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CORRECTIONS AMENDMENT BILL 2012

     Corrections Amendment Bill 2012

                        Introduction Print


              EXPLANATORY MEMORANDUM


                                 General
This Bill makes miscellaneous amendments to the Corrections Act 1986 and
the Parole Orders (Transfer) Act 1983.

                              Clause Notes

                      PART 1--PRELIMINARY
Clause 1   sets out the purpose of the Bill which is to make miscellaneous
           amendments to the Corrections Act 1986 and the Parole Orders
           (Transfer) Act 1983.

Clause 2   provides that the Bill will commence on a day or days to be
           proclaimed. It has a default commencement date of 1 November
           2013.

               PART 2--CORRECTIONS ACT 1986
Clause 3   provides that the Corrections Act 1986 is called the Principal
           Act in this Part.

Clause 4   provides for the inclusion of new terms in the definitions section
           of the Principal Act. These new definitions are dentist, garment
           search, pat-down search, scanning search and police custody
           transfer order.
           The definition of dentist is required because section 47(1)(f) of
           the Principal Act is being amended to include dentists.
           The definitions of three types of search are required for the
           amendments to section 100 of the Principal Act. The definition
           of police custody transfer order is required for the purposes of
           new Division 2B of Part 8.


571251                               1     BILL LA INTRODUCTION 12/12/2012

 


 

Clause 5 amends section 6C(1) of the Principal Act by inserting a new paragraph (bb). Section 6C of the Principal Act lists those persons who are not to be regarded as being in the legal custody of the Secretary. The amendment adds persons absent from a prison under an order made under new section 56D. Clause 6 Subclause (1) amends section 6D of the Principal Act by inserting new subsection (2A). The new provision provides that a person is deemed to enter the legal custody of the Chief Commissioner of Police when a police custody transfer order is made under section 56D and physical transfer of the physical custody of the person has occurred. Subclause (2) amends section 6D(3) of the Principal Act to specify that legal custody under new subsection (2A) is deemed to continue until that custody ceases. Clause 7 amends section 6E(1) by inserting new paragraph (cb). Section 6E specifies when the Chief Commissioner of Police's legal custody ceases. New paragraph (cb) provides that legal custody of person subject to a police custody transfer order ends when physical custody of the person is transferred to a person acting under lawful authority on behalf of the Secretary. Clause 8 Subclause (1) repeals section 8G(1) of the Principal Act. Section 8G(1) exempts certain prison building works from section 218 of the Building Act 1993. Section 218 was repealed in 1997, making section 8G(1) redundant. Subclause (2) amends section 8G(2) of the Principal Act to include sections 23 and 47 of the Building Act 1993 in the list of sections that do not apply in relation to any permit, approval, amendment, plan or other document relating to building work carried out under an agreement under section 8B(1)(a) of the Principal Act (agreements for the provision of correctional services). Section 8G(2) of the Principal Act already excludes the application of section 30 of the Building Act 1993 (relevant building surveyor to give copies of permits and documents to council) and section 73 of that Act (relevant building surveyor to give copies of documents to council). Section 23 of the Building Act 1993 requires a building surveyor to notify the reporting authority of a permit that differs from the recommendations in the reporting authority's report. 2

 


 

Section 47 of the Building Act 1993 requires a building surveyor to notify the reporting authority of an occupancy permit which differs from the recommendations in the reporting authority's report. Sections 23 and 47 did not apply to building work under a correctional services agreement with the Minister when section 8G was inserted into the Principal Act. They have since become binding on the Crown and public authorities. It is appropriate to list these sections in section 8G(2) of the Principal Act as the public availability of these documents could have an impact on prison security. Clause 9 amends section 16 of the Principal Act. The Secretary will now be able to authorize a registered medical practitioner (who is not an employee of the Department of Justice) to act as principal medical officer for a prison in addition to the Secretary's current power to authorise a non-employee medical practitioner to act as medical officer. Such medical services are currently provided by private medical practitioners. This amendment therefore brings the Principal Act into line with current practice. Clause 10 Subclause (1) inserts a new subsection (5A) into section 20 of the Principal Act. This new subsection requires an officer to provide certain oral or written information to the Secretary when required by the Secretary. The Secretary may require information in relation to the security and good order of a prison or the safe custody and welfare of prisoners. The Principal Act currently provides for officers to make "returns and reports" and it is not clear that this extends to oral and other information. This amendment adds clarity to the existing requirement. Subclause (2) amends section 20(6)(b) of the Principal Act so that new section 20(5A) applies to certain officers in a more limited way. Clause 11 repeals section 30 (secrecy) of the Principal Act. New Part 9E of the Principal Act now deals with disclosure of information. 3

 


 

Clause 12 amends section 30A of the Principal Act to allow a victim to be given a copy of an order made under the Serious Sex Offenders (Detention and Supervision) Act 2009 in relation to the perpetrator. Subclause (5) amends section 30A(2AC)(a) of the Principal Act by replacing a reference to section 183 with a reference to section 184. Section 184 of the Serious Sex Offenders (Detention and Supervision) Act 2009 provides for restricting the identification of offenders and is the section to which this subsection should refer. Subclause (6) makes a similar amendment to section 30A(2AC)(b) by substituting a reference to section 188 with a reference to section 186. Section 186 makes it an offence to publish information in contravention of an order and is the appropriate reference for this provision. Clause 13 amends section 33 of the Principal Act and repeals the definition of official visitor and inserts a definition for independent prison visitor. The substance of the definition remains the same and the function of the clause is to rename official visitors as independent prison visitors. Clause 13 also substitutes "official visitor" in paragraph (e) of the definition of visitor in section 33 with "independent prison visitor". The purpose of the independent prison visitor program is to provide an independent overview of the prison system. The change of title will more accurately reflect this purpose. Clause 14 substitutes section 35 of the Principal Act. The purpose of this clause is to replace the several references to "official visitor" with "independent prison visitor". Clause 15 repeals section 36 of the Principal Act. New Part 9E of the Principal Act now deals with disclosure of information. Clause 16 removes the reference to the general post office in section 45(8) of the Principal Act and inserts a reference to the intersection of Elizabeth and Bourke Streets. This amendment does not change the location from where the metropolitan area is measured, but reflects the fact that there is no longer a general post office at the corner of Elizabeth and Bourke Streets. 4

 


 

Clause 17 Subclause (1) includes dentists in the list of private health professionals whom prisoners have the right to access at their own expense with the approval of the principal medical officer. Requests for private dental treatment are generally granted, but it is considered appropriate to formalise this right in legislation. Subclauses (2) and (3), in line with preceding clauses, substitute references to independent prison visitor for references to official visitors in sections 47(1)(j) and 47(1)(m)(i) of the Principal Act. Clause 18 substitutes a reference to an independent prison visitor for a reference to an official visitor in section 47B(4), in line with preceding clauses. Clause 19 inserts new section 47M into the Principal Act with the heading "Information-sharing between the Secretary and the Victorian Registrar". This new section requires the Secretary to notify the Registrar of Births, Deaths and Marriages of the name (including any other name by which the prisoner has been known) and the date of birth and former residential address of a prisoner. New subsection 47M(2) will require the Secretary to notify the Victorian Registrar of a prisoner's release if the Secretary has given a notification under section 47M(1). This amendment remedies an inconsistency in the Principal Act, namely section 79H which requires the Secretary to provide such information to the Registrar in relation to parolees. However, there is no such requirement to provide this information in relation to prisoners who are still in custody. Clause 20 inserts new Division 2B in Part 8 of the Principal Act. The heading for the new Division is "Police custody transfer orders". New section 56B(1) permits a member of the police force of or above the rank of Assistant Commissioner of Police to apply to the Supreme Court for a police custody transfer order if a prisoner wishes to voluntarily provide information to police, and other thresholds specified in the section are satisfied. Section 56B(2) prohibits the making of an application for a police custody transfer order for a purpose relating to the investigation of an offence by the prisoner unless the prisoner has been found guilty or convicted of that offence. In these circumstances, an order under section 464B of the Crimes Act 1958 should be sought. 5

 


 

Section 56B(3) prohibits the making of an application for a police custody transfer order in relation to circumstances in which a prisoner may be removed from prison by or under the Principal Act, for example in accordance with an order made under regulation 20 of the Corrections Regulations 2008. Section 56B(4) sets out those matters that must be included in an application for a police custody transfer order. Section 56B(5) requires a copy of the application for a police custody transfer order to be provided to the Secretary to the Department of Justice. Section 56B(6) states that the application for a police custody transfer order is not to be heard in open court. New section 56C requires the Supreme Court, when considering the application for a police custody transfer order, to determine the application on the papers and specifies that documents or orders made under Division 2B may not be inspected unless otherwise so ordered by the Court. The result of sections 56B(6) and 56C is that knowledge of the application for, or granting of, a police custody transfer order, which may relate to sensitive police investigations, will be restricted. Under new section 56D(1), the Supreme Court may make a custody transfer order if satisfied with the grounds of the application and that adequate consideration has been given to security and welfare risks. Section 56D(2) provides that a police custody transfer order permits a prisoner to be absent from a prison for a maximum period of 3 days. Section 56D(3) specifies that a police custody transfer order must not authorise the overnight absence of a prisoner except in exceptional circumstances. Section 56D(4) provides that a police custody transfer order is subject to any conditions imposed by the Supreme Court. New section 56E provides that the Chief Commissioner of Police must inform the Secretary to the Department of Justice of any change to the risks to the security and good order of the prison in which the prisoner is detained or to the safety or welfare of the 6

 


 

prisoner or any person while the order is in force and when the order ceases to be in force. New section 56F permits the Secretary to the Department of Justice or a member of the police force of or above the rank of Assistant Commissioner of Police to apply at any time for the revocation of a police custody transfer order. Clause 21 amends section 57A of the Principal Act and provides that the Secretary must not issue a corrections administration permit in circumstances in which a prisoner may be removed from prison in accordance with a policy custody transfer order. Clause 22 inserts a new section 61(2)(ab) into the Principal Act to allow Associate Judges of the Supreme Court to be appointed to the Adult Parole Board. Clause 22(2) of the Bill substitutes section 61(2)(e) to make the appointment of at least one part-time member of the Adult Parole Board mandatory. Clause 23 inserts a new section 63(6AA) into the Principal Act. Consistent with existing subsections (6) and (6A), if an Associate Judge no longer holds that office, he or she will no longer be a member of the Board. Clause 23(2) inserts a new section 63(8A) which provides that appointment as a member of the Board does not affect the tenure or privileges of an Associate Judge and that service as a member by an Associate Justice is to be regarded as service as an Associate Judge. This new subsection is consistent with existing subsection (8) which applies to Judges of the Supreme and County Courts. Clause 23(3) amends section 63(9) to include Associate Judges of the Supreme Court in the list of Board members who are not eligible to receive remuneration and travelling or other expenses under that provision while performing duties for the Board. Judges of the Supreme Court, County Court and Magistrates are currently included in that list. Clause 23(4) amends section 63(10) to provide that Associate Judges of the Supreme Court are Board members who are eligible to receive travelling allowances. Judges of the Supreme Court, County Court and Magistrates currently receive these allowances. 7

 


 

Clause 24 inserts the words "Associate Judge" into section 64(2) of the Principal Act which contains the requirement that each division of the Board include a judicial member. Clause 25 inserts "Associate Judge" into section 64A(5). This section relates to the Detention and Supervision Order division of the Board, and subsection (5) requires that at least one of the members of this division be a judicial member. Clause 26 inserts a reference to a member appointed under section 61(2)(ab) into the list of persons in section 65 of the Principal Act who may preside at a meeting of the Board in the absence of the chairperson. The inclusion of this reference will permit Associate Judges of the Supreme Court to preside as chairperson at meetings of the Board. Section 65 currently enables Judges of the Supreme and County Courts and Magistrates to preside as chairperson. Clause 27 amends the annual reporting requirements of the Adult Parole Board specified in section 72(1) of the Principal Act to include additional specified information. Clause 28 omits the words "for more than 3 months" from section 76 of the Principal Act. The effect of this amendment is to require that offenders are not sentenced to any term of imprisonment for an offence committed during their parole period before they are to be regarded as discharged from their sentence upon the parole period elapsing or sentence completion. Clause 29 omits the words "for more than three months" from section 77(5) of the Principal Act. Section 77(5) currently allows the Board to cancel a prisoner's parole (even if the parole period has elapsed) if he or she is sentenced to another prison sentence of more than three months for an offence committed during his or her parole period. The omission of these words will allow the Board to cancel a prisoner's parole regardless of the length of the new prison sentence. Subclause (2) inserts section 77(5A) into the Principal Act. This subsection clarifies that an offence is taken to have been committed during the parole period for the purposes of subsection (5) if it was committed between 2 dates, one of which 8

 


 

is within the parole period or if the parole period is between the 2 dates. Clause 30 inserts a new subsection (2A) after section 90(2) of the Principal Act. This new subsection requires an officer to provide oral or written information to the Secretary, when required by the Secretary, about the management, security and good order of a location or the safety and welfare of offenders at a location. Clause 30(2) substitutes section 90(4)(a) of the Principal Act so that subsections (1), (2) and (2A) apply to certain officers in a more limited way. Clause 31 repeals section 91 (disclosure of information). New Part 9E of the Principal Act now deals with disclosure of information. Clause 32 inserts a new section 99A into the Principal Act which provides for the testing of offenders to assess whether they are under the influence of alcohol, poison or a drug of dependence. Tests may be carried out if the Secretary considers that it is necessary for-- the management, good order or security of a location; or the safety and welfare of offenders at a location; or ensuring that an offender performs unpaid community work at a location. New subsection (2) provides that the Secretary must believe on reasonable grounds that the offender is under the influence of such a substance before directing the offender to submit to such tests. New subsection (3) provides that the tests must be of a kind approved by the Secretary and specifies that they may include the taking of samples of urine. New subsection (4) states that for the purposes of this section, location means a community corrections centre or a place which an offender is required to attend for educational recreation or for any other purpose. 9

 


 

This subsection intentionally excludes the home of the offender or places at which an offender is required to live by a correctional order, which is referred to in paragraph (b) of the definition of location in section 3 of the Principal Act. Clause 33 inserts new provisions into existing section 100 of the Principal Act. The new subsections will extend the search power of community corrections officers (currently limited to community corrections centres) to enable officers to conduct searches at places at which offenders are required to attend by correctional order or Part 9 of the Principal Act. This subsection intentionally excludes the home of the offender or places at which an offender is required to live by a correctional order from the search power (such residences are included in the definition of location in section 3 of the Principal Act). The power to search offenders at places other than community corrections centres is necessary to manage the risks posed by offenders' unauthorised use of drugs, alcohol or weapons. The new subsections include a number of safeguards to ensure that the dignity and safety of offenders are not compromised during a search. Clause 34 amends section 101(1) of the Principal Act so that the current seizure powers set out in section 101 will apply to searches conducted at places at which the offender is required to attend by correctional order or Part 9 of the Principal Act. This brings the seizure powers into line with the new search powers. Harmonisation is necessary to allow officers to seize prohibited items located during a search. Clause 35 inserts a new Part 9E into the Principal Act with the heading "Disclosure of information". Section 104ZX contains definitions that apply in Part 9E. The terms defined in this section are-- Corrections legislation; information; official duties; personal or confidential information; relevant person. 10

 


 

Section 104ZY provides for the use of information that is reasonably necessary for the performance of official duties by relevant persons. This section also sets out other circumstances where confidential information may be used or disclosed by relevant persons. Subsection (3) provides that section 104ZY does permit the use or disclosure of information described in section 104ZZ, being information given to the Adult Parole Board that is not disclosed in a decision of the Board or in any reasons given by the Board. Section 104ZZ sets out the circumstances in which information given to the Adult Parole Board that is not disclosed in a decision of the Board or reasons of the Board may be used or disclosed. Section 104ZZA provides that it is an offence for a relevant person (or a person who has been a relevant person) to use or disclose personal or confidential information unless it is authorised by section 104ZY or 104ZZ. The penalty for contravening this offence is 120 penalty units. Clause 36 expands the regulation making power in section 112(1)(i) of the Principal Act to allow regulations to be made relating to the expenditure of moneys from prisoner interest funds for the purposes of assisting victims of crime or their family members. This power is intended to address situations where victims or their families need financial assistance but are ineligible for assistance under existing legislative provisions. For example, if a victim of crime is in a coma and is unlikely to recover, his or her family may be required to travel to Victoria from interstate or overseas. In such circumstances, financial assistance may not be available to the family because the victim has not died and family members are not deemed to be related victims in accordance with section 11 of the Victims of Crime Assistance Act 1996. Regulations may also be made in relation to police custody orders. Clause 37 inserts new section 121, a transitional provision. Subsection (1) preserves the appointment of official visitors made before the commencement of the Bill. Subsection (2) provides that any reference to an official visitor in any document, as far as it relates to the period after the commencement of this Bill, is to be construed as a reference to an independent prison visitor. 11

 


 

PART 3--PAROLE ORDERS (TRANSFER) ACT 1983 Clause 38 provides that in Part 3 of the Bill, the Parole Orders (Transfer) Act 1983 is called Principal Act. Clause 39 inserts a new heading, "PART 1--PRELIMINARY", before section 1 of the Principal Act. A legislative scheme for the interstate transfer and registration of parole orders has existed since 1983, with participating jurisdictions enacting legislation based on a model Bill for this purpose. A model amendment Bill has been prepared to address a number of operational and technical issues that have arisen since the scheme commenced. Part 3 of this Bill makes the amendments contained in the model amendment Bill. Clause 40 makes amendments to definitions in section 3 of the Principal Act. Clause 40(1) amends the definition of designated authority to exclude body corporates. Clause 40(2) inserts a new paragraph (c) into the definition of parole order. This new paragraph provides that prospective parole orders or prospective authorities in paragraphs (a) or (b) are considered to be parole orders, but only for the purposes of making or dealing with a request to register an interstate parole order. Clause 41 inserts a new heading, "PART 2--REGISTRATION OF PAROLE ORDERS" after section 4 of the Principal Act. Clause 42 makes amendments to section 5 of the Principal Act. Clause 42(1) enables the Minister to direct the Registrar to register a parole order from another State or Territory that had not been made at the time of the request for registration. Previously, an order was required to be in force at the time of the request. Clause 42(2) makes a similar amendment to section 5(2) of the Principal Act. The Minister may request the registration in another State or Territory of a parole order made under Victorian law. The order no longer needs to be in force under a Victorian law for the request to be made. 12

 


 

Clause 42(3) inserts two new subsections into section 5 of the Principal Act. New subsection (3) provides that the Minister must not make a direction or request to register a parole order unless the Minister is satisfied that the parolee has consented to or requested the registration or is present in the jurisdiction in which the order is proposed to be registered. New subsection (4) allows a parolee to withdraw his or her consent at any time before the parole order is registered. Parolees are not permitted to withdraw consent or request after the parole order is registered. Clause 43 amends section 6 of the Principal Act. References to documents are now taken to be references to the original document or a copy certified as a true copy by the Registrar. Subclause (2) inserts new subsection (3) that specifies that a reference to a parole order in subsection (1)(a) includes a reference to the original and a copy that has the same effect as the original under Victorian law. Clause 44 substitutes existing section 7 of the Principal Act. New section 7 sets out matters to which the Minister is to have regard when determining whether to make a direction or request for the registration of a transferred order. The matters to which the Minister must now have regard are-- the interests of the person to whom the parole order relates, including his or her welfare; the administration of justice in Victoria or any other jurisdiction; the protection of the community in Victoria or any other jurisdiction; any other matter the Minister considers relevant. Clause 45 inserts new section 8(1A) into the Principal Act. This provides that parole orders must not be registered in Victoria unless the parolee is in Victoria. This requirement is to prevent inadvertent parole breaches. For example, if a NSW parole order is registered in Victoria while the parolee is still living in NSW the parolee is unable to leave NSW without that parolee breaching the conditions of his or her parole order. 13

 


 

Clause 46 inserts section 9(2A) into the Principal Act which provides that the parolee may be dealt with under Victorian law in relation to any breach of his or her order that occurred before it was registered in Victoria. For example, if a NSW parolee commits an offence while on parole in NSW and then transfers to Victoria before the crime is discovered, the Victorian Adult Parole Board will be able to take action against the parolee as the Board would with any Victorian parolee. This provision is further to, and does not limit, sections 9(1) and 9(2). Section 9(3) of the Principal Act determines the appropriate court for the purposes of section 9(2). Subclause (2) of the Bill replaces the existing section 9(3) with a new provision for determining the appropriate court. The appropriate court is now determined according to whether or not the relevant sentence of imprisonment was imposed by a court of summary jurisdiction or on appeal from such a court. Subclause (3) repeals section 9(4) of the Principal Act. This section relates to "street time", that is, the period during which an offender is at liberty while on parole. Section 9(4) does not permit the recognition of "street time". The result of this is that, if an offender is returned to prison for breach of parole, the time he or she spent in the community on parole does not count towards the serving of his or her sentence. For example, if a prisoner had two years left to serve when released on parole, and the parole order was revoked after the prisoner was on parole for 18 months, the parolee would be returned to prison for two years, rather than six months. Some Australian jurisdictions recognise street time, and some do not. In Victoria, section 77(7A) of the Corrections Act 1986 gives the Adult Parole Board the discretion to recognise time spent in the community and this amendment will harmonise these provisions. Clause 47 inserts new paragraph (d) into section 10(1) of the Principal Act. It provides that proceedings against a parolee may not be commenced or continued under Victorian law in relation to a breach of the parole order on the registration of that order. 14

 


 

This provision relates to new section 9(2A) which allows the transferee jurisdiction to deal with breaches that occurred prior to registration. In practice, if there were any proceedings on foot against a parolee, it is unlikely that a transfer would be registered until those proceedings were resolved. Subclause (3) amends section 10(2)(b) to refer to the first registration of a parole order. Section 10(2)(b) currently only refers to "the registration". Clause 48 inserts a new Part heading, "PART 3--GENERAL", after section 10 of the Principal Act. Clause 49 inserts section 11A into the Principal Act to provide for the use of documents and information. New subsection (1) lists the information that the Minister may consider and provide for the purpose of making a determination or exercising a discretion under the Parole Orders (Transfer) Act 1983. The Minister may inform himself or herself as he or she thinks fit. In particular, the Minister may do this with reference to relevant documents and information provided by the designated authority of another jurisdiction or by reference to information that has been obtained in the course of investigations carried out in Victoria in connection with the making of the determination or exercising the discretion. Subsection (1) provides that the Minister may provide any of this information to any government agencies or persons that may be affected by the parolee's presence in their jurisdiction. The information which the Minister may provide specifically includes personal information about the parolee. However, subsection (2) provides that personal information cannot be disclosed unless the parolee-- has consented to or requested the transfer of his or her parole order; or is present in the jurisdiction in which the order is, or is proposed to be, registered; or has applied for permission to travel to that jurisdiction. 15

 


 

Subsection (3) provides that a parolee who has consented to, or requested, the transfer of his or her parole order may withdraw the consent or request at any time before the parole order is registered. PART 4--GENERAL Clause 50 provides for the automatic repeal of this amending Act on 1 November 2014, one year after the default commencement date. The repeal of this Act does not affect in any way the continuing operation of the amendments made by this Act (see section 15(1) of the Interpretation of Legislation Act 1984). 16

 


 

 


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