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SERIOUS OFFENDERS ACT 2018 (NO. 27 OF 2018) - SCHEDULE 4

Schedule 4—Savings and transitional provisions

        1     Definitions

In this Schedule—

"commencement day" means the day on which section 350 comes into operation;

"superseded Act "means the Serious Sex Offenders (Detention and Supervision) Act 2009 as in force immediately before its repeal.

        2     General transitional provisions

    (1)     Except where the contrary intention appears, this Schedule does not affect or take away from the Interpretation of Legislation Act 1984 .

    (2)     This Schedule applies despite anything to the contrary in any other provision of this Act.

        3     Eligible offender

Subject to clause 4, Section 8 applies irrespective of whether a supervision order, an interim supervision order, a detention order or an interim detention order was made under this Act or the superseded Act.

        4     Orders made under superseded Act

    (1)     A supervision order, a detention order or an interim order that was made by a court under the superseded Act and is in force immediately before the commencement day continues in force under the superseded Act until the first of the following to occur—

        (a)     the end of the period of operation of the order;

        (b)     on the revocation of the order by a court under this Act;

        (c)     on the commencement of another order under this Act that replaces the order;

        (d)     on the deportation or removal of the offender from Australia under the Migration Act 1958 of the Commonwealth;

        (e)     on the death of the offender.

    (2)     Subject to subclauses (3), (4) and (5), the superseded Act and regulations made under that Act continue to apply to an order referred to in subclause (1).

    (3)     On and from the commencement day, a supervision order or an interim supervision order referred to in subclause (1) is subject to the core conditions set out in section 31 of this Act.

    (4)     An application for review of an order referred to in subclause (1) or an application for the renewal of an order referred to in subclause (1) is to be made under this Act, including an application for renewal or review of an order made by a court under the superseded Act in respect of an offender who is not an eligible offender under this Act.

    (5)     An application referred to in subclause (4) is to be determined under this Act, including an application made in respect of an offender who is not an eligible offender under this Act.

    (6)     On an application for review or renewal of a supervision order, a detention order or an interim order referred to in subsection (1), if the court decides to confirm the order, or renew the order, as the case requires, the court must make a supervision order, a detention order, an interim supervision order or an interim detention order in respect of the offender.

        5     Applications commenced under superseded Act that have not been determined

    (1)     Subject to subclause (2), the superseded Act and regulations made under that Act continue to apply to any of the following applications that were made under the superseded Act but not determined before the commencement day—

        (a)     an application for a supervision order, a detention order or an interim order;

        (b)     an application for the renewal or extension of an order referred to in paragraph (a);

        (c)     an application for the review of an order or a condition of an order referred to in paragraph (a).

    (2)     An order made on an application referred to in subclause (1), or on appeal in respect of such an application, is to be made under this Act.

        6     Appeals

    (1)     Subject to subclause (2), the superseded Act and regulations made under that Act continue to apply to an appeal made under Part 7 of the superseded Act but not determined before the commencement day.

    (2)     An order made on an appeal referred to in subclause (1) is to be made under this Act.

        7     Appeals—remitted matters

A matter remitted by the Court of Appeal under section 101 of the superseded Act on or after the commencement day must be treated by the court to which it is remitted as if it were an application under this Act.

        8     Victim submissions

A victim submission made under the superseded Act is taken to be a victim submission made under section 134.

        9     Warrants

On and from the commencement day, a warrant that has been validly issued in accordance with a provision of the superseded Act but has not been executed is taken to have been issued in accordance with the corresponding provision of this Act.

        10     Directions and instructions

A direction or instruction given by the Authority under the superseded Act that is in force immediately before the commencement day is taken to be a direction given under Part 11.

        11     Holding power if imminent risk of contravention of order

    (1)     An offender in detention under Division 3 of Part 11 of the superseded Act on the commencement day is taken to be in detention under Division 1 of Part 12 of this Act.

    (2)     For the purposes of section 159 of this Act, detention is taken to have commenced when the offender was detained under the superseded Act.

        12     Proceeding for contravention offence

    (1)     This Act applies to a criminal proceeding for an offence against section 169 commenced on or after the commencement day, irrespective of when the offence is alleged to have been committed.

    (2)     Subject to this Schedule, the superseded Act continues to apply to a criminal proceeding commenced under section 172 of that Act before the commencement day, for an offence against section 160 of that Act, as if that Act had not been repealed.

    (3)     Division 3 of Part 12 of this Act applies to a failure to comply with a condition of an order continued in force by clause 4 as if the failure to comply were a contravention of a condition of an order referred to in section 169 of this Act.

        13     Appointment of residential facility

An appointment of a residential facility under section 133 of the superseded Act is taken to be an appointment under section 178 of this Act and may be amended or revoked as if it were an appointment under section 178.

        14     Approval of drug and alcohol test procedures

An approval of test procedures under section 157 of the superseded Act is taken to be an approval under section 214 of this Act and may be amended or revoked as if it were an approval under section 214.

        15     Change of name

    (1)     A change of name application under Part 12 of the superseded Act that has not been approved before the commencement day lapses.

    (2)     On and from the commencement day an offender who is subject to a supervision order or an interim supervision order under the superseded Act may make an application under Part 17 as if the offender were subject to a supervision order or an interim supervision order under this Act.

        16     Membership of Authority

    (1)     A member of the Authority holding office immediately before the commencement day continues to hold office after that commencement on the same terms and conditions and for the remainder of the term specified in the instrument of appointment of the member.

    (2)     Despite subclause (1), if immediately before the commencement day a person holds an acting appointment under section 192H of the superseded Act, the person continues on and from the commencement day to hold that office on an acting basis until the expiry of the acting appointment.

        17     Notices to produce or attend

On and from the commencement day, a notice to produce or a notice to attend served under Part 13A of the superseded Act is taken to be a notice to produce or a notice to attend, as the case requires, served under Division 2 of Part 20 of this Act.

        18     Responsible agencies and coordinated services plans

    (1)     On and from the commencement day, a panel established under section 192ZH of the superseded Act is taken to be a panel under section 330 of this Act.

    (2)     A coordinated services plan agreed under Part 13B of the superseded Act that is in effect immediately before the commencement day is taken, on and from the commencement day, to be a coordinated services plan under Part 21 of this Act.

        19     Corrections Act 1986—new section 130 inserted

At the end of Part 11 of the Corrections Act 1986 insert

        "     130     Transitional provisions—Serious Offenders Act 2018

    (1)     Despite the amendment of the definition of sexual offence in section 3(1) by section 355 of the Serious Offenders Act 2018

        (a)     the definitions of sexual offence in section 3(1) and the references to that definition in section 74AAB(2), (3), (5) and (7), as in force immediately before the commencement day, continue to apply to—

              (i)     prisoners who, on the commencement day, are serving a sentence of imprisonment in respect of an offence referred to in Schedule 1 to the Serious Sex Offenders (Detention and Supervision) Act 2009 ; and

              (ii)     prisoners who, on the commencement day, are on parole after having been released under section 74, in accordance with the requirements of section 74AAB, in respect of an offence referred to in Schedule 1 to the Serious Sex Offenders (Detention and Supervision) Act 2009 .

        (b)     the definitions of sexual offence in section 3(1) and the references to that definition in section 77(3) and (6), as in force immediately before the commencement day, continue to apply, as the case requires, to prisoners who, on the commencement day, are on parole after having been released under section 74, in accordance with the requirements of section 74AAB, in respect of an offence referred to in Schedule 1 to the Serious Sex Offenders (Detention and Supervision) Act 2009 .

    (2)     Despite the amendment of this Act by section 355 of the Serious Offenders Act 2018

        (a)     a person who, before the commencement day, would have been a person who was a victim within the meaning of section 30A(1) is taken to be a victim within the meaning of section 30A(1); and

        (b)     a person who was included on the victims register under section 30C immediately before the commencement day remains on the victims register, on and from the commencement day, as if the person was a victim within the meaning of section 30A(1).

    (3)     In this section—

"commencement day" means the day on which section 355 of the Serious Offenders Act 2018 comes into operation.".

        20     Disability Act 2006—new Division 3 inserted in Part 10

After section 234 of the Disability Act 2006 insert

" Division 3—Transitional provisions—Serious Offenders Act 2018

        235     Saving of orders continued in effect after commencement by Serious Offenders Act 2018

    (1)     Despite the amendment of section 152(2)(f) by section 358 of the Serious Offenders Act   2018 , section 152(2)(f) has effect, on and after the commencement day, as if a reference in that section to a supervision order or an interim supervision order within the meaning of the Serious Offenders Act   2018 included a reference to a to a supervision order or an interim supervision order that is continued in force by subclause 4(1) of Schedule 4 to the Serious Offenders Act 2018 .

    (2)     In this section—

"commencement day" means the day on which section 358 of the Serious Offenders Act 2018 comes into operation.".

        21     Sentencing Act 1991—new Schedule 3A inserted

After Schedule 3 to the Sentencing Act 2006 insert

" Schedule 3A—Transitional provisions—Serious Offenders Act 2018

        1     Saving of orders continued in effect after commencement by Serious Offenders Act 2018

    (1)     Despite the amendment of section 10AB by section 364 of the Serious Offenders Act 2018 , section 10AB has effect, on and after the commencement day, as if a reference in that section to a supervision order or an interim supervision order within the meaning of the Serious Offenders Act 2018 included a reference to a to a supervision order or an interim supervision order that is continued in force by subclause 4(1) of Schedule 4 to the Serious Offenders Act 2018 .

    (2)     In this clause—

"commencement day" means the day on which section 364 of the Serious Offenders Act 2018 comes into operation.".

        22     Sex Offenders Registration Act 2004—new section 73J inserted

After section 73I of the Sex Offenders Registration Act 2004 insert

        " 73J     Saving of orders continued in effect after commencement by Serious Offenders Act 2018

    (1)     Despite the amendment of section 61C(3)(b) and section 70J by section 365 of the Serious Offenders Act 2018 , sections 61C(3)(b) and 70J have effect, on and after the commencement day, as if a reference in those sections to a supervision order, detention order or an interim order within the meaning of the Serious Offenders Act 2018 included a reference to a supervision order, detention order or interim order that is continued in force by subclause 4(1) of Schedule 4 to the Serious Offenders Act 2018 .

    (2)     In this section—

"commencement day" means the day on which section 365 of the Serious Offenders Act 2018 comes into operation.".

        23     Surveillance Devices Act 1999—new section inserted

After section 44 of the Surveillance Devices Act 1999 insert

        " 44A     Transtional provisions—Serious Offenders Act 2018

    (1)     Despite the amendment of section 8(2)(aa) by 366 of the Serious Offenders Act 2018 , section 8(2)(aa) has effect, on and after the commencement day, as if a reference in that section to an order made under the Serious Offenders Act 2018 included a reference to a supervision order, detention order or interim order that is continued in force by subclause 4(1) of Schedule 4 to the Serious Offenders Act 2018 .

    (2)     In this section—

"commencement day" means the day on which section 366 of the Serious Offenders Act 2018 comes into operation.

        24     Wrongs Act 1958—new section 94 inserted

After section 93 of the Wrongs Act 1958 insert

" Part XIV—Transitional Provision

        94     Saving of orders continued in effect after commencement by Serious Offenders Act 2018

    (1)     Despite the amendment of section 28LAE(1) by section 370 of the Serious Offenders Act 2018 , section 28LAE(1)(a)(iv) has effect, on and after the commencement day, as if a reference in that section to a detention order or interim detention order within the meaning of the Serious Offenders Act 2018 included a reference to a detention order or an interim detention order that is continued in force by subclause 4(1) of Schedule 4 to the Serious Offenders Act 2018 .

    (2)     In this section—

"commencement day" means the day on which section 370 of the Serious Offenders Act 2018 comes into operation.".

        25     Transitional regulations

    (1)     The Governor in Council may make regulations containing provisions of a savings or transitional nature consequent on the enactment of this Act.

    (2)     Regulations under this clause have effect despite anything to the contrary in this Act (other than this Schedule).

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