30 the Evidence Act 1906 section 36A,". page 18 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Dangerous Sexual Offenders Act 2006 amended Part 2 s. 23 1 23. Part 3 heading amended 2 In the heading to Part 3 delete "Annual reviews" and 3 insert: 4 5 Reviews 6 7 24. Section 29 amended 8 (1) In section 29(1) delete "must" and insert: 9 10 may 11 12 (2) In section 29(2): 13 (a) delete "Reviews have to be" and insert: 14 15 The DPP must apply under subsection (1) so as to 16 ensure that reviews are 17 18 (b) in paragraph (a) before "order" insert: 19 20 continuing detention 21 22 (c) in paragraph (b) delete "1 year" and insert: 23 24 2 years 25 26 (3) After section 29(2) insert: 27 28 (3) The periods mentioned in subsection (2)(a) and (b) are 29 extended by any period during which the person is in 30 custody serving a sentence of imprisonment. page 19 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Part 2 Dangerous Sexual Offenders Act 2006 amended s. 25 1 25. Section 30 amended 2 In section 30(3) delete "after the detention has been reviewed 3 under section 29(2)(a)." and insert: 4 5 at least one year after the last occasion on which the person's 6 detention has been reviewed under section 29(2)(b). 7 8 26. Section 31 amended 9 (1) In section 31(2) delete "The application" and insert: 10 11 Subject to subsection (3), the application 12 13 (2) After section 31(2) insert: 14 15 (3) The court may adjourn the hearing of the application, 16 and the carrying out of the review, where good cause is 17 shown. 18 19 27. Section 32 replaced 20 Delete section 32 and insert: 21 22 32. Reports 23 (1) Unless the court otherwise orders, the chief executive 24 officer must engage one or more qualified experts to 25 prepare reports in accordance with section 37 to be 26 used on a review under this Part. 27 (2) On the application of the DPP or the person whose 28 detention is to be reviewed, the court may order the 29 chief executive officer to engage a person or body page 20 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Dangerous Sexual Offenders Act 2006 amended Part 2 s. 28 1 named by the court to prepare a report in accordance 2 with section 38A on questions or topics set out in the 3 order. 4 5 28. Section 33 amended 6 (1) Delete section 33(1) and (2) and insert: 7 8 (1) On a review of a person's detention under 9 section 31 -- 10 (a) if the court does not find that the person 11 remains a serious danger to the community it 12 must rescind the continuing detention order; or 13 (b) if the court finds that the person remains a 14 serious danger to the community it must -- 15 (i) affirm the continuing detention order; or 16 (ii) with effect from a date specified by the 17 court, but not earlier than 21 days after 18 the day on which the review is 19 concluded, rescind the continuing 20 detention order and make a supervision 21 order in relation to the person. 22 23 (2) In section 33(3) delete "subsection (2)," and insert: 24 25 subsection (1)(b), 26 27 29. Section 34 amended 28 (1) In section 34 delete "The DPP" and insert: 29 30 (1) The DPP 31 page 21 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Part 2 Dangerous Sexual Offenders Act 2006 amended s. 30 1 (2) At the end of section 34 insert: 2 3 (2) Unless the Court of Appeal orders otherwise, an appeal 4 under subsection (1) cannot be commenced later than 5 21 days after the date of the decision. 6 7 30. Section 35 amended 8 In section 35(2) delete "the Court of Appeal might, in finally 9 determining the appeal," and insert: 10 11 the final determination of the appeal might result in an 12 13 31. Part 5 heading replaced 14 Delete the heading to Part 5 and insert: 15 16 Part 5 -- Reports 17 18 32. Sections 37A and 37B inserted 19 At the beginning of Part 5 insert: 20 21 37A. Terms used 22 In this Part, unless the contrary intention appears -- 23 report means a report prepared under section 14(2)(a) 24 or (ba), 23A(a) or (b) or 32(1) or (2); 25 reporter means -- 26 (a) a qualified expert ordered or engaged to 27 provide a report in relation to a person under 28 section 37; or page 22 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Dangerous Sexual Offenders Act 2006 amended Part 2 s. 33 1 (b) a person or body ordered or engaged to provide 2 a report in relation to a person under 3 section 38A; 4 subject means a person in relation to whom a report is 5 to be prepared in accordance with section 37 or 38A. 6 37B. Authority to examine 7 This section authorises a reporter to examine a subject 8 and to report in accordance with section 37 or 38A. 9 10 33. Section 37 replaced 11 Delete section 37 and insert: 12 13 37. Preparation of report by qualified expert 14 (1) A qualified expert ordered or engaged to provide a 15 report in relation to a person under this section must -- 16 (a) examine the subject; and 17 (b) prepare an independent report. 18 (2) The report must indicate -- 19 (a) the reporter's assessment of the level of risk 20 that, if the subject were not subject to a 21 continuing detention order or a supervision 22 order, the subject would commit a serious 23 sexual offence; and 24 (b) the reasons for the reporter's assessment. 25 (3) The reporter must have regard to any report or 26 information given under section 38(1). 27 (4) The reporter must prepare the report even if the subject 28 does not cooperate, or does not cooperate fully, in the 29 examination. page 23 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Part 2 Dangerous Sexual Offenders Act 2006 amended s. 34 1 38A. Preparation of other report 2 (1) A person or body ordered or engaged to provide a 3 report in relation to a person under this section must -- 4 (a) examine the subject, if in their opinion 5 examination is necessary or desirable having 6 regard to the questions and topics to be 7 addressed in the report; and 8 (b) prepare an independent report. 9 (2) The report must -- 10 (a) set out the reporter's opinion on all questions 11 and topics specified in the order or engagement 12 for its preparation; and 13 (b) the basis for that opinion. 14 (3) The reporter must have regard to any report or 15 information given under section 38(2A). 16 (4) The reporter must prepare the report even if the subject 17 does not cooperate, or does not cooperate fully, in any 18 examination the reporter considers necessary or 19 desirable. 20 21 34. Section 38 amended 22 (1) Delete section 38(1) and insert: 23 24 (1) Subject to subsection (2B), the chief executive officer 25 must give to a reporter preparing a report under 26 section 37 any medical, psychiatric, prison or other 27 relevant report or information relating to the subject 28 that is in the chief executive officer's possession or to 29 which the chief executive officer has, or may be given, 30 access. 31 (2A) Subject to subsection (2B), the chief executive officer 32 must give to a reporter preparing a report under page 24 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Dangerous Sexual Offenders Act 2006 amended Part 2 s. 35 1 section 38A any medical, psychiatric, prison or other 2 relevant report or information relevant to the questions 3 and topics to be addressed in the report -- 4 (a) that is in the chief executive officer's 5 possession or to which the chief executive 6 officer has, or may be given, access; and 7 (b) that the reporter considers it necessary or 8 desirable to consider, having regard to the 9 questions and topics to be addressed in the 10 report. 11 (2B) Before giving any document to a reporter under 12 subsection (1) or (2A) the chief executive officer may 13 edit the document to remove or erase any material -- 14 (a) that would identify any person other than the 15 subject; or 16 (b) where a report is to be prepared under 17 section 37, that does not relate to the subject; or 18 (c) where a report is to be prepared under 19 section 38A, that is not relevant to the questions 20 and topics to be addressed in the report. 21 22 (2) In section 38(2) delete "psychiatrist under subsection (1)." and 23 insert: 24 25 reporter under subsection (1) or (2A). 26 27 (3) In section 38(3) delete "the person to be examined" and insert: 28 29 the subject 30 31 Note: The heading to amended section 38 is to read: 32 Providing information to reporter page 25 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Part 2 Dangerous Sexual Offenders Act 2006 amended s. 35 1 35. Section 39 replaced 2 Delete section 39 and insert: 3 4 39. Copies of report to DPP and subject 5 (1) A reporter who prepares a report under section 37 or 6 38A must give a copy of the report to the DPP within 7 7 days after finalising the report. 8 (2) Before the end of the day after the day on which the 9 DPP receives a report under subsection (1), the DPP 10 must give a copy of the report to the subject. 11 12 36. Section 40AA inserted 13 At the beginning of Part 6 insert: 14 15 40AA. Mentally unfit offender 16 (1) In this section -- 17 found not mentally fit means found not mentally fit to 18 stand trial under the Criminal Law (Mentally Impaired 19 Accused) Act 1996. 20 (2) A court may make an order under this Act in respect of 21 an offender even if the offender -- 22 (a) has been found not mentally fit; or 23 (b) if charged with an offence, would be likely to 24 be found not mentally fit. 25 26 37. Section 40 amended 27 (1) In section 40 delete "Proceedings" and insert: 28 29 (1) Proceedings page 26 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Dangerous Sexual Offenders Act 2006 amended Part 2 s. 38 1 (2) At the end of section 40 insert: 2 3 (2) Subsection (1) does not require anything that is to be 4 evidenced for the purposes of this Act to be evidenced 5 to a higher standard than is required by section 7(2). 6 7 38. Section 41 amended 8 (1) Before section 41(1) insert: 9 10 (1A) In this section -- 11 relevant proceeding means judicial proceeding for -- 12 (a) a serious sexual offence; or 13 (b) another offence that the court considers 14 relevant, having regard to the matter for 15 decision before the court. 16 17 (2) Delete section 41(3)(b) and insert: 18 19 (b) anything relevant contained in the official 20 transcript of any relevant proceeding against 21 the offender or person subject to the order; or 22 (c) any relevant material that was tendered to the 23 court, or that informed the court, in a relevant 24 proceeding against the offender or person 25 subject to the order; or 26 (d) any relevant material of the kind mentioned in 27 section 7(3) relating to the offender or person 28 subject to the order. 29 page 27 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Part 2 Dangerous Sexual Offenders Act 2006 amended s. 39 1 39. Section 42 amended 2 (1) Before section 42(1) insert: 3 4 (1A) In this section -- 5 relevant proceeding means judicial proceeding for -- 6 (a) a serious sexual offence; or 7 (b) another offence that the court considers 8 relevant, having regard to the matter for 9 decision before the court. 10 11 (2) Delete section 42(4)(b) and insert: 12 13 (b) anything relevant contained in the official 14 transcript of any relevant proceeding against a 15 person; or 16 (c) any relevant material that was tendered to the 17 court, or that informed the court, in a relevant 18 proceeding against a person; or 19 (d) any relevant material of the kind mentioned in 20 section 7(3) relating to a person. 21 22 40. Section 43 amended 23 In section 43 delete "directions in relation to the conduct of a 24 proceeding under this Act." and insert: 25 26 directions -- 27 (a) with respect to evidence received or to be 28 received under section 42(4); or 29 (b) otherwise in relation to the conduct of a 30 proceeding under this Act. 31 page 28 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Dangerous Sexual Offenders Act 2006 amended Part 2 s. 41 1 41. Section 44 amended 2 (1) Before section 44(1) insert: 3 4 (1A) In this section -- 5 audio link has the meaning given in the Criminal 6 Procedure Act 2004 section 3(1); 7 video link has the meaning given in the Criminal 8 Procedure Act 2004 section 3(1). 9 10 (2) After section 44(2) insert: 11 12 (3) The court may direct that a person entitled under this 13 section to appear is to appear by means of a video link 14 or an audio link. 15 16 42. Section 46A amended 17 (1) In section 46A(1) in the definition of protected person delete 18 paragraph (c) and insert: 19 20 (c) a qualified expert ordered or engaged to 21 provide a report under section 37; or 22 (d) a person or body ordered or engaged to provide 23 a report under section 38A. 24 25 (2) In section 46A(3) delete "An action in tort" and insert: 26 27 A civil action 28 page 29 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Part 2 Dangerous Sexual Offenders Act 2006 amended s. 43 1 43. Section 46B inserted 2 After section 46A insert: 3 4 46B. Exchange of information 5 (1) In this section -- 6 agency means -- 7 (a) the Department that principally assists the 8 Minister administering this Act; and 9 (b) the Department that principally assists the 10 Minister administering the Prisons Act 1981; 11 and 12 (c) the Office of the Director of Public 13 Prosecutions; and 14 (d) the Police Force of Western Australia provided 15 for by the Police Act 1892; and 16 (e) the Department designated as the Police 17 Service; and 18 (f) the Board; 19 head means -- 20 (a) in relation to the Department that principally 21 assists the Minister administering this Act, the 22 chief executive officer of that Department; and 23 (b) in relation to the Department that principally 24 assists the Minister administering the Prisons 25 Act 1981, the chief executive officer of that 26 Department; and 27 (c) in relation to the Office of the Director of 28 Public Prosecutions, the DPP; and 29 (d) in relation to the Police Force of Western 30 Australia and the Department designated as the 31 Police Service, the Commissioner of Police; 32 and page 30 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Dangerous Sexual Offenders Act 2006 amended Part 2 s. 44 1 (e) in relation to the Board, the chairperson of the 2 Board; 3 officer includes, in relation to the Office of the 4 Director of Public Prosecutions, a member of the staff 5 appointed or made available for the performance of the 6 functions of the DPP. 7 (2) For the purpose of implementing the provisions of this 8 Act the head of an agency or an officer of an agency 9 authorised to do so by the head may disclose to an 10 officer of another agency information that is, or could 11 reasonably be expected to be, relevant to the 12 performance of a function under this Act. 13 (3) A person may disclose information under this section 14 even though the disclosure may be contrary to any duty 15 of confidentiality imposed by law or otherwise arising 16 and whether or not the duty of confidentiality arose 17 before this Act commenced but, without limiting the 18 authority given by this section to disclose information, 19 a person to whom confidential information is disclosed 20 under this section is bound by the same duty of 21 confidentiality as applied to the person making the 22 disclosure. 23 (4) A person disclosing information under this section 24 incurs no civil or criminal liability as a result of the 25 disclosure, and is not to be regarded for any purpose as 26 being in breach of any duty of confidentiality. 27 28 44. Various uses of term "has to" amended 29 In the provisions listed in the Table delete "has to" (each 30 occurrence) and insert: 31 32 must 33 page 31 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Part 2 Dangerous Sexual Offenders Act 2006 amended s. 44 1 Table s. 7(1) and (2) s. 8(5) s. 19(2) and (3) s. 20(2) s. 21(2) s. 31(1) page 32 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Criminal Procedure Act 2004 amended Part 3 s. 45 1 Part 3 -- Criminal Procedure Act 2004 amended 2 45. Act amended 3 This Part amends the Criminal Procedure Act 2004. 4 46. Section 51 amended 5 (1) In section 51(4) delete "The hearing" and insert: 6 7 Except as provided in subsection (5A), the hearing 8 9 (2) After subsection (4) insert: 10 11 (5A) On the hearing under subsection (3) of a charge under 12 the Dangerous Sexual Offenders Act 2006 section 40A 13 the accused is required to appear before the court -- 14 (a) in person; or 15 (b) by means of a video link or audio link in 16 accordance with section 77 or 141. 17 page 33 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Part 4 Evidence Act 1906 amended s. 47 1 Part 4 -- Evidence Act 1906 amended 2 47. Act amended 3 This Part amends the Evidence Act 1906. 4 48. Section 36C amended 5 Delete section 36C(5) and insert: 6 7 (5) Nothing in this section prohibits the publication or 8 broadcasting, in consequence of an accusation alleging 9 a sexual offence, of matter consisting only of a report 10 of legal proceedings other than -- 11 (a) proceedings at, or intended to lead to, or on an 12 appeal arising out of, a trial at which the 13 accused is charged with that offence; or 14 (b) proceedings under the Dangerous Sexual 15 Offenders Act 2006 relating to the accused. 16 (6A) The giving of leave under this section does not affect 17 the operation of subsection (1) at any time before the 18 leave is given. 19 page 34 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Prisons Act 1981 amended Part 5 s. 49 1 Part 5 -- Prisons Act 1981 amended 2 49. Act amended 3 This Part amends the Prisons Act 1981. 4 50. Section 113B amended 5 After section 113B(1)(a) insert: 6 7 (ba) a person who has suffered injury, loss or 8 damage as a direct result of a serious sexual 9 offence (as defined in the Dangerous Sexual 10 Offenders Act 2006 section 3(1)) committed by 11 the prisoner, whether or not that injury, loss or 12 damage was reasonably foreseeable by the 13 prisoner; or 14 page 35 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Part 6 Sentence Administration Act 2003 amended s. 51 1 Part 6 -- Sentence Administration Act 2003 amended 2 51. Act amended 3 This Part amends the Sentence Administration Act 2003. 4 52. Section 50 amended 5 After section 50(b) insert: 6 7 (ca) he or she is not subject to an order made under 8 the Dangerous Sexual Offenders Act 2006 9 section 17(1)(a); and 10 page 36 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Sentencing Act 1995 amended Part 7 s. 53 1 Part 7 -- Sentencing Act 1995 amended 2 53. Act amended 3 This Part amends the Sentencing Act 1995. 4 54. Section 8 amended 5 After section 8(1) insert: 6 7 (2) The possibility that an order might be made in respect 8 of the offender under the Dangerous Sexual Offenders 9 Act 2006 is not a mitigating factor. 10 11 55. Section 98 amended 12 In section 98(3): 13 (a) delete "is a danger" and insert: 14 15 would be a danger 16 17 (b) before paragraph (a) insert: 18 19 (aa) is not to decide that the offender would not be a 20 danger merely because of the possibility that an 21 order might be made in respect of the offender 22 under the Dangerous Sexual Offenders 23 Act 2006; and 24 page 37 Dangerous Sexual Offenders Legislation Amendment Bill 2015 Part 8 Young Offenders Act 1994 amended s. 56 1 Part 8 -- Young Offenders Act 1994 amended 2 56. Act amended 3 This Part amends the Young Offenders Act 1994. 4 57. Section 189 amended 5 Delete section 189(7)(c) and insert: 6 7 (c) a court having regard to a conviction for the 8 purposes of the Dangerous Sexual Offenders 9 Act 2006 section 7(3); or 10 (d) the making of a record of anything that 11 paragraph (a), (b) or (c) allows. 12 13 58. Section 190 amended 14 After section 190(1) insert: 15 16 (2A) This section does not prevent evidence of a conviction 17 being received in proceedings under the Dangerous 18 Sexual Offenders Act 2006. 19 20
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