99L—Court may make monitoring order
(1) A police officer
may apply to the Magistrates Court for an order requiring a person who
has been found guilty of a bushfire offence (the "defendant") to be monitored,
during the State's fire danger season in each year, by use of an
electronic monitoring device.
(2) On the hearing of
an application under this section, the Magistrates Court may make a
monitoring order against the defendant if the Court is satisfied that the
defendant is at risk of committing a further bushfire offence.
(3) In considering
whether or not to make a monitoring order, the Magistrates Court must have
regard to the following:
(a)
whether the defendant has engaged in any conduct (whether or not constituting
an offence) that indicates that they might commit a further bushfire offence;
(b) any
psychological or psychiatric condition that indicates that the defendant may
be at risk of committing a further bushfire offence;
(c) any
other matter that, in the circumstances of the case, the Magistrates Court
considers relevant.
(4) A
monitoring order—
(a) may
be made in relation to a defendant regardless of whether the defendant was
found guilty of the bushfire offence before or after the commencement of this
section; and
(b)
remains in force until revoked by the Court in accordance with
subsection (6); and
(c)
ceases to apply to the defendant during any period during which—
(i)
the order is suspended by the Court under
subsection (8); or
(ii)
the defendant is being monitored by an
electronic monitoring device under any other Act or law.
(5) A person subject
to a monitoring order must—
(a)
report to the Commissioner of Police in each year in accordance with any
directions of the Commissioner of Police; and
(b) wear
or carry the electronic monitoring device supplied by the Commissioner of
Police for the purposes of the order at all times during the State's fire
danger season in each year; and
(c) take
reasonable care to maintain the electronic monitoring device undamaged (other
than by normal wear and tear); and
(d)
comply with any directions of a corrections officer for the purposes of
installing or maintaining the electronic monitoring device; and
(e)
comply with all reasonable directions of the Commissioner of Police in
relation to the electronic monitoring device during the period for which the
requirement applies.
Maximum penalty: $10 000 or imprisonment for 2 years.
(6) The Magistrates
Court may, on application made by a police officer or by the defendant, revoke
a monitoring order if the Court is satisfied that—
(a) the
defendant is no longer at risk of committing a further bushfire offence; or
(b) the
defendant is, or will be, residing in a place outside the State and the
defendant undertakes to not be present in the State during the State's fire
danger season in any year.
(7) If the defendant
contravenes an undertaking given in accordance with subsection (6)(b),
the defendant is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(8) The Magistrates
Court may, on application made by a police officer or by the defendant,
suspend a monitoring order for a specified period if the court is satisfied
that the defendant is not at risk of committing a further bushfire offence
during that period or that it is otherwise appropriate to do so.
(9) An application for
revocation or suspension of a monitoring order may only be made by the
defendant with the permission of the Magistrates Court and permission is only
to be granted if the Magistrates Court is satisfied there has been a
substantial change in the relevant circumstances since the order was made or
last suspended.
(10) The Magistrates
Court must, before revoking or suspending a monitoring order—
(a)
allow all parties a reasonable opportunity to be heard on the matter; and
(b) have
regard to the same factors that the Magistrates Court is required to have
regard to in considering whether or not to make a monitoring order.
(11) In proceedings
under this section other than for an offence, the Magistrates Court is to
decide questions of fact on the balance of probabilities.
(12) The Magistrates
Court may, for the purpose of proceedings for the making, revocation or
suspension of a monitoring order, require a party to the proceedings or any
other body or person to furnish the Court with a report on any matter.
(13) A copy of any
report furnished to the Magistrates Court under subsection (12) must be
given to each party to the proceedings.
(14) For the purposes
of this section (and any monitoring order under this
section), the "State's fire danger season" will be taken to continue while any
part of the State is subject to a fire danger season fixed under
section 78 of the Fire and Emergency Services Act 2005 .
(15) In this
section—
"bushfire offence" means an offence against section 85B of the
Criminal Law Consolidation Act 1935 ;
"corrections officer" means an officer or employee of the administrative unit
of the Public Service that is responsible for assisting a Minister in the
administration of the Correctional Services Act 1982 ;
"electronic monitoring device" means a device approved under section 4 of
the Correctional Services Act 1982 ;
"monitoring order" means an order referred to in subsection (1).