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Corrections Legislation Further
Amendment Bill 2017
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1--Preliminary
Clause 1 sets out the main purposes of the Bill, which are to amend the
Corrections Act 1986--
• to create a new class of officer responsible for providing
security at the Adult Parole Board;
• to clarify the power to remove electronic monitoring
devices and equipment from offenders who do not
consent to removal;
• to clarify powers in relation to the use of firearms by
prison officers and authorised police officers;
• to prohibit certain contraband items in prisons;
• to allow community corrections officers to supervise or
conduct drug and alcohol tests on prisoners on parole
and offenders subject to community correction orders;
• to clarify provisions relating to the Adult Parole Board;
• to insert a regulation-making power permitting
regulations to be made that enable prisoners to engage
in paid employment in the community; and
• to insert a transitional provision in relation to parole.
581343 1 BILL LA INTRODUCTION 6/9/2017
In addition, the purposes of the Bill are--
• to amend the Major Crime (Investigative Powers)
Act 2004 concerning the supervision and return of
prisoners following appearances before the Chief
Examiner; and
• to make consequential and minor amendments to the
Bail Act 1977 and the Victoria Police Act 2013.
Clause 2 provides that the Bill will commence on the day after the day on
which the Bill receives Royal Assent except for clauses 5, 6, 14,
17 and 20 of the Bill which will come into operation on a day or
days to be proclaimed.
Clauses 5 and 6 (use of firearms by police exercising powers
of a prison officer) and clauses 14, 17 and 20 (alcohol and drug
testing of prisoners on parole and offenders) commence on a
day or days to be proclaimed to allow sufficient time for
implementation of the amendments, including relevant
operational processes for Victoria Police and Corrections
Victoria.
If a provision in clauses 5, 6, 14, 17 or 20 does not come into
operation before 1 August 2018 it comes into operation on that
day.
Part 2--Amendment of the Corrections Act 1986
Clause 3 amends section 3 of the Corrections Act 1986 to insert
definitions for the terms Board, security officer, serious violent
offence, sexual offence and terrorism or foreign incursion
offence. The purpose of this amendment is to improve clarity
by locating these defined terms in the same section of the
Corrections Act 1986 that contains other defined terms.
References to defined terms that have been relocated to section 3
from other provisions in the Corrections Act 1986 are also
updated by the Bill. For example, clause 3(2) removes the
definition of the term Board in section 55(1) as this definition
will be relocated by the Bill to section 3.
The term security officer is a new definition for those officers
responsible for providing security functions at the Adult Parole
Board and this class of officer is created by amendments to
section 12 of the Corrections Act 1986 contained in clause 4
of the Bill.
2
Clause 4 amends section 12 of the Corrections Act 1986 to expand
the list of officers who may be employed under the Public
Administration Act 2004 to include security officers who
must be either prison officers or escort officers. The insertion
of section 12(5) of the Corrections Act 1986 permits the
appointment under section 12(1) to be made to a described
class of prison officers or escort officers. Alternatively, the
appointment can be made to individually named prison officers
or escort officers.
Clause 5 amends section 23 of the Corrections Act 1986 to clarify that
this section is subject to new section 23A in relation to police
officers authorised as prison officers under section 15 of the
Corrections Act 1986 and also to clarify that this section is
subject to the provisions in sections 55EA to 55EC of the
Corrections Act 1986 in relation to the issuing and discharging
of lethal and non-lethal firearms.
New section 23A applies to police officers who have been
authorised to exercise the powers of a prison officer, subject
to any conditions or limitations imposed on that authorisation.
This amendment clarifies that to the extent that such an
authorisation of police officers extends to the powers in
section 23, in particular the power to use reasonable force,
where necessary, to compel a prisoner to obey an order given,
these powers are subject to the conditions and limitations in
relation to the use of firearms contained in section 23A.
Sections 55EA to 55EC are stated to apply to escort officers and
prescribe circumstances for the issuing and discharging firearms.
Applying the definition of escort officer and prison officer in
section 3 of the Corrections Act 1986, while all prison officers
are also escort officers, not all escort officers are prison officers.
To avoid any doubt, this amendment is intended to clarify that
sections 55EA to 55EC apply not only to escort officers, but
also to prison officers and that the general provision on the use
of reasonable force in section 23(2) should be read as subject to
section 55EA to 55EC in circumstances where reasonable force
is used by prison officers who are issued with firearms.
3
Clause 6 inserts new section 23A into the Corrections Act 1986 and sets
out the conditions and limitations that apply to the use of firearms
by police officers who have been authorised to exercise the
powers of a prison officer under section 15 of the Corrections
Act 1986.
Section 15 of the Corrections Act 1986 allows the Secretary
(or delegate) to authorise, by instrument, a police officer or class
of police officers to exercise any or all of the powers of a prison
officer. The Secretary can attach conditions to the authorisation.
An authorisation under section 15 may be given to police
officers during emergency situations when Corrections Victoria
has requested the assistance of Victoria Police, for example,
during a prison riot.
In the event of an emergency that results in a substantial
disruption or disturbance within a prison (such as a riot),
Corrections Victoria and Victoria Police have settled
arrangements for the management of the emergency, which
involve authorising police officers to exercise the powers
of prison officers and to carry firearms into the prison.
The limitations and conditions on the use of firearms by escort
officers that are contained in sections 55EB and 55EC of the
Corrections Act 1986 have been replicated in the Corrections
Regulations 2009 as applying to police officers authorised under
section 15 of the Corrections Act 1986.
To provide legal certainty and transparency the Bill amends the
Corrections Act 1986 to confirm that these firearm provisions
apply to police officers who have been authorised to exercise the
powers of prison officers in the event of a prison emergency.
The Bill provides that police officers who may be authorised
to act as a prison officer under section 15 must comply with
the conditions set out in new section 23A of the Corrections
Act 1986 that is inserted by the Bill.
New section 23A(2) permits the discharge of a firearm at a
prisoner escaping or attempting to escape from custody if the
police officer holds a reasonable belief that the discharging of
the firearm is the only practicable way to stop the prisoner from
escaping from custody.
4
New section 23A(3) allows a police officer to discharge a firearm
at any person if an escape is in progress and the police officer
reasonably believes that discharging the fire arm is only
practicable way of preventing the prisoner from escaping.
New section 23A(4) allows a police officer to discharge a firearm
at a person using or threatening to use force against any person in
a prison, or officers within the meaning of Part 5 (including the
police officer carrying a firearm outside the prison), or a prisoner
outside the prison, if the police officer holds a reasonable belief
that the discharging of the firearm is the only practicable way of
preventing the person using or threatening to use force from
causing death or serious injury.
New section 23(5) requires police officers to issue an oral
warning to the effect that the person will be fired upon if the
person does not stop escaping, attempting to escape, aiding
an escape or attempted escape or using or threatening the use
of force. This warning must be given if practicable in the
circumstances to do so. This new section also requires police
officers to be satisfied that the discharge of a firearm will not
create an unnecessary risk to any other person such as bystanders.
New section 23(6) allows a police officer to discharge prescribed
non-lethal firearms if the police officer reasonably believes that
discharging the firearm is the only practicable way of preventing,
controlling or stopping a riot in a prison, or preventing another
serious threat to the security or good order of a prison.
The prescribed non-lethal firearms are set out in regulation 8
of the Corrections Regulations 2009 and are a tear gas gun or
projector and a shotgun which fires rounds commonly known as
"bean bag" rounds.
Clause 7 amends section 30 of the Corrections Act 1986 concerning
the electronic monitoring of prisoners, which currently allows
a prison Governor to order a prisoner to be electronically
monitored for a period up to 24 hours each day if necessary
for the good order of the prison or the safety and welfare of a
prisoner or other persons.
Section 30(2)(b) currently prohibits prisoners from tampering
with, damaging, or disabling any electronic monitoring device.
Failure to comply is an offence punishable by a 3 month term of
imprisonment or 30 penalty units. Clause 7 of the Bill adds the
removal of the electronic monitoring device to the list of actions
5
the prisoner is prohibited from performing that will also
constitute this offence.
Clause 7(2) also inserts an express power for the Governor to
direct that an electronic monitoring device that is being worn
by a prisoner be removed for any reason. This amendment is
consistent with other reforms in the Bill that permit the removal
of electronic monitoring devices from offenders subject to
community correction orders or parole orders.
Clause 8 inserts new section 31A in the Corrections Act 1986.
Existing section 32 of the Corrections Act 1986 prohibits the
entry of persons or property into a prison without authorisation.
The offence carries a maximum penalty of 2 years imprisonment.
Section 32(1)(c) of the Corrections Act 1986 makes it an
offence to take or send, or attempt to take or send, prohibited
items into or out of a prison. The current offence does not
include cases where prisoners possess, use or otherwise deal with
prohibited items that have entered a prison or have been created
inside a prison.
Clause 8 addresses this deficiency by providing that it is an
offence for a prisoner to possess, make, use, control, conceal,
give or supply specified contraband items under 2 categories.
Failure to comply is an offence punishable by a term of
imprisonment of either 1 or 2 years depending on whether the
item falls under category 1 or category 2. A reasonable excuse
is available to the offence.
The possession and use of contraband is currently a prison
offence which is managed by each Governor using internal
disciplinary processes, rather than being referred to prosecution
(unless the contraband relates to an existing criminal offence
under other legislation, such as the use of illicit drugs).
Currently, some types of contraband as a prison offence are
only punishable by a fine under the Corrections Act 1986 and
constitute a prison offence within the meaning of section 48 of
the Corrections Act 1986 because it is a contravention of the
Corrections Act or the Corrections Regulations 2009.
The possession of unauthorised items is a prison offence in
accordance with regulation 50 of the Corrections Regulations
2009. The disciplinary proceedings for a prison offence
are set out in section 50 of the Corrections Act 1986.
These disciplinary proceedings include a reprimand, withdrawal
6
of privileges or being charged with a prison offence to be dealt
with at a Governor's hearing. If the Governor's hearing finds a
prisoner guilty of the prison offence, the Governor may impose
a reprimand, withdrawal of privileges or a fine up to one penalty
unit (one penalty unit is $155.46 from 1 July 2016 to 30 June
2017 and $158.57 from 1 July 2017).
The new offence contained in section 31A reflects an existing
prohibition on contraband that forms part of the conditions of
the sentence of imprisonment under the administration of that
sentence under the Corrections Act 1986. The contraband
offence is a separate offence from any other criminal offence
that may apply. The rationale for imposing discrete criminal
liability for these offences is that possessing, making, using,
controlling, concealing, giving or supplying these items
constitutes a breach of the prisoner's sentence of imprisonment,
being a breach of the condition of the prisoner's confinement
under the administration of that sentence under the Corrections
Act 1986 (see Lecornu v R [2012] VSCA 137).
Prohibited items in category 1 and category 2 in new section 31A
are intended to capture those contraband items that pose the most
serious risks to prison security, including the safety of other
prisoners and staff, or may be used as a means of escape or
facilitating other crime.
Category 1 prohibited items are explosive substances, controlled
weapons, dangerous articles, prohibited weapons, firearms, drugs
of dependence and child abuse material. These are the most
serious types of prohibited items and are already illegal in the
community. Electronic communication devices are also
category 1 prohibited items.
Category 2 prohibited items are drug paraphernalia, prescription
medication which has not been prescribed for the prisoner,
electronic storage or recording devices and electronic devices
that are capable of processing information but are not capable of
communication.
The new offence does not apply to items that are permitted to be
possessed, used or otherwise dealt with by a prisoner under the
Corrections Act 1986 or the Corrections Regulations 2009.
7
Under new section 31A(3), if an item prohibited by the offence is
found in a room solely occupied by a prisoner or on the person of
a prisoner, that is evidence for the purpose of a proceeding for the
offence that the item was in the possession of the prisoner.
The accused may point to or raise evidence to the contrary
suggesting that the item was not in the prisoner's possession.
This provision places an evidential burden on the accused as it
reflects a prima face presumption of possession in certain
circumstances and that presumption may be rebutted by the
accused by raising or pointing to evidence to the contrary.
New section 31A(4) sets out the list of contraband items that fall
under categories 1 and 2 for the purpose of the offence in new
section 31A(1).
Category 1 items include--
• an explosive substance, which has the meaning set out
in section 317 of the Crimes Act 1958, being--
• any material for making any explosive substance;
• any apparatus, machine, implement, or materials
used or intended to be used or adapted for
causing or aiding in causing any explosion in or
with any explosive substance;
• any part of any such apparatus machine or
implement;
• controlled weapons, dangerous articles and prohibited
weapons, which have the definitions contained in
section 3 of the Control of Weapons Act 1990 as
follows--
• a controlled weapon is a knife, other than a knife
that is a prohibited weapon or an article that is
prescribed by the regulations to be a controlled
weapon;
• a dangerous article is an article which has been
adapted or modified so as to be capable of being
used as a weapon or any other article which is
carried with the intention of being used as a
weapon;
8
• a prohibited weapon is an imitation firearm or an
article that is prescribed by the regulations to be
a prohibited weapon;
• an electronic communication device, being a device
capable of communication using any technology
(such as telecommunication, radio-communication,
internet and broadcasting technology), a part of one of
these devices or a device that enables or facilitates the
functioning of one of these devices. The intention of
this definition is to capture all electronic communication
devices, parts of such devices or devices that enable or
facilitate the functioning of an electronic
communication device, for example--
• a mobile phone or a watch that has mobile phone
or internet capabilities, Kindles that are internet
enabled, or a wireless-enabled wearable
technology device, such as fitbits, that has
mobile phone connectivity;
• any part of an electronic communication device
(such as a SIM card) regardless of whether the
part is detachable and may be used in other
electronic communication devices;
• a recharger or charging device, which may be
found as parts of electric items such as
toothbrushes, razors or hair clippers.
This is not intended to include a telephone facility that a prisoner
is authorised to use by a prison officer or the Governor.
Category 2 items include--
• drug paraphernalia, being any implement or device
used, made to be used or modified to be used, for
administering any drugs of dependence, including
syringes, hypodermic equipment, cones and bongs, or
any part these devices;
• prescription drugs or prescription medications that have
not been prescribed for the prisoner by a registered
medical practitioner or a dentist;
9
• electronic storage devices such as USB flashdrives,
memory sticks, SD cards, recording devices such as
cameras or other photographic equipment, video
recording equipment, sound recording equipment or
other recording devices;
• electronic devices that are capable of processing or
transforming digital information (but not capable of
communication) such as programmable calculators,
digital media players (including iPods), digital video
players, early games consoles, early computers (that are
not networked).
This section also defines the term use in relation to a drug of
dependence to have the same meaning as in section 70 of the
Drugs, Poisons and Controlled Substances Act 1981. That Act
provides that the use of a drug of dependence means--
• to smoke a drug of dependence;
• to inhale the fumes caused by heating or burning a drug
of dependence;
• to introduce a drug of dependence into the body of a
person.
Existing section 16 of the Sentencing Act 1991 provides that
every term of imprisonment imposed on a prisoner by a court in
respect of a prison offence must, unless otherwise directed by the
court because of the existence of exceptional circumstances, be
served cumulatively on any uncompleted sentence or sentences
of imprisonment imposed on that prisoner, whether before or at
the same time as that term.
Clause 9 inserts new Division 1B into Part 8 of the Corrections Act 1986.
Part 8 of the Corrections Act 1986 concerns the temporary
absence from a prison and is also the location of provisions
concerning parole.
The new Division inserted by the Bill concerns security officers
who will provide security services to the Adult Parole Board.
For the purpose of the new section dealing with powers of
security officers, the term prisoner on parole also includes a
prisoner who has had their parole cancelled.
10
New section 55K of the Corrections Act 1986 sets out the
functions of security officers and provides that security officers
are to provide security services at premises where the Adult
Parole Board conducts meetings or where employees of the
Department of Justice and Regulation who carry out
administrative functions to assist the Board to perform its duties
are located.
The main functions of security officers are to provide protection
to any person at risk as a result of the behaviour of a prisoner on
parole attending the premises of the Adult Parole Board and to
provide assistance to Victoria Police officers in the performance
of duties at premises where the Adult Parole Board meets.
The Bill provides that security officers have the power to carry
out searches, including for items in the possession or control of
the offender, but are not permitted to carry out strip searches.
Items that may endanger the safety of any person may be seized
by the security officer who also has the power to direct that a
parolee do or not do anything to maintain the safety of any
person.
New section 55L(1)(c) allows security officers to accompany a
prisoner on parole attending the Adult Parole Board premises to
allow them to remain in close proximity to the prisoner on parole.
In addition, new section 55L(1)(e) and (f) allow security officers
to use reasonable force to enforce a direction given to a prisoner
on parole by either a security officer or a police officer and to
apply an instrument of restraint if necessary to prevent injury to
any person.
Security officers will also have the power to arrest a prisoner on
parole without warrant if the security officer believes on
reasonable grounds that the prisoner has committed an indictable
offence or the Adult Parole Board makes a determination to
cancel the parole of the prisoner.
New section 55L(2) specifically allows security officers to be
issued with weapons, not including firearms, in accordance with
any exemption granted under section 8B of the Control of
Weapons Act 1990.
Instruments of restraint may only be used by security officers if
those instruments have been approved by the Secretary to the
Department of Justice and Regulation and are used in accordance
11
with the determination of the Secretary to the Department of
Justice and Regulation.
New section 55L(4) provides that security officers who arrest a
prisoner on parole are required to deliver the prisoner into police
custody as soon as practicable after the arrest to be dealt with
according to law (if the prisoner has committed an offence) or
for the purpose of returning them to custody (in the case where
parole is cancelled). Prior to the attendance of Victoria Police,
the Bill allows prisoners to be detained in a suitable place.
New section 55M requires items seized from a prisoner on parole
to be recorded and reported to the Secretary to the Department of
Justice and Regulation. These obligations are consistent with
other seizure provisions in the Corrections Act 1986.
New section 55N requires that events that include the use of force
or the application of an instrument of restraint must be reported
to the Secretary to the Department of Justice and Regulation.
New section 55O provides that a security officer is not liable for
injury or damage caused in the exercise of their lawful functions
when applying an instrument of restraint or using force to compel
a prisoner to comply with a direction.
Clause 10 amends section 70 of the Corrections Act 1986. Section 70
provides that the Secretary must supply assistance to the Board,
including employees to perform the functions of the Board in
supervising persons on release in the community who are subject
to parole orders. The amendment to section 70 will allow the
Adult Parole Board to require the Secretary to the Department of
Justice and Regulation to provide reports or information to the
Adult Parole Board on any matter concerning offenders if this
is required by the Board in the performance of its functions.
The Adult Parole Board was not previously provided with this
express power in the Corrections Act 1986, which is necessary
for the Board to perform its functions, and may include requiring
reports to assess suitability of prisoners to be released on parole
or to remain on parole.
Clause 11 amends the definition of serious offence by removing the
reference to section 77(9) of the Corrections Act 1986, which
previously defined the terms sexual offence and serious violent
offence. Both of these terms are moved to section 3 by this Bill.
12
Clause 12 inserts new section 74(1AA) of the Corrections Act 1986 to
require the Adult Parole Board to have regard to the record of the
court, including the judgment and reasons for sentence of the
court, when exercising the power whether or not to release a
prisoner on parole. Sentencing remarks set out the nature and
gravity of the offending and may provide an insight into
appropriate conditions or risks to the community relevant to the
consideration of a parole application and appropriate parole
conditions.
It is the existing practice of the Adult Parole Board to consider
sentencing and other court material before making parole
decisions. It is also an existing requirement in section 74AAA
of the Corrections Act 1986 in the case of parole decisions if
the prisoner has been convicted and sentenced for murdering a
police officer or in section 74AAB of the Corrections Act 1986
in "no body" cases.
Clause 13 amends section 74AAB of the Corrections Act 1986.
Subclause (1) confirms that the quorum of the Serious Violent
Offender or Sexual Offender Parole division of the Adult Parole
Board is comprised of the chairperson of the Board, one full time
member or one part-time member selected by the chairperson,
and any other members of the Board selected by the chairperson
from time to time, if any.
The amendment confirms that this division of the Board is
comprised of a minimum of 2 members, the chairperson
and one other member appointed by the chairperson.
The appointment of an additional third member is optional.
Subclause (2) repeals section 74AAB(8) of the Corrections
Act 1986 because the definitions of serious violent offence and
sexual offence are relocated to section 3 of the Corrections
Act 1986 by clause 3 of the Bill.
Clause 14 amends section 76A of the Corrections Act 1986 regarding
testing for drugs and alcohol if a prisoner is released on parole
and has an abstinence, treatment or testing condition of their
parole order. Section 76A of the Corrections Act 1986 currently
provides for testing prisoners on parole for alcohol or drug use if
directed by the Secretary to the Department of Justice and
Regulation.
13
To ensure the accuracy and reliability of drug and alcohol test
results, clause 14 inserts authority for the Secretary to the
Department of Justice and Regulation to direct that tests for drugs
or alcohol be conducted or supervised by any officers within the
meaning of Part 9. This direction may be made if the Secretary
forms the reasonable belief that the direction is required to ensure
that the test results are reliable and accurate.
Part 9 officers include community corrections officers (including
parole officers), employees in the public service and clinical staff
working at a location. Part 9 officers will also include security
officers performing security functions at the Adult Parole Board,
by virtue of clause 19 of this Bill.
To safeguard the personal dignity of a prisoner on parole
providing a sample of urine, the Bill requires that, to the extent
practicable, the test must be conducted or supervised by an
officer who is the same gender as that with which the person
being tested identifies or, if the person being tested so requests, a
different gender.
This reform has been included as a result of pathology staff
reporting behaviour that indicates that offenders have attempted
to provide substitute samples of urine for testing.
Clause 15 amends section 77 of the Corrections Act 1986 regarding the
matters that must be considered when the Adult Parole Board is
deciding to cancel parole.
Clause 15(1) inserts new section 77(8A) of the Corrections
Act 1986 to require the Adult Parole Board to have regard to
the record of the court, including the judgment and reasons for
sentence of the court, when exercising the power whether or not
to release a prisoner on parole. Sentencing remarks set out the
nature and gravity of the offending and inform the Board's
decision whether or not to cancel parole. This amendment is
consistent with current practice.
Clause 15(2) substitutes section 77(9) of the Corrections
Act 1986 to re-enact the definition of conviction.
The substitution omits the definitions of serious violent offence,
sexual offence, and violent offence which are relocated to
section 3 of the Corrections Act 1986 by clause 3 of the Bill.
14
Clause 16 inserts new section 78(5) of the Corrections Act 1986 to require
the Adult Parole Board to have regard to the record of the court,
including the judgment and reasons for sentence of the court,
when exercising the power whether or not to re-release a prisoner
on parole. Sentencing remarks set out the nature and gravity of
the offending and inform the Board's decision whether or not
to re-parole a prisoner under section 78 of the Corrections
Act 1986. This amendment is consistent with current practice.
This amendment supports the operation of existing 78 of the
Corrections Act 1986 which provides that prisoners are not
eligible for a further period of parole unless the prisoner has
served a further term of imprisonment equal to half the time
remaining at the point in time parole was cancelled or, if the
prisoner is serving a term of life imprisonment, 3 years have
elapsed.
Clause 17 inserts new section 78P(3), (4) and (5) in the Corrections
Act 1986, which allows prisoners on parole to be directed
by a specified officer to submit to breath testing, urinalysis
or other test procedures to detect drug or alcohol use.
Consistent with the amendment made by clauses 14 and 20 of
the Bill, section 78P is amended to empower a specified officer
to conduct or supervise a drug or alcohol test if that officer
reasonably believes that this is required to ensure that the
assessment of any drug or alcohol use by the prisoner on parole
is reliable and accurate. In addition, the Bill requires that, as
far as practicable, a urine test must be conducted or supervised
by a specified officer who is the same gender as that with which
the person being tested identifies or, if the person being tested
so requests, a different gender.
Clause 18 inserts new Division 8 in Part 8 of the Corrections Act 1986
regarding the removal of electronic monitoring devices and
equipment from prisoners on parole.
New section 79L describes who may remove electronic
monitoring devices and equipment and applies if a parole order is
varied to remove the requirement for electronic monitoring, a
term or condition of electronic monitoring of parole is revoked,
the parole period has ended, parole has been cancelled or the
prisoner is arrested.
15
The Bill will allow the removal of an electronic monitoring
device worn by a prisoner following the event of condition
variation, revocation, cancellation or elapse and the removal of
any equipment used for electronic monitoring at the residence of
the prisoner on parole.
New section 79L(5) requires that prison officers, escort officers,
security officers, specified officers and employees authorised
under new section 79M must only act on a direction from the
Secretary to the Department of Justice and Regulation or the
Adult Parole Board when they are removing electronic
monitoring devices worn by prisoners upon parole cancellation or
elapse or removing any equipment used for electronic monitoring
at the residence of the prisoner.
New section 79L(6) specifies that police officers have the power
to remove electronic monitoring devices for any purpose if the
devices are worn by a prisoner on parole who is taken into
custody following an arrest. For example, the device may be
removed by a police officer to ensure the safe custody of a
prisoner held in a police gaol.
The new provision inserts a requirement that before any device is
removed, the officer must inform the prisoner on parole that the
device is to be removed, and that the prisoner can consent to the
removal of the device. Further, the prisoner on parole must be
informed that if consent is not given, reasonable force may be
used to remove the device or equipment and, if the case requires,
to enter a place where the prisoner resides in order to remove
devices and equipment.
New section 79L(8) provides that if a prisoner does not consent
to the removal of an electronic monitoring device, reasonable
force may be used to remove the device from the body of the
prisoner on parole and also to enter a place where the prisoner
resides to remove the device or equipment.
The new provision specifies that the section does not affect the
power to remove an electronic monitoring device used for the
monitoring of a prisoner that was put in place to monitor
compliance with a condition of parole set out in section 74(5A)
of the Corrections Act 1986. These conditions include
monitoring to ensure compliance with any direction of the
Adult Parole Board, the requirement that the offender be
electronically monitored for up to 24 hours each day, the
16
condition that the offender must not tamper with or otherwise
interfere with the operation of the electronic monitoring device
and must accept visits by the Secretary to the place where the
prisoner resides for purposes relating to the equipment.
New section 79L(10) sets out the list of officers that may carry
out functions under the new section. These officers are police
officers, police custody officers, escort officers, security
officers, specified officers as defined in the Serious Sex
Offenders (Detention and Supervision) Act 2009 and the class
of officer created by new section 79M of the Corrections
Act 1986, which is inserted by this clause.
New section 79M allows the Commissioner for Corrections to
appoint, in writing, an employee of the Department to exercise
the powers contained in section 79L.
Clause 19 amends section 85 of the Corrections Act 1986, which contains
a number of defined terms for purposes related to community
corrections. The Bill amends the definition of the term officer so
that it also includes security officers created by clause 4 of the
Bill.
Clause 20 amends section 99A of the Corrections Act 1986 by inserting
the power for Part 9 officers to carry out or supervise drug and
alcohol testing of offenders who are subject to supervision in the
community. The drug and alcohol testing of offenders may be
conducted at community worksites and community corrections
centres or places where an offender is required to attend for
educational or any other purpose.
The Bill permits the Secretary (or delegate) to direct that
approved tests, including taking samples of urine, be conducted
or supervised by an officer within the meaning of Part 9.
These officers are listed in section 85 of the Corrections
Act 1986.
The Bill requires that the carrying out or supervision of drug
and alcohol tests by Part 9 officers is only permissible upon the
Secretary forming a reasonable belief that this is required to
ensure the accuracy and reliability of the test. In addition, the
Bill requires that, as far as practicable, a urine test must be
conducted or supervised by an officer who is the same gender
as that with which the person being tested identifies or, if the
person being tested so requests, a different gender.
17
Clause 21 inserts new Division 6A in Part 9 of the Corrections Act 1986
regarding the removal of electronic monitoring devices and
equipment from offenders on community correction orders.
The new Division concerns those staff who may remove
electronic monitoring devices and equipment when an electronic
monitoring requirement is a condition of a community correction
order, and the requirement is removed, the condition is suspended
or cancelled or the community correction order is cancelled or
otherwise ends.
As is the case for the removal of electronic monitoring devices in
relation to prisoners on parole, new section 104AAA(2) provides
that the device is to be removed as soon as practicable before or
after the requirement for the offender to be electronically
monitored ends.
New section 104AAA(4) requires that prison officers, escort
officers, community corrections officers and employees of the
Department who are authorised under new section 104AAB, may
only remove electronic monitoring devices worn by an offender,
from the residence of the offender or in possession of the
offender, at the direction of the Secretary to the Department of
Justice and Regulation.
The new provision inserts a requirement that, if practicable,
before any device is removed the officer informs the offender
that the device is to be removed and the prisoner can consent to
the removal of the device. The offender must also be informed
that if the offender does not consent, reasonable force may be
used to remove the device or equipment and, if the case requires,
the officer can enter the place where the offender resides in order
to remove devices and equipment.
New section 104AAA(6) provides that if an offender does not
consent to the removal of an electronic monitoring device,
reasonable force may be used to remove the device from the body
of the offender and may also be used to enter a place where the
offender resides to remove a device or equipment.
The new provision specifies that the section does not affect the
power to remove an electronic monitoring device used for the
monitoring of an offender that was put in place to monitor
compliance with a condition of a court order set out in
section 48LA(8) of the Sentencing Act 1991.
18
Those requirements in the Sentencing Act 1991 are compliance
with directions given by the Secretary to the Department of
Justice and Regulation, the requirement that the offender be
electronically monitored for up to 24 hours each day, the
condition that the offender must not tamper with or otherwise
interfere with the operation of the electronic monitoring device,
accept visits by the Secretary to the place where the offender
resides for purposes relating to the equipment, and comply with
any curfew requirements imposed by the court.
New section 104AAA(8) lists the officers that may carry out
functions under the new section. These are police officers, police
custody officers, prison officers, escort officers, community
corrections officers and the class of officer created by new
section 104AAB of the Corrections Act 1986 inserted by this
clause.
New section 104AAB allows the Commissioner for Corrections
to appoint, in writing, an employee of the Department of
Justice and Regulation to exercise the powers contained in
section 104AAA.
Clause 22 substitutes the reference to the definition of serious offence in
section 104AA(3) of the Corrections Act 1986. Division 7 of
Part 9 of the Corrections Act 1986 sets out the matters that the
Sentencing Advisory Council must annually report on regarding
community correction orders. The new definition of serious
offence omits the existing reference to section 77(9) of the
Corrections Act 1986, which previously defined the terms
sexual offence and serious violent offence, because these terms
are now defined in section 3 of the Corrections Act 1986 by
clause 3 of the Bill.
Clause 23 inserts a new regulation-making power amending section 112
of the Corrections Act 1986 allowing regulations to be made
concerning the allocation of the proceeds of funds retained
from earnings under an agreement between the prisoner and
the Secretary to the Department of Justice and Regulation.
The new section 112(1)(ia) further provides that the subject
of these agreements with the Secretary can include prisoner
participation in paid employment outside a prison in the
community.
19
The purpose of this regulation-making power is to allow a small
group of low risk prisoners to engage in paid employment in the
community while they also make a financial contribution from
their post-tax earnings that will be used to assist victims of crime
or their family members. This program is designed to assist
prisoners to transition into the community, reduce recidivism,
and encourage offenders to be less reliant on State and Federal
sources of support upon release. The program will also provide
a source of funding to support victims of crime or their family
members.
Clause 24 inserts new section 127A in the Corrections Act 1986 which
is a transitional provision concerning Part 2 of the Justice
Legislation Amendment (Parole Reform and Other Matters)
Act 2016.
Section 3 of the Justice Legislation Amendment (Parole
Reform and Other Matters) Act 2016 inserted section 74AAA
in the Corrections Act 1986, which commenced on
14 December 2016.
Section 74AAA placed conditions on the decision-making power
of the Adult Parole Board on whether or not to release a prisoner
on parole if the prisoner was convicted and sentenced to a term of
imprisonment with a non-parole period for the murder of a police
officer. The provision applies in respect of a prisoner convicted
and sentenced to a term of imprisonment with a non-parole
period for the murder of a person, where the prisoner knew,
or was reckless as to whether the person was, a police officer.
If an ordinary 3 member division of the Adult Parole Board
recommends parole, the decision on whether or not to make a
parole order is made by the Serious Violent Offender or Sexual
Offender Parole division of the Adult Parole Board overseen by
the Chairperson. The Adult Parole Board must also be satisfied
by a report prepared by the Secretary to the Department of Justice
and Regulation that the prisoner is in imminent danger of dying
or is seriously incapacitated and, and as a result, the prisoner no
longer has any ability to do harm to any person and does not pose
a risk to the community. The Adult Parole Board must be further
satisfied that because of those circumstances the making of the
parole order is justified.
20
New section 127A of the Corrections Act 1986 provides that,
to avoid doubt, the amendments referred to above apply to a
prisoner convicted and sentenced as mentioned in section
74AAA(1), regardless of whether, before the commencement of
those amendments, the prisoner had become eligible for parole,
the prisoner had taken any steps to ask the Board to grant the
prisoner parole, or the Board had begun any consideration of
whether the prisoner should be granted parole. The Board
may, in its discretion, treat any steps taken by a prisoner to
ask the Board to grant the prisoner parole, being steps taken
before the commencement of those amendments, as being an
application lodged with the secretary under section 74AAA(2).
New section 127A is intended to put beyond doubt that section
74AAA applies to all prisoners who meet the description in
section 74AAA(1), even if they became eligible for parole, took
any steps before that date to ask the Board to grant parole, or the
Board had begun any consideration of whether the prisoner
should be granted parole before 14 December 2016.
New section 127A only operates to clarify the point from which
section 74AAA of the Corrections Act 1986 operates, spelling
out more clearly what was always the intended position in
relation to section 74AAA. New section 127A does not extend
the operation of section 74AAA.
Clause 25 amends item 1 of Schedule 3 to the Corrections Act 1986 to
omit the words "within the meaning of section 77" from the
reference to the definition of serious violent offence in item 1
of Schedule 3 to the Corrections Act 1986. This is because
the definition of serious violent offence is now located section 3
of the Corrections Act 1986 by clause 3 of the Bill.
Clause 26 amends Schedule 4 to the Corrections Act 1986 to omit the
cross-reference to section 77(9) because the definition of
terrorism or foreign incursion offence is now located in
section 3 of the Corrections Act 1986 by clause 3 of the Bill.
21
Part 3--Amendment of the Major Crime
(Investigative Powers) Act 2004
Clause 27 amends section 18 of the Major Crime (Investigative Powers)
Act 2004 to insert new section 18(7), (9), (10), (11) and (12) to
facilitate the safe and efficient examination of a detained person
by the Chief Examiner, who may obtain an order of the Supreme
Court requiring a person in custody to submit to examination.
The amendments in the Bill will allow any police officer, police
custody officer, or escort officer to return a detained person, at
the end of an examination, to the place of detention where the
person was originally detained or to an alternative place of
detention.
The amendments provide that if the originating place of detention
was a prison, the person may be returned to any prison. If the
originating place of detention was a police goal the person may
be returned to any police goal.
The Bill confers on police custody officers the power to
supervise a detained person for the purpose of, or during, an
examination by the Chief Examiner and clarifies that in doing
so, police custody officers have all their powers and functions
in section 200I of the Victoria Police Act 2013. These powers
include the taking of reasonable steps to prevent escapes, the
maintenance of safety and welfare and the prevention of
unlawful acts.
Escort officers supervising a person for the purpose of, or during,
an examination can utilise their existing powers in section 55C of
the Corrections Act 1986. These powers also include the taking
of reasonable steps to prevent escapes, the maintenance of safety
and welfare and the prevention of unlawful acts.
New section 18(11) provides that detained persons being
supervised by a police custody officer or an escort officer remain
in the custody of the police officer who is executing the order of
the Supreme Court to bring the person before the Chief Examiner
for the purpose of an examination.
The purpose of this section is to address a lack of clarity about
the custody of prisoners if they are temporarily supervised by
Corrections Victoria escort officers, for example, during the
lunchtime adjournment or when the matter is otherwise stood
down for a temporary period during the examination.
22
New section 18(12) provides that the definition of escort officer
has the same meaning as in the Corrections Act 1986 and that
the definition of police custody officer has the same meaning as
in the Victoria Police Act 2013.
Part 4--Consequential and minor amendments
Clause 28 amends the Bail Act 1977 to insert an example below section 27
which makes reference to sections 9A(1A) and 9CA of the
Corrections Act 1986 regarding persons who can exercise the
powers of a police officer under section 27 of the Bail Act 1977.
Clause 29 amends section 200B(b) of the Victoria Police Act 2013 to
expand the duties of police custody officers to include the
supervision and transport of persons under section 18 of the
Major Crime (Investigative Powers) Act 2004. This is to
align with the expanded functions of police custody officers
set out in the amendments to section 18 of the Major Crime
(Investigative Powers) Act 2004 contained in clause 27 of the
Bill.
Part 5--Repeal of amending Act
Clause 30 provides for the automatic repeal of this amending Act on
1 August 2019. 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).
23