Corrections Amendment (Parole) Bill 2016
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 TABLE OF PROVISIONS Clause Page Part 1--Preliminary 1 1 Purposes 1 2 Commencement 2 Part 2--Amendment of Corrections Act 1986 4 3 Victim may be given certain copies of orders and information about a prisoner 4 4 New sections 32A and 32B inserted 4 5 Search 7 6 Seizure 9 7 Reports 10 8 Release on parole of person imprisoned for sexual offence or serious violent offence 10 9 Cancellation of parole 10 10 Definitions 12 11 Authorisation to use or disclose information 13 12 Regulations 16 13 New section 128 inserted 16 14 New Schedule 4 inserted 16 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 20 15 Definitions 20 16 Who is an eligible offender? 20 17 Secretary may apply for a supervision order 20 18 When may a court make a supervision order? 21 19 Commencement of supervision order 21 20 Period of supervision order 22 21 Core conditions of supervision order 22 22 Suggested conditions 23 23 Other discretionary conditions 23 24 Court may declare a condition to be a restrictive condition 23 25 Court must first be satisfied that there is an unacceptable risk 24 26 Commencement of detention order 24 27 Period of detention order 25 i
Clause Page 28 Determination of application to renew detention order 25 29 When may a court make an interim supervision order? 26 30 When may a court make an interim detention order? 26 31 Commencement of interim order 27 32 Period of interim order 27 33 Provisions affecting interim supervision order 28 34 Leave for review 28 35 Decision on supervision order--general 28 36 Application for review of detention order 29 37 Application for review of condition of supervision order 30 38 New section 78A inserted 30 39 Execution of arrest warrant 31 40 Appeals by offenders 31 41 Visitors to give certain information 31 42 New sections 141A and 141B inserted 32 43 Search 35 44 Seizure and examination 37 45 Register of seized things 38 46 Officers may use force to enforce instructions in certain circumstances 38 47 Officer may give instructions 39 48 Search 39 49 Seizure and examination 40 50 Powers of entry by police officer to monitor compliance 40 51 Power to seize and examine seized items 41 52 New Division 7A inserted into Part 10 41 53 Specified officers 46 54 Warning that search or seizure is to occur and that reasonable force may be used 47 55 Officer may direct offender to provide assistance--computers and other devices 47 56 Retention by Chief Commissioner of Police or Commissioner of seized things 48 57 Chief Commissioner of Police or Commissioner may apply to Magistrates' Court for disposal or destruction order 48 58 Detention power 48 59 Search of person 49 60 Powers of entry and search by police officer to arrest offender 49 61 Sharing of information 50 62 Regulations 50 63 Schedule 1--Relevant offences 50 Part 4--Amendment of Children, Youth and Families Act 2005 52 64 New Division 3AA of Part 5.8 inserted 52 ii
Clause Page Part 5--Repeal of amending Act 58 65 Repeal of amending Act 58 ═══════════════ Endnotes 59 1 General information 59 iii
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 [Assented to ] The Parliament of Victoria enacts: Part 1--Preliminary 1 Purposes The purposes of this Act are-- (a) to amend the Corrections Act 1986, the Children, Youth and Families Act 2005 and the Serious Sex Offenders (Detention and Supervision) Act 2009-- 1
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 1--Preliminary (i) to insert new offences to prohibit the operation of remotely piloted aircraft and helicopters or possession of remotely piloted aircraft in, at or in the vicinity of prisons, residential facilities or youth justice facilities; and (ii) to clarify the search and seizure powers applying to particular officers and police officers in relation to the new offences; and (b) to amend the Corrections Act 1986-- (i) to apply stricter parole laws to prisoners who have been convicted of a terrorism or foreign incursion offence, defensive homicide, carjacking or home invasion; and (ii) in relation to information sharing provisions to promote consistency with similar provisions in the Serious Sex Offenders (Detention and Supervision) Act 2009; and (c) to make miscellaneous amendments to the Serious Sex Offenders (Detention and Supervision) Act 2009 in relation to various matters, including the review and renewal of orders, the conditions of orders and the reporting requirements on the use of force by supervision officers, police officers and specified officers. 2 Commencement (1) This Act (except sections 4, 5, 6, 12, 23, 39, 41, 42, 43, 44, 45, 46, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 62 and 64) comes into operation on the day after the day on which this Act receives the Royal Assent. 2
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 1--Preliminary (2) Subject to subsection (3), sections 4, 5, 6, 12, 23, 39, 41, 42, 43, 44, 45, 46, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 62 and 64 come into operation on a day or days to be proclaimed. (3) If a provision referred to in subsection (2) does not come into operation before 1 February 2018, it comes into operation on that day. 3
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 2--Amendment of Corrections Act 1986 Part 2--Amendment of Corrections Act 1986 3 Victim may be given certain copies of orders and information about a prisoner In section 30A(1) of the Corrections Act 1986, in the definition of criminal act of violence, for paragraph (b) substitute-- "(b) any offence listed in Schedule 1 to the Serious Sex Offenders (Detention and Supervision) Act 2009;". 4 New sections 32A and 32B inserted After section 32 of the Corrections Act 1986 insert-- "32A Offences relating to operation or possession of remotely piloted aircraft or helicopter (1) A person (other than a person referred to in subsection (2) or a prescribed person or a person belonging to a prescribed class of persons) must not intentionally or recklessly operate or attempt to operate a remotely piloted aircraft or a helicopter or possess a remotely piloted aircraft-- (a) in any direction in the airspace above a prison at or below 400 feet above ground level; or (b) in or at a prison; or (c) outside but near a prison-- in a manner that threatens or is likely to threaten the good order or security of the prison or any person in the prison, unless the person has a reasonable excuse. Penalty: 2 years imprisonment. 4
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 2--Amendment of Corrections Act 1986 (2) A person does not contravene subsection (1) if the person operates or attempts to operate a remotely piloted aircraft or a helicopter or is in possession of a remotely piloted aircraft-- (a) in accordance with this Act or the regulations; or (b) in accordance with an authorisation given by the Governor under section 32B; or (c) in accordance with a law of the Commonwealth; or (d) for the purposes of law enforcement by a law enforcement agency; or (e) for the purposes of an emergency or recovery from an emergency under the Emergency Management Act 2013. (3) If-- (a) an escort officer; or (b) in the case of a prison in the metropolitan area, an escort officer or a police officer-- believes on reasonable grounds that a person is committing or has committed an offence against subsection (1), the officer may order the person to leave the neighbourhood of the prison. Note The definition of escort officer in section 3(1) means both a prison officer and an escort officer. (4) Before ordering a person to leave in accordance with subsection (3), an escort officer or a police officer must advise the 5
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 2--Amendment of Corrections Act 1986 person of the reason why that person is being ordered to leave. (5) A person must not disobey an order to leave given under subsection (3). Penalty: 5 penalty units. (6) If an escort officer believes on reasonable grounds that a person has committed an offence against subsection (1), the officer may apprehend the person without warrant. (7) An escort officer who has apprehended a person in accordance with subsection (6) must deliver as soon as possible the person into the custody of a police officer to be dealt with according to law. (8) The Crimes Act 1958 (except section 458(1) and 458(2)) applies to the apprehension of a person under this section as if the person were found committing an offence within the meaning of section 458(1)(a) of that Act. (9) A person who is convicted or acquitted of an offence against section 32(1) is not liable to be prosecuted subsequently for an offence against subsection (1) in respect of the same circumstances. (10) Where a provision of this section is inconsistent with a law of the Commonwealth, the law of the Commonwealth prevails to the extent of the inconsistency. (11) For the purposes of subsection (10), a provision of this section is inconsistent with a law of the Commonwealth if it would be inconsistent within the meaning of section 109 of the Constitution of the Commonwealth. 6
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 2--Amendment of Corrections Act 1986 (12) In this section-- law enforcement agency means-- (a) Victoria Police; or (b) the Australian Federal Police; metropolitan area means an area within the radius of 15 kilometres of the intersection of Elizabeth Street and Bourke Street, Melbourne; remotely piloted aircraft includes the controls for the aircraft. 32B Governor may give authorisation The Governor of a prison may, by instrument, authorise a person, or a class of persons, to operate or attempt to operate a remotely piloted aircraft or a helicopter or to possess a remotely piloted aircraft in, at or outside but near the prison.". 5 Search (1) After section 45(2) of the Corrections Act 1986 insert-- "(2A) If the Governor of a prison believes on reasonable grounds that a person is committing or has committed an offence against section 32A(1), the Governor may-- (a) order an escort officer to conduct a search outside but near the prison; and (b) in the case of a prison in the metropolitan area, request a police officer to conduct a search outside but near the prison. Note The definition of escort officer in section 3(1) means both a prison officer and an escort officer. 7
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 2--Amendment of Corrections Act 1986 (2B) If an escort officer believes on reasonable grounds that a person is committing or has committed an offence against section 32A(1), the officer may conduct a search outside but near the prison. (2C) In conducting a search under subsection (2A) or (2B), an escort officer or a police officer may-- (a) search and examine a person who is reasonably believed to have committed the offence including any thing belonging to, in the possession of or under the control of, the person, including the person's vehicle; or (b) search the location at which the offence is reasonably believed to have been committed; or (c) require a person outside but near the prison to submit to a search if the officer reasonably believes that a thing on the person or in the person's possession will afford evidence of the commission of the offence; or (d) search and examine any thing outside but near the prison, including a place where prisoners are, if the officer reasonably believes that the thing will afford evidence of the commission of the offence; or (e) seize any thing in accordance with section 46(1A). (2D) A search under subsection (2A) or (2B) must be conducted in accordance with the regulations.". 8
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 2--Amendment of Corrections Act 1986 (2) In section 45(8) of the Corrections Act 1986, in the definition of metropolitan area-- (a) for "30 kilometres" substitute "15 kilometres"; and (b) after "Bourke Street" insert ", Melbourne". 6 Seizure (1) After section 46(1) of the Corrections Act 1986 insert-- "(1A) In carrying out searches under section 45(2A) or (2B), an escort officer may seize any one or more of the following-- (a) any thing found on a person or in a person's possession; (b) any thing found in, at or outside but near a prison-- which the officer believes on reasonable grounds will afford evidence of the commission of an offence against section 32A(1). Note The definition of escort officer in section 3(1) means both a prison officer and an escort officer.". (2) In section 46(2) of the Corrections Act 1986-- (a) after "prison officer" insert "or an escort officer"; and (b) after "subsection (1)" insert "or (1A)". 9
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 2--Amendment of Corrections Act 1986 7 Reports In section 72(8) of the Corrections Act 1986, for the definition of serious offence substitute-- "serious offence means a sexual offence, a serious violent offence or a terrorism or foreign incursion offence, all within the meaning of section 77(9).". 8 Release on parole of person imprisoned for sexual offence or serious violent offence (1) In the heading to section 74AAB of the Corrections Act 1986, for "sexual offence or serious violent offence" substitute "sexual offence, serious violent offence or terrorism or foreign incursion offence". (2) In section 74AAB(2), (3), (5) and (7) of the Corrections Act 1986, for "sexual offence or a serious violent offence" substitute "sexual offence, a serious violent offence or a terrorism or foreign incursion offence". (3) For section 74AAB(8) of the Corrections Act 1986 substitute-- "(8) In this section, serious violent offence, sexual offence and terrorism or foreign incursion offence have the same meaning as in section 77(9).". 9 Cancellation of parole (1) In section 77(3) of the Corrections Act 1986-- (a) in paragraph (a), for "sexual offence or a serious violent offence" substitute "sexual offence, a serious violent offence or a terrorism or foreign incursion offence"; and 10
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 2--Amendment of Corrections Act 1986 (b) in paragraph (b), for "sexual offence or a violent offence" substitute "sexual offence, a violent offence or a terrorism or foreign incursion offence". (2) In section 77(6) of the Corrections Act 1986-- (a) in paragraph (a), for "sexual offence or a serious violent offence" substitute "sexual offence, a serious violent offence or a terrorism or foreign incursion offence"; and (b) in paragraph (b), for "sexual offence or a violent offence" substitute "sexual offence, a violent offence or a terrorism or foreign incursion offence". (3) In section 77(9) of the Corrections Act 1986-- (a) for paragraph (b) of the definition of serious violent offence substitute-- "(b) an offence against any of the following provisions of the Crimes Act 1958-- (i) section 9AD as in force immediately before its repeal by section 3(3) of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014; (ii) section 75A (armed robbery); (iii) section 77 (aggravated burglary); (iv) section 77A (home invasion); (v) section 77B (aggravated home invasion); (vi) section 79 (carjacking); (vii) section 79A (aggravated carjacking); (viii) section 197A (arson causing death); 11
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 2--Amendment of Corrections Act 1986 (ix) section 325(1) (accessories), in circumstances where the principal offender has committed murder;"; (b) insert the definition of-- "terrorism or foreign incursion offence means an offence listed in Schedule 4;". 10 Definitions In section 104ZX of the Corrections Act 1986-- (a) after the definition of Corrections legislation insert-- "Corrections-related legislation means any of the following-- (a) the Bail Act 1977; (b) the Children, Youth and Families Act 2005; (c) the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; (d) the Disability Act 2006; (e) the Family Violence Protection Act 2008; (f) the Housing Act 1983; (g) the Mental Health Act 2014; (h) the Personal Safety Intervention Orders Act 2010; (i) the Sentencing Act 1991; (j) the Sex Offenders Registration Act 2004; (k) the Working with Children Act 2005; 12
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 2--Amendment of Corrections Act 1986 (l) the Migration Act 1958 of the Commonwealth;"; (b) after paragraph (a) of the definition of official duties insert-- "(ab) the administration of Corrections-related legislation;"; (c) after paragraph (b) of the definition of relevant person insert-- "(ba) the secretary of the Adult Parole Board;"; (d) after paragraph (l) of the definition of relevant person insert-- "(la) any person who delivers services or advice on behalf of the Australian Federal Police;". 11 Authorisation to use or disclose information (1) Section 104ZY(1)(b)(ii) of the Corrections Act 1986 is repealed. (2) In section 104ZY(2) of the Corrections Act 1986-- (a) in paragraph (a)(i), after "a violent offence" insert "or a sexual offence or both"; (b) in paragraph (d), for "disclosure" substitute "use or disclosure"; (c) after paragraph (d) insert-- "(da) if the use or disclosure is to the Human Rights Commissioner; (db) if the use or disclosure is to the Independent Broad-based Anti-corruption Commission established under section 12 of the Independent Broad-based 13
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 2--Amendment of Corrections Act 1986 Anti-corruption Commission Act 2011; (dc) if the use or disclosure is to the Victorian Inspectorate established under section 8 of the Victorian Inspectorate Act 2011; (dd) if the use or disclosure is to the Victorian Legal Services Commissioner appointed under section 51 of the Legal Profession Uniform Law Application Act 2014; (de) if the use or disclosure is to the Mental Health Complaints Commissioner appointed under section 226 of the Mental Health Act 2014; (df) if the use or disclosure is to the Victorian Equal Opportunity and Human Rights Commission continued in existence by section 154 of the Equal Opportunity Act 2010; (dg) if the use or disclosure is to the Information Commissioner appointed under section 6C of the Freedom of Information Act 1982; (dh) if the use or disclosure is to the Health Complaints Commissioner appointed under section 111 of the Health Complaints Act 2016; (di) if the use of disclosure is to any person or body authorised to act on behalf of a person or body listed in paragraph (d), (da), (db), (dc), (dd), (de), (df), (dg) or (dh); (dj) if the use or disclosure is to any person or body prescribed by the regulations;"; 14
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 2--Amendment of Corrections Act 1986 (d) after paragraph (f) insert-- "(fa) if the use or disclosure is in accordance with the Privacy and Data Protection Act 2014;"; (e) for paragraph (ga) substitute-- "(ga) if the use or disclosure is for the purpose of the administration of the Working with Children Act 2005;"; (f) for paragraphs (h) and (i) substitute-- "(h) if the disclosure is to the Department of Health and Human Services and the information is reasonably necessary to ensure the proper care, treatment or housing of a person who is or is likely to be provided with services by or on behalf of that Department; (i) if the disclosure is to the Victorian Electoral Commission and the information is reasonably necessary to establish a prisoner's entitlement to vote in accordance with the Electoral Act 2002;". (3) In section 104ZY(4) of the Corrections Act 1986-- (a) in the definition of correctional services authority, for "Act." substitute "Act;"; (b) after the definition of correctional services authority insert-- "sexual offence means an offence listed in Schedule 1 to the Serious Sex Offenders (Detention and Supervision) Act 2009.". 15
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 2--Amendment of Corrections Act 1986 12 Regulations After section 112(1)(ac) of the Corrections Act 1986 insert-- "(ad) the exemption of persons or classes of persons from the operation of section 32A(1);". 13 New section 128 inserted After section 127 of the Corrections Act 1986 insert-- "128 Transitional--Corrections Legislation Miscellaneous Amendment Act 2017 Section 74AAB as amended by section 8 of the Corrections Legislation Miscellaneous Amendment Act 2017 applies to a prisoner sentenced to imprisonment for a terrorism or foreign incursion offence, whether before or after the commencement of section 8 of that Act.". 14 New Schedule 4 inserted After Schedule 3 to the Corrections Act 1986 insert-- "Schedule 4--Terrorism or foreign incursion offences Section 77(9) 1. An offence against section 4B of the Terrorism (Community Protection) Act 2003. 2. Any other offence against a law of Victoria where the prisoner also committed, and was sentenced to imprisonment for, an offence against any of the following sections of the Criminal Code Act 1995 of the Commonwealth-- (a) section 101.1 (engages in a terrorist act); 16
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 2--Amendment of Corrections Act 1986 (b) section 101.2(1) (intentionally providing or receiving training connected with a terrorist act); (c) section 101.2(2) (recklessly providing or receiving training connected with terrorist act); (d) section 101.4(1) (intentionally possessing a thing connected with terrorist acts); (e) section 101.4(2) (recklessly possessing a thing connected with terrorist acts); (f) section 101.5(1) (intentionally collecting or making documents likely to facilitate terrorist acts); (g) section 101.5(2) (recklessly collecting or making documents likely to facilitate terrorist acts); (h) section 101.6(1) (other acts done in preparation for, or planning, terrorist acts); (i) section 102.2(1) (intentionally directing the activities of a terrorist organisation); (j) section 102.2(2) (recklessly directing the activities of a terrorist organisation); (k) section 102.3(1) (membership of a terrorist organisation); (l) section 102.4(1) (intentionally recruiting for a terrorist organisation); (m) section 102.4(2) (recklessly recruiting for a terrorist organisation); (n) section 102.5(1) (recklessly provides, receives or participates in training with terrorist organisation); 17
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 2--Amendment of Corrections Act 1986 (o) section 102.5(2) (intentionally provides, receives or participates in training with terrorist organisation prescribed by regulations); (p) section 102.6(1) (intentionally getting funds to, from or for a terrorist organisation); (q) section 102.6(2) (recklessly getting funds to, from or for a terrorist organisation); (r) section 102.7(1) (intentionally providing support to a terrorist organisation); (s) section 102.7(2) (recklessly providing support to a terrorist organisation); (t) section 102.8 (intentionally associating with terrorist organisation prescribed by regulations); (u) section 103.1 (recklessly financing terrorism); (v) section 103.2 (recklessly financing a terrorist); (w) section 119.1(1) (entering foreign countries with the intention of engaging in hostile activities); (x) section 119.1(2) (engaging in a hostile activity in a foreign country); (y) section 119.2(1) (entering, or remaining in, declared areas); (z) section 119.4(1) (preparatory acts for the purpose of engaging in a hostile activity in a foreign country); (za) section 119.4(2) (accumulating weapons for the purpose of engaging in a hostile activity in a foreign country); 18
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 2--Amendment of Corrections Act 1986 (zb) section 119.4(3) (providing or participating in training for the purpose of engaging in a hostile activity in a foreign country); (zc) section 119.4(4) (receiving training for the purpose of engaging in a hostile activity in a foreign country); (zd) section 119.4(5) (giving or receiving goods and services to promote the commission of an offence); (ze) section 119.5(1) (allowing use of buildings to commit an offence); (zf) section 119.5(2) (allowing use of vessels or aircraft to commit an offence); (zg) section 119.6 (recruiting persons to join organisations engaged in hostile activities against foreign governments); (zh) section 119.7(1) (recruiting persons to serve in or with foreign armed forces); (zi) section 119.7(2) (publishing recruitment advertisements); (zj) section 119.7(3) (publishing recruitment or travel advertisements); (zk) section 119.7(4) (facilitating recruitment).". 19
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 15 Definitions (1) In section 3 of the Serious Sex Offenders (Detention and Supervision) Act 2009, in paragraph (c) of the definition of custodial sentence, for "prison gaol" substitute "police gaol". (2) In section 3 of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert the following definition-- "immigration detention has the same meaning as in section 5 of the Migration Act 1958 of the Commonwealth;". 16 Who is an eligible offender? After section 4(4) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(4A) A person is an eligible offender in relation to an application for a renewal of a supervision order under section 28(1) if the person is subject to a supervision order or an interim supervision order at the time at which the application is made. (4B) A person is an eligible offender in relation to an application for a renewal of a detention order under section 45(1) if the person is subject to a detention order or an interim detention order at the time at which the application is made.". 17 Secretary may apply for a supervision order (1) Section 7(3)(ab) of the Serious Sex Offenders (Detention and Supervision) Act 2009 is repealed. 20
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 (2) In section 7(3)(b) of the Serious Sex Offenders (Detention and Supervision) Act 2009, after "offence" insert ", irrespective of whether or not the Magistrates' Court was constituted by the Chief Magistrate or another magistrate". 18 When may a court make a supervision order? For section 9(1) of the Serious Sex Offenders (Detention and Supervision) Act 2009 substitute-- "(1) The court may make a supervision order in respect of an eligible offender only if the court is satisfied that-- (a) the offender poses an unacceptable risk of committing a relevant offence if a supervision order is not made and the offender is in the community; or (b) in the case of an offender who is serving a custodial sentence or is in custody on remand, the offender will pose an unacceptable risk of committing a relevant offence if a supervision order is not made and the offender is in the community on the offender's release from custody on remand or at the end of the custodial sentence, whichever is earlier.". 19 Commencement of supervision order (1) After section 11(1) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(1A) If at the time of the making of a supervision order the offender is remanded in custody, the order commences on the day on which the offender is released from custody on remand.". 21
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 (2) In section 11(2) of the Serious Sex Offenders (Detention and Supervision) Act 2009, after "is not" insert "in custody on remand or". (3) After section 11(2) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(3) Despite subsection (2), if at the time of the making of a supervision order the offender is in immigration detention, the order commences on the day on which the offender is released from immigration detention.". 20 Period of supervision order After section 12(4) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(4A) If an offender who is subject to a supervision order is taken into immigration detention after the commencement of the order-- (a) the time spent in immigration detention is not to be taken into account in calculating the remaining period of the detention order; and (b) the offender is not subject to the conditions of the order while the offender is in immigration detention; and (c) the offender again becomes subject to the supervision order and the conditions of the supervision order on the offender's release from immigration detention.". 21 Core conditions of supervision order In section 16(2)(ac) and (g) of the Serious Sex Offenders (Detention and Supervision) Act 2009, after "requires" insert ", or the Adult Parole Board directs,". 22
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 22 Suggested conditions (1) In section 17(1A)(b) of the Serious Sex Offenders (Detention and Supervision) Act 2009, after "Board" insert "which the offender must ensure remains operational (including being charged) at all times". (2) At the foot of section 17(1A) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "Note See also section 20 regarding conditions authorising the Adult Parole Board to give directions in relation to the operation of any condition.". 23 Other discretionary conditions Insert the following example after example 4 at the foot of section 19 of the Serious Sex Offenders (Detention and Supervision) Act 2009-- "5 A condition requiring the offender to comply with the directions of the Adult Parole Board in relation to computers and other devices (as defined in section 158H(5)) in the possession or control of the offender for the purposes of auditing by a supervision officer, specified officer or police officer.". 24 Court may declare a condition to be a restrictive condition After section 24A(4) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(5) Whether or not the court makes a declaration under subsection (1), the court must make any variation or addition to the core provisions of the supervision order that is necessary to ensure the core conditions accord with section 16 if amendments to section 16 which amend the core conditions 23
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 to which the supervision order is subject have come into operation since the supervision order was made or last renewed or reviewed.". 25 Court must first be satisfied that there is an unacceptable risk For section 35(1) of the Serious Sex Offenders (Detention and Supervision) Act 2009 substitute-- "(1) On an application under section 33, the Supreme Court may make an order in respect of an eligible offender only if the Court is satisfied that-- (a) the offender poses an unacceptable risk of committing a relevant offence if a detention order or supervision order is not made and the offender is in the community; or (b) in the case of an offender who is serving a custodial sentence or is in custody on remand, the offender will pose an unacceptable risk of committing a relevant offence if a detention order or supervision order is not made and the offender is in the community on the offender's release from custody on remand or at the end of the custodial sentence, whichever is earlier.". 26 Commencement of detention order (1) After section 39(1) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(1A) If at the time of the making of a detention order the offender is remanded in custody, the order commences on the day on which 24
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 the offender is released from custody on remand.". (2) In section 39(2) of the Serious Sex Offenders (Detention and Supervision) Act 2009, after "is not" insert "in custody on remand or". (3) After section 39(2) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(3) Despite subsection (2), if at the time of the making of a detention order the offender is in immigration detention, the order commences on the day on which the offender is released from immigration detention.". 27 Period of detention order After section 40(3) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(4) If an offender who is subject to a detention order is taken into immigration detention after the commencement of the order-- (a) the time spent in immigration detention is not to be taken into account in calculating the remaining period of the order; and (b) the offender again becomes subject to the detention order on the offender's release from immigration detention.". 28 Determination of application to renew detention order (1) In section 45A(1)(c) of the Serious Sex Offenders (Detention and Supervision) Act 2009, for "order." substitute "order; or". 25
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 (2) After section 45A(1)(c) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(d) make a supervision order, an interim supervision order or an interim detention order. Note See also section 36(4), (5) and (6).". 29 When may a court make an interim supervision order? (1) For section 53(a)(ii) of the Serious Sex Offenders (Detention and Supervision) Act 2009 substitute-- "(ii) in the case of an application for a supervision order, the offender is no longer remanded in custody or serving a custodial sentence as required by section 4 or will no longer be remanded in custody or serving that sentence when that application is determined; and". (2) In section 53(c)(i) of the Serious Sex Offenders (Detention and Supervision) Act 2009, after "before" insert "the offender is released from custody on remand or". 30 When may a court make an interim detention order? (1) For section 54(1)(a)(ii) of the Serious Sex Offenders (Detention and Supervision) Act 2009 substitute-- "(ii) in the case of an application for a supervision order, the offender is no longer remanded in custody or serving a custodial sentence as required by section 4 or will no longer be remanded in custody or serving that sentence when that application is determined; and". 26
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 (2) In section 54(1)(c)(i) of the Serious Sex Offenders (Detention and Supervision) Act 2009, after "before" insert "the offender is released from custody on remand or". (3) In section 54(2)(d)(i) of the Serious Sex Offenders (Detention and Supervision) Act 2009, after "before" insert "the offender is released from custody on remand or". 31 Commencement of interim order (1) After section 56(1)(a) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(ab) if at the time of the making of the order the offender is remanded in custody, on the day on which the offender is released from custody on remand; or" (2) In section 56(1)(b) of the Serious Sex Offenders (Detention and Supervision) Act 2009, after "is not" insert "in custody on remand or". (3) After section 56(1) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(1A) Despite subsection (1)(b), if at the time of the making of an interim order the offender is in immigration detention, the order commences on the day on which the offender is released from immigration detention.". 32 Period of interim order (1) In section 57(1) of the Serious Sex Offenders (Detention and Supervision) Act 2009, for "subsection (2)" substitute "subsections (2) and (3)". 27
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 (2) After section 57(2) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(3) If an offender who is subject to an interim order is taken into immigration detention after the commencement of the order-- (a) the time spent in immigration detention is not to be taken into account in calculating the remaining period of the order; and (b) the offender again becomes subject to the interim order on the offender's release from immigration detention.". 33 Provisions affecting interim supervision order In section 58A of the Serious Sex Offenders (Detention and Supervision) Act 2009, after "(4)" insert ", (4A)". 34 Leave for review In section 68(1) of the Serious Sex Offenders (Detention and Supervision) Act 2009, for "Any" substitute "At any time (including time during which the offender is serving a custodial sentence or on remand), any". 35 Decision on supervision order--general For section 73(1) of the Serious Sex Offenders (Detention and Supervision) Act 2009 substitute-- "(1) Subject to subsection (3), on a review of a supervision order, the court must revoke the supervision order unless it is satisfied that-- (a) the offender still poses an unacceptable risk of committing a relevant offence if a supervision order is not in effect and the offender is in the community; or 28
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 (b) in the case of an offender who is serving a custodial sentence or is in custody on remand, the offender will pose an unacceptable risk of committing a relevant offence if a supervision order is not in effect and the offender is in the community on the offender's release from custody on remand or at the end of the custodial sentence, whichever is earlier.". 36 Application for review of detention order For section 74(1) of the Serious Sex Offenders (Detention and Supervision) Act 2009 substitute-- "(1) On a review of a detention order, the Supreme Court must revoke the order unless it is satisfied that-- (a) the offender still poses an unacceptable risk of committing a relevant offence if a detention order is not in effect and the offender is in the community; or (b) in the case of an offender who is serving a custodial sentence or is in custody on remand, the offender will pose an unacceptable risk of committing a relevant offence if a detention order is not in effect and the offender is in the community on the offender's release from custody on remand or at the end of the custodial sentence, whichever is earlier.". 29
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 37 Application for review of condition of supervision order In section 77(3)(a) of the Serious Sex Offenders (Detention and Supervision) Act 2009, for "and" substitute "or". 38 New section 78A inserted After section 78 of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "78A Leave not required in certain circumstances for review of core conditions (1) Despite anything to the contrary in section 68, an application under section 68(1) for review of a supervision order may be made to the court without obtaining leave under that section if the application for review is on the ground that amendments to section 16 which amend the core conditions to which the supervision order is subject have come into operation since the supervision order was made or last renewed or reviewed. (2) On an application under subsection (1)-- (a) the court must make any variation or addition to the core provisions of a supervision order that are necessary to ensure the core conditions accord with section 16; and (b) the court may also deal with any other matter that could be the subject of an application under section 68 if satisfied that-- (i) there are new facts or circumstances which would justify the review of the order; or 30
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 (ii) it would be in the interests of justice, having regard to the purposes of the order and the manner and effect of its implementation, to review the order. Note See also sections 73(9A) and 78(3A).". 39 Execution of arrest warrant After section 92(4) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(5) A person who uses force to execute the warrant under this section must report the fact to the Chief Commissioner of Police as soon as possible. (6) The Chief Commissioner of Police must report to the Secretary as soon as possible any use of force by a person that has been reported to the Chief Commissioner of Police under this section.". 40 Appeals by offenders In section 96(ca) of the Serious Sex Offenders (Detention and Supervision) Act 2009, after "supervision order" insert "or interim supervision order". 41 Visitors to give certain information After section 141(5) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(5A) The officer in charge of a residential facility must report to the Commissioner as soon as possible any use of force by a supervision officer or specified officer that has been reported to the officer in charge under this section. 31
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 (5B) The Commissioner must report to the Secretary as soon as possible any use of force by a supervision officer or specified officer that has been reported to the Commissioner under this section.". 42 New sections 141A and 141B inserted After section 141 of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "141A Offences relating to operation or possession of remotely piloted aircraft or helicopter (1) A person (other than a person referred to in subsection (2) or a prescribed person or a person belonging to a prescribed class of persons) must not intentionally or recklessly operate or attempt to operate a remotely piloted aircraft or a helicopter or possess a remotely piloted aircraft-- (a) in any direction in the airspace above a residential facility at or below 400 feet above ground level; or (b) in or at a residential facility; or (c) outside but near a residential facility-- in a manner that threatens or is likely to threaten the good order or security of the facility or any person in the facility, unless the person has a reasonable excuse. Penalty: 2 years imprisonment. (2) A person does not contravene subsection (1) if the person operates or attempts to operate a remotely piloted aircraft or a helicopter or is in possession of a remotely piloted aircraft-- 32
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 (a) in accordance with this Act or the regulations; or (b) in accordance with an authorisation given by the officer in charge under section 141B; or (c) in accordance with a law of the Commonwealth; or (d) for the purposes of law enforcement by a law enforcement agency; or (e) for the purposes of an emergency or recovery from an emergency under the Emergency Management Act 2013. (3) If a supervision officer or a specified officer believes on reasonable grounds that a person is committing or has committed an offence against subsection (1), the officer may order the person to leave the neighbourhood of the residential facility. (4) Before ordering a person to leave in accordance with subsection (3), a supervision officer or a specified officer must advise the person of the reason why that person is being ordered to leave. (5) A person must not fail to comply with an order to leave given under subsection (3). Penalty: 5 penalty units. (6) If a supervision officer or a specified officer believes on reasonable grounds that a person has committed an offence against subsection (1), the officer may apprehend the person without warrant. (7) A supervision officer or a specified officer who has apprehended a person in accordance with subsection (6) must deliver as soon as possible the person into the custody of a 33
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 police officer to be dealt with according to law. (8) The Crimes Act 1958 (except section 458(1) and 458(2)) applies to the apprehension of a person under this section as if the person were found committing an offence within the meaning of section 458(1)(a) of that Act. (9) Where a provision of this section is inconsistent with a law of the Commonwealth, the law of the Commonwealth prevails to the extent of the inconsistency. (10) For the purposes of subsection (9), a provision of this section is inconsistent with a law of the Commonwealth if it would be inconsistent within the meaning of section 109 of the Constitution of the Commonwealth. (11) In this section-- law enforcement agency means-- (a) Victoria Police; or (b) the Australian Federal Police; remotely piloted aircraft includes the controls for the aircraft. 141B Officer in charge may give authorisation The officer in charge of a residential facility may, by instrument, authorise a person, or a class of persons, to operate or attempt to operate a remotely piloted aircraft or a helicopter or to possess a remotely piloted aircraft in, at or outside but near the residential facility.". 34
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 43 Search (1) After section 142(2) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(2A) The officer in charge of a residential facility may order a supervision officer or a specified officer to conduct a search outside but near the residential facility, if the officer in charge believes on reasonable grounds that a person is committing or has committed an offence against section 141A(1). (2B) A supervision officer or a specified officer may conduct a search outside but near a residential facility if the officer believes on reasonable grounds that a person is committing or has committed an offence against section 141A(1). (2C) In conducting a search under subsection (2A) or (2B), a supervision officer or a specified officer may-- (a) search and examine a person who is reasonably believed to have committed the offence including any thing belonging to, in the possession of or under the control of, the person, including the person's vehicle; or (b) search the location at which the offence is reasonably believed to have been committed; or (c) require a person outside but near the residential facility to submit to a search if the officer reasonably believes that a thing on the person or in the person's possession will afford evidence of the commission of the offence; or 35
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 (d) search and examine any thing outside but near the residential facility, including a place where offenders are, if the officer reasonably believes that the thing will afford evidence of the commission of the offence; or (e) seize any thing in accordance with section 143(1A).". (2) In section 142(4) of the Serious Sex Offenders (Detention and Supervision) Act 2009, for "subsection (2)" substitute "subsection (2), (2A) or (2B)". (3) After section 142(7B) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(7C) A supervision officer or specified officer who uses force to compel a person to leave a residential facility or to carry out a search under this section must report the fact to the officer in charge of the residential facility as soon as possible. (7D) The officer in charge of the residential facility must report to the Commissioner as soon as possible any use of force by a supervision officer or specified officer that has been reported to the officer in charge under this section. (7E) The Commissioner must report to the Secretary as soon as possible any use of force by a supervision officer or specified officer that has been reported to the Commissioner under this section. 36
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 (7F) A police officer who uses force to compel a person to leave a residential facility or to carry out a search under this section must report the fact as soon as possible to the Chief Commissioner of Police. (7G) The Chief Commissioner of Police must report to the Secretary as soon as possible any use of force by a police officer that has been reported to the Chief Commissioner of Police under this section.". 44 Seizure and examination (1) After section 143(1) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(1A) In carrying out searches under section 142(2A) or (2B), a supervision officer or a specified officer may seize-- (a) any thing found on a person or in a person's possession; or (b) any thing found in, at or outside but near a residential facility-- which the officer believes on reasonable grounds will afford evidence of the commission of an offence against section 141A(1).". (2) After section 143(5) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(6) A supervision officer or specified officer who uses force to carry out a seizure under this section must report as soon as possible the fact to the officer in charge of the residential facility. 37
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 (7) The officer in charge of the residential facility must report to the Commissioner as soon as possible any use of force by a supervision officer or specified officer that has been reported to the officer in charge under this section. (8) The Commissioner must report to the Secretary as soon as possible any use of force by a supervision officer or specified officer that has been reported to the Commissioner under this section. (9) A police officer who uses force to carry out a seizure under this section must report as soon as possible the fact to the Chief Commissioner of Police. (10) The Chief Commissioner of Police must report to the Secretary as soon as possible any use of force by a police officer that has been reported to the Chief Commissioner of Police under this section.". 45 Register of seized things In section 144(1) of the Serious Sex Offenders (Detention and Supervision) Act 2009, after "residential facility" insert "or outside but near a residential facility". 46 Officers may use force to enforce instructions in certain circumstances After section 146(3) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(4) The Commissioner must report to the Secretary as soon as possible any use of force or application of an authorised instrument of restraint by a supervision officer or specified officer that has been 38
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 reported to the Commissioner under this section.". 47 Officer may give instructions After section 151(a) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(ab) compliance with any conditions of the supervision order; or". 48 Search After section 152(4B) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(4C) A community corrections officer or specified officer who uses force to carry out a search under this section must report as soon as possible the fact to the Commissioner. (4D) The Commissioner must report to the Secretary as soon as possible any use of force by a community corrections officer or specified officer that has been reported to the Commissioner under this section. (4E) A police officer who uses force to carry out a search under this section must report as soon as possible the fact to the Chief Commissioner of Police. (4F) The Chief Commissioner of Police must report to the Secretary as soon as possible any use of force by a police officer that has been reported to the Chief Commissioner of Police under this section.". 39
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 49 Seizure and examination After section 153(5) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(6) A community corrections officer or specified officer who uses force to carry out a seizure under this section must report the fact to the Commissioner as soon as possible. (7) The Commissioner must report to the Secretary as soon as possible any use of force by a community corrections officer or specified officer that has been reported to the Commissioner under this section. (8) A police officer who uses force to carry out a seizure under this section must report the fact to the Chief Commissioner of Police as soon as possible. (9) The Chief Commissioner of Police must report to the Secretary as soon as possible any use of force by a police officer that has been reported to the Chief Commissioner of Police under this section.". 50 Powers of entry by police officer to monitor compliance After section 158C(2) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(3) A police officer who uses force to enter premises under subsection (2) must report the fact to the Chief Commissioner of Police as soon as possible. (4) The Chief Commissioner of Police must report to the Secretary as soon as possible any use of force by a police officer that has 40
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 been reported to the Chief Commissioner of Police under this section.". 51 Power to seize and examine seized items After section 158DB(5) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(6) A police officer who uses force to carry out a seizure under this section must report the fact to the Chief Commissioner of Police as soon as possible. (7) The Chief Commissioner of Police must report to the Secretary as soon as possible any use of force by a police officer that has been reported to the Chief Commissioner of Police under this section.". 52 New Division 7A inserted into Part 10 After section 158E of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "Division 7A--Auditing of offender's computer and other devices 158EA Application of Division This Division applies if a supervision order contains a condition requiring an offender to comply with the directions of the Adult Parole Board in relation to computers and other devices in the possession or control of the offender for the purposes of auditing by an officer for any images, programs or other material that may-- (a) constitute a breach of the conditions of the supervision order; or (b) increase the risk that the offender may commit an offence. 41
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 158EB Definitions In this Division-- device has the same meaning as in section 158H(5); officer means a supervision officer, specified officer or police officer. 158EC Offender to comply with direction An offender must comply with a direction of the Adult Parole Board to produce to an officer a computer or device in the offender's possession or under the offender's control. 158ED Search if offender fails to comply (1) If an offender fails to comply with a direction under 158EC, an officer may enter any part of the location at which the offender resides and-- (a) search that part of the location and any thing (including any vehicle) belonging to or in the possession of, or under the control of, the offender at the location; and (b) search and examine the offender at the location. (2) For the purposes of subsection (1), a search of an offender means either or both a garment search or a pat-down search. (3) To the extent practical, a pat-down search must be conducted by a person of the same sex as the offender being searched. (4) If necessary, an officer may use reasonable force to carry out a search under this section. 42
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 (5) A search under this section may continue only for as long as necessary to achieve the purpose of the search. (6) A supervision officer or specified officer who uses force to carry out a search under this section must report the fact to the Commissioner as soon as possible. (7) The Commissioner must report to the Secretary as soon as possible any use of force by a supervision officer or specified officer that has been reported to the Commissioner under this section. (8) A police officer who uses force to carry out a search under this section must report the fact to the Chief Commissioner of Police as soon as possible. (9) The Chief Commissioner of Police must report to the Secretary as soon as possible any use of force by a police officer that has been reported to the Chief Commissioner of Police under this section. (10) In this section-- garment search means a search of any article of clothing worn by a person or in the person's possession where the article of clothing is touched or removed from the person's body; pat-down search means a search of a person where the person's clothed body is touched. 158EE Seizure and examination if offender fails to comply (1) In carrying out a search under section 158ED, an officer may seize or operate any computer or other device for 43
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 the purpose of auditing the computer or other device for any images, programs or other material that may-- (a) constitute a breach of the conditions of the supervision order; or (b) increase the risk that the offender may commit an offence. (2) An officer exercising a power under this section may direct one or more of the following persons accompanying the officer to exercise those powers subject to the officer's direction-- (a) a Victoria Police employee within the meaning of the Victoria Police Act 2013; (b) any person who delivers services or advice on behalf of Victoria Police. (3) If necessary, an officer may use reasonable force to carry out a seizure under this section. (4) A supervision officer or specified officer who uses force to carry out a seizure under this section must report the fact to the Commissioner as soon as possible. (5) The Commissioner must report to the Secretary as soon as possible any use of force by a supervision officer or specified officer that has been reported to the Commissioner under this section. (6) A police officer who uses force to carry out a seizure under this section must report the fact to the Chief Commissioner of Police as soon as possible. 44
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 (7) The Chief Commissioner of Police must report to the Secretary as soon as possible any use of force by a police officer that has been reported to the Chief Commissioner of Police under this section. 158EF Register of things seized (1) The Commissioner must establish and maintain a register of things seized under this Division. (2) The register must contain for each thing seized-- (a) a description of the thing; and (b) the name of the person from whom the thing was seized; and (c) the name and address of the owner of the thing (if known); and (d) the time and place of the seizure; and (e) the name and signature of the officer who seized the thing. (3) As soon as practicable after seizing a thing under section 158EE, an officer must inform the Commissioner of the seizure and record the details of the seizure in the register. (4) This section does not apply to a thing seized by a police officer under this Division. Note See section 158I for the register of things seized by police officers.". 45
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 53 Specified officers After section 158F(3) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(4) A specified officer who uses force to compel an offender to obey a direction under this section must report the fact as soon as possible-- (a) if the use of force occurs at a residential facility, to the officer in charge of the facility; or (b) if the use of force occurs other than at a residential facility, to the Commissioner. (5) A specified officer who applies an authorised instrument of restraint to an offender under this section must report the fact as soon as possible-- (a) if the application occurs at a residential facility, to the officer in charge of the facility; or (b) if the application occurs other than at a residential facility, to the Commissioner. (6) The officer in charge of the residential facility must report to the Commissioner as soon as possible any use of force or application of an authorised instrument of restraint by a specified officer that has been reported to the officer in charge under this section. (7) The Commissioner must report to the Secretary as soon as possible any use of force or application of an authorised instrument of restraint by a specified officer 46
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 that has been reported to the Commissioner under this section.". 54 Warning that search or seizure is to occur and that reasonable force may be used In section 158G of the Serious Sex Offenders (Detention and Supervision) Act 2009-- (a) after "158DA" insert ", 158ED"; (b) after "158DB" insert ", 158EE". 55 Officer may direct offender to provide assistance-- computers and other devices (1) In section 158H(1)(b) of the Serious Sex Offenders (Detention and Supervision) Act 2009, for "section 143." substitute "section 143; or". (2) After section 158H(1)(b) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(c) an officer (within the meaning of section 158EB) or a person referred to in section 158EE(2), in the case of a search under section 158ED or a seizure under section 158EE.". (3) In section 158H(2)(c) of the Serious Sex Offenders (Detention and Supervision) Act 2009, for "paragraph (b)." substitute "paragraph (b); or". (4) After section 158H(2)(c) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(d) delete data held in the computer or other device.". 47
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 (5) In section 158H(5) of the Serious Sex Offenders (Detention and Supervision) Act 2009, in the definition of device, after "smartphone" insert ", any other type of telephone capable of storing data". 56 Retention by Chief Commissioner of Police or Commissioner of seized things (1) In section 158L(1) of the Serious Sex Offenders (Detention and Supervision) Act 2009, after "Division 7" insert "or 7A". (2) In section 158L(2) of the Serious Sex Offenders (Detention and Supervision) Act 2009, for "(other than a thing seized by a police officer under that section)" substitute "or Division 7A (other than a thing seized by a police officer under that section or Division)". 57 Chief Commissioner of Police or Commissioner may apply to Magistrates' Court for disposal or destruction order In section 158P(2)(b) of the Serious Sex Offenders (Detention and Supervision) Act 2009, for "or Police" substitute "of Police". 58 Detention power After section 165(1) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(1A) A police officer who uses force to apprehend and detain the offender under this Division must report the fact to the Chief Commissioner of Police as soon as possible. (1B) The Chief Commissioner of Police must report to the Secretary as soon as possible any use of force by a police officer that has been reported to the Chief Commissioner of Police under this section.". 48
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 59 Search of person After section 166(3) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(4) If necessary, a police officer may use reasonable force to carry out a search under this section. (5) A police officer who uses force to carry out a search under this section must report the fact to the Chief Commissioner of Police as soon as possible. (6) The Chief Commissioner of Police must report to the Secretary as soon as possible any use of force by a police officer that has been reported to the Chief Commissioner of Police under this section.". 60 Powers of entry and search by police officer to arrest offender After section 171A(11) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(11A) A police officer who under this section uses force to enter premises or to carry out a search or a seizure must report the fact to the Chief Commissioner of Police as soon as possible. (11B) The Chief Commissioner of Police must report to the Secretary as soon as possible any use of force by a police officer that has been reported to the Chief Commissioner of Police under this section.". 49
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 61 Sharing of information In section 189 of the Serious Sex Offenders (Detention and Supervision) Act 2009-- (a) in subsection (1)(d)(i), after "a violent offence" insert "or a sexual offence or both"; (b) in subsection (4)-- (i) in paragraph (zc) of the definition of relevant person, for "Victoria." substitute "Victoria;"; (ii) after the definition of relevant person insert-- "sexual offence means an offence listed in Schedule 1.". 62 Regulations After section 198(2) of the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "(2A) Without limiting subsection (1), the regulations may provide for the exemption of persons or classes of persons from the operation of section 141A(1).". 63 Schedule 1--Relevant offences (1) After item 35B of Schedule 1 to the Serious Sex Offenders (Detention and Supervision) Act 2009 insert-- "35C An offence against section 44(3) of the Crimes Act 1958 (incest by sexual penetration of a parent, step-parent or lineal ancestor) as in force immediately before the commencement of section 16 of the Crimes Amendment (Sexual Offences) Act 2016, if the offender is convicted and sentenced to imprisonment for that offence before that commencement. 50
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 3--Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 35D An offence against section 44(4) of the Crimes Act 1958 (incest by sexual penetration of a sibling or half-sibling) as in force immediately before the commencement of section 16 of the Crimes Amendment (Sexual Offences) Act 2016, if the offender is convicted and sentenced to imprisonment for that offence before that commencement.". (2) In item 38 of Schedule 1 to the Serious Sex Offenders (Detention and Supervision) Act 2009, for "270.5 270.6" substitute "270.5, 270.6". 51
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 4--Amendment of Children, Youth and Families Act 2005 Part 4--Amendment of Children, Youth and Families Act 2005 64 New Division 3AA of Part 5.8 inserted After Division 3 of Part 5.8 of the Children, Youth and Families Act 2005 insert-- "Division 3AA--Offences relating to operation or possession of remotely piloted aircraft or helicopter 488DA Definitions In this Division-- youth justice facility means a remand centre, a youth residential centre or a youth justice centre (other than a youth justice unit). 488DB Offences relating to operation or possession of remotely piloted aircraft or helicopter (1) A person (other than a person referred to in subsection (2) or a prescribed person or a person belonging to a prescribed class of persons) must not intentionally or recklessly operate or attempt to operate a remotely piloted aircraft or a helicopter or possess a remotely piloted aircraft-- (a) in any direction in the airspace above a youth justice facility at or below 400 feet above ground level; or (b) in or at a youth justice facility; or 52
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 4--Amendment of Children, Youth and Families Act 2005 (c) outside but near a youth justice facility-- in a manner that threatens or is likely to threaten the good order or security of the youth justice facility or any person in the youth justice facility, unless the person has a reasonable excuse. Penalty: 2 years imprisonment. (2) A person does not contravene subsection (1) if the person operates or attempts to operate a remotely piloted aircraft or a helicopter or is in possession of a remotely piloted aircraft-- (a) in accordance with this Act or the regulations; or (b) in accordance with an authorisation given by the officer in charge under section 488DC; or (c) in accordance with a law of the Commonwealth; or (d) for the purposes of law enforcement by a law enforcement agency; or (e) for the purposes of an emergency or recovery from an emergency under the Emergency Management Act 2013. (3) If an officer believes on reasonable grounds that a person is committing or has committed an offence against subsection (1), the officer may order the person to leave the neighbourhood of the youth justice facility. (4) Before ordering a person to leave in accordance with subsection (3), an officer must advise the person of the reason why that person is being ordered to leave. 53
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 4--Amendment of Children, Youth and Families Act 2005 (5) A person must not disobey an order to leave given under subsection (3). Penalty: 5 penalty units. (6) If an officer believes on reasonable grounds that a person has committed an offence against subsection (1), the officer may apprehend the person without warrant. (7) An officer who has apprehended a person in accordance with subsection (6) must deliver as soon as possible the person into the custody of a police officer to be dealt with according to law. (8) The Crimes Act 1958 (except section 458(1) and 458(2)) applies to the apprehension of a person under this section as if the person were found committing an offence within the meaning of section 458(1)(a) of that Act. (9) Where a provision of this section is inconsistent with a law of the Commonwealth, the law of the Commonwealth prevails to the extent of the inconsistency. (10) For the purposes of subsection (9), a provision of this section is inconsistent with a law of the Commonwealth if it would be inconsistent within the meaning of section 109 of the Constitution of the Commonwealth. (11) In this section-- law enforcement agency means-- (a) Victoria Police; or (b) the Australian Federal Police; remotely piloted aircraft includes the controls for the aircraft. 54
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 4--Amendment of Children, Youth and Families Act 2005 488DC Officer in charge may give authorisation The officer in charge may, by instrument, authorise a person, or a class of persons, to operate or attempt to operate a remotely piloted aircraft or a helicopter or to possess a remotely piloted aircraft in, at or outside but near the youth justice facility. 488DD Search (1) If the officer in charge believes on reasonable grounds that a person is committing or has committed an offence against section 488DB(1), the officer in charge may order an officer to conduct a search outside but near the youth justice facility. (2) If an officer believes on reasonable grounds that a person is committing or has committed an offence against section 488DB(1), the officer may conduct a search outside but near the youth justice facility. (3) In conducting a search under subsection (1) or (2), an officer may-- (a) search and examine a person who is reasonably believed to have committed the offence including any thing belonging to, in the possession of or under the control of, the person, including the person's vehicle; or (b) search the location at which the offence is reasonably believed to have been committed; or 55
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 4--Amendment of Children, Youth and Families Act 2005 (c) require a person outside but near the youth justice facility to submit to a search if the officer reasonably believes that a thing on the person or in the person's possession will afford evidence of the commission of the offence; or (d) search and examine any thing outside but near the youth justice facility, including a place where detainees are, if the officer reasonably believes that the thing will afford evidence of the commission of the offence; or (e) seize any thing in accordance with section 488DE. (4) Before carrying out a search under subsection (1) or (2), the officer who is to conduct the search must-- (a) inform the person of the officer's authority to conduct the search; and (b) inform the person that the person may refuse the search. (5) The officer in charge may at any time make an order terminating a search under subsection (1) or (2). (6) A search under subsection (1) or (2) must be conducted in accordance with the regulations. 488DE Seizure (1) In carrying out searches under section 488DD(1) or (2), an officer may seize any one or more of the following-- (a) any thing found on a person or in a person's possession; 56
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 4--Amendment of Children, Youth and Families Act 2005 (b) any thing found in, at or outside but near a youth justice facility-- which the officer believes on reasonable grounds will afford evidence of the commission of an offence against section 488DB(1). (2) An officer who seizes any thing under subsection (1) must inform the officer in charge. (3) The officer in charge must deal, in accordance with sections 488F, 488G, 488GA, 488GB, 488GC and 488GD, with any thing seized under this section.". 57
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Part 5--Repeal of amending Act Part 5--Repeal of amending Act 65 Repeal of amending Act This Act is repealed on 1 February 2019. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ 58
Corrections Legislation Miscellaneous Amendment Act 2017 No. of 2017 Endnotes Endnotes 1 General information See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. Minister's second reading speech-- Legislative Assembly: Legislative Council: The long title for the Bill for this Act was "A Bill for an Act to make miscellaneous amendments to the Corrections Act 1986, the Children, Youth and Families Act 2005 and the Serious Sex Offenders (Detention and Supervision) Act 2009 and for other purposes." By Authority. Government Printer for the State of Victoria. 59