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High-Risk Offenders: Post-Sentence Supervision and Detention: Final Report [2007] VicSAC 6 (2 July 2007)

High-Risk Offenders: Post-Sentence Supervision and Detention Final Report

May 2007, Sentencing Advisory Council

Contents

Preface

In May 2006, the Sentencing Advisory Council was requested by the Attorney-General, the Honourable Rob Hulls MP, to advise him on the merits of introducing a scheme that would allow for the continued detention of offenders who have reached the end of their custodial sentence, but who are considered to pose a continued and serious danger to the community. This request was made in the context of existing schemes in other jurisdictions, both in Australia and overseas, and of the scheme already operating in Victoria for extended supervision orders under the Serious Sex Offenders Monitoring Act 2005 (Vic). This Act had only been operating for a short period of time when the request was made to the Council and there has been little time to evaluate its effectiveness. A legislative scheme providing for indefinite sentences for serious and dangerous offenders has been in force in Victoria since 1993.

Special laws to deal with dangerous sex offenders have been in existence for more than a century. They vary greatly in form and in the extent of their use. Some deal with these offenders as mentally ill, some classify them as psychopaths and some as criminally dangerous. Some laws allow for indefinite detention at the commencement of sentence, some at the conclusion. Some require monitoring or supervision of offenders, or notification by offenders of their whereabouts in the community. No matter what their form, all reflect a deep anxiety about the safety of members of the community, particularly children. Over the past two decades in particular, concerns about a perceived mismatch between community safety and judicial responses have created a climate in which extraordinary measures, such as the continued detention of offenders, are now considered routine.

It is in this context that the Council released its Issues Paper entitled High-Risk Offenders: Continued Detention and Supervision Options in September 2006 and its Discussion and Options paper, entitled High-Risk Offenders: Post-Sentence Supervision and Detention, in January 2007. In both these documents, the Council canvassed both aspects of its reference—the merits of introducing a continuing detention scheme and the nature of such a scheme—but without forming a view as to either. The purpose of the papers was to provide information about Australian and overseas practice and to elicit responses from the community.

The task set for the Council by the Attorney-General, already a complex task as a matter of policy, was further complicated by recent operational developments. Although we were asked to provide advice about the merits of introducing a continued detention scheme, we believe that in essence Victoria already has such a scheme. The existing extended supervision order scheme allows for continuing renewal or extension (up to fifteen years in length), possibly for the remainder of the offender’s life. Secondly, the amendments to the Serious Sex Offenders Monitoring Act 2005 (Vic) in 2006 authorising the Adult Parole Board to direct offenders to live on land within the perimeter of Ararat Prison had the effect of making meaningless the distinction between ‘supervision in the community’ and ‘detention’.

In producing our recommendations we were aware that after the release of our Issues Paper, the Premier had committed a re-elected Bracks Government to introducing some form of continued detention scheme. Following the release of our Discussion and Options Paper, the Premier indicated that proposals to keep dangerous sexual offenders in custody were in accord with government policy.

We have also been conscious that the two-part nature of our task could lead to a misinterpretation of our view as to the merits of a continued detention scheme. Although the Attorney requested our views on the merit of a scheme, we were required to advise him about its structure whatever our views were as to the merits. This allowed the government to obtain the best advice on all aspects of the issue without foreclosing the Council’s options. The decision about whether to introduce a continued detention scheme and its nature is properly one for the government and ultimately for Parliament. The Council’s statutory function is to advise, not to legislate. We have attempted to do this as thoroughly and conscientiously as possible.

The Discussion and Options Paper was a first step. However, in that document, the Council was at pains to note that the provision of a detailed outline of a possible scheme did not imply that it had arrived at any final view about any of the terms of reference. On the contrary, the purpose of providing such a detailed paper was to enable extensive community feedback on the terms of reference, to allow the Council better to formulate its advice to the Attorney.

We have consulted widely and intensively. We have debated the issues at length, and, like the community itself, we have found ourselves deeply divided on the merits of continued detention. Our individual views are sincerely and strongly held, as are those within the community, and there is little point in attempting to reach a false consensus.

The Merits of a Continued Detention Scheme

A narrow majority of the Council has concluded that regardless of how carefully a continuing detention scheme is to be structured, the inherent dangers involved outweigh its potential benefits. This view particularly takes into account the existence of less extreme approaches to achieving community protection, such as extended supervision. Members of the Council taking this position were concerned about the inability of clinicians accurately to predict risk, the potential of such schemes to limit human rights and due process unjustifiably, the lack of evidence to support claims that continuing detention will reduce overall risks to the community, and the availability of other, more cost-effective means of reducing risk.

However, a significant minority of the Council was of the view that a continuing detention scheme should be introduced in Victoria to deal with the ‘critical few’ offenders who pose a serious risk to the safety of community members. These Council members believe such a scheme can be crafted to ensure that the competing rights and interests of offenders and of the broader community are balanced appropriately and orders made in only the most compelling cases.

The opposing arguments about the merits of a continued detention scheme are set out at length in the first part of our Report. We believe that the Report presents these comprehensively, fairly and accurately. Despite our differences in principle, there were many areas of agreement. The Council was not divided on its reform proposals, taking the view that the current Victorian legislation is inadequate. The scheme outlined in this Report provides an honest, transparent, flexible, humane and reasonable attempt to balance the community’s desire for safety against an offender’s right to be released when he or she has served the sentence, and takes into account the provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Victims’ Charter.

Even on the question of merits, the Council was in agreement about a number of matters. First, there is a small group of high-risk convicted offenders who pose a danger of committing further serious crimes. The risks represented by these offenders should be actively managed wherever possible. However, there is disagreement in the professional and broader community about whether it is possible to identify those individuals with any precision, how to manage that risk, and what the balance should be between the rights of offenders and the protection of the community.

The Research Paper, published at the same time as the Discussion and Options Paper, indicated that the community’s view of the dangerousness of sex offenders does not accord with the empirical evidence, which shows that relative risk of recorded reoffending for sex offenders is less than for many other offenders. As the New York Times recently observed, the explosion of recent laws relating to sex offenders is as much about managing public fear as it is about managing actual risks and rehabilitating people.

We were in agreement that any scheme should be narrowly targeted and not become a means of detention of people considered unpleasant, unacceptable or otherwise ungovernable. We endorse the view of the Supreme Court of Victoria, in its submission to the Council, that continued detention schemes are ‘a significant departure from fundamental principles underlying our criminal justice system’.

Secondly, we were convinced that risk assessment is a difficult task and risk prediction is uncertain. Many of us believe that the combination of potentially incorrect predictions of risk and the lack of a high degree of certainty in predictions of future offending would not justify a scheme that detains offenders beyond the end of their sentence on that basis alone.

Thirdly, we are of the view that a continued detention scheme should not be used to compensate for failure to provide offenders with access to adequate treatment during the period of their sentence. It should always be a measure of last resort. The Council considers that better use of sentencing options, preventive offences and registration schemes, enhancement of programs for managing serious offenders while under sentence, and greater experimentation with community-based programs (before, during and post-sentence) are strategies of higher priority than continued detention. Australian and overseas programs to manage high-risk groups in the community demonstrate great potential for reducing an offender’s risk and protecting the community.

Fourthly, we believe there is a strong argument for investing more resources in the pre-sentence assessment of offenders convicted of serious sexual and violent offences, to allow early identification of the risk of reoffending and to provide information to courts to take into account in sentencing. Continued detention schemes are very costly, especially where the number of offenders is large and their detention long. We are of the view that resources should be devoted to treatment of children and young people with sexual behaviour problems, and to building evidence for ‘what works’ in preventing reoffending.

Fifthly, we believe that any scheme should be honest about its intent and effect. If supervision under highly restrictive conditions is tantamount to detention, then the legislation should say so. However, we are also of the view that any scheme should be flexible and allow for the least restrictive means to be applied, consistent with the protection of the community. Council members opposed to continued detention believe that existing, less restrictive options should be evaluated before a more stringent scheme is introduced.

Finally, we recognise that the major challenge for any scheme is finding suitable community-based accommodation for offenders subject to orders. In many of the jurisdictions we surveyed there was an increasing, almost pathological, intolerance of sex offenders, making their return to the community difficult if not impossible. Detention, in some cases, was for the protection of the offender as much as of the community. Vigilantism in any form should not be tolerated in a civilised society. In some places, offenders under some form of order were required to live in such remote locations as to be effectively banished from society. This is neither rational nor fair and is ultimately counter-productive. A community’s intolerance of offenders is not a sufficient basis for the introduction of a continued detention scheme. We note that this issue remains relevant even under a continued detention scheme, because a fair scheme must allow for the eventual return of offenders to the community if and when their risk subsides. As we stress in the Report, we do not believe that detention can ever be justified on the basis of convenience alone. While the state has a legitimate right to protect its citizens, it also has an obligation to achieve community protection through the least restrictive means possible.

Proposed schemes

Our terms of reference required us to provide advice on the possible structure of a continuing detention scheme. We have done so. However, consistent with the majority view that such a scheme is not warranted, we have also provided advice on reforms of the existing extended supervision order, whose deficiencies have now become apparent. We have drawn on the experience of other jurisdictions in recommending reforms to the existing scheme and in shaping a new one. We have also considered continued detention within the broader context of schemes to protect the community from high-risk offenders.

The changes we propose are far-reaching and include innovations such as a high-risk offender order that combines detention and supervision, a High-Risk Offenders Board, and a new independent office of the Risk Management Monitor.

Reform is often expensive and we are aware of the competing demands upon the government’s scarce resources. However, as we have noted in the Report, over the past few years the government has committed significant resources to reducing sexual assault in the community. We see these proposals as another important step towards reducing the level of sexual assault, community fear, and the economic, social and emotional costs of crime.

The Council is very grateful to the people and organisations who made submissions, attended focus groups and consultative meetings, and otherwise gave of their time. The Council’s Secretariat, particularly Andrea David, Karen Gelb, Victoria Moore and Felicity Stewart, wrote multiple drafts and developed numerous models for the Council, as well as conducting and organising many consultations with the community. Few bodies can be as well served as this Council is by its Secretariat. Ms Jo Metcalf, the Chief Executive Officer, has ably managed the project throughout.

My fellow Council members have been actively and constructively engaged in what has proved to be a most challenging exercise. The positive relationships within the Council itself and between the Council and its support staff make the difficult task of developing public policy rewarding and satisfying and, we hope, productive.

Arie Freiberg, Chair, Sentencing Advisory Council

Contributors

Authors*: Ms Andrea David, Dr Karen Gelb, Ms Victoria Moore, Ms Felicity Stewart

Editor: L. Elaine Miller, Otmar Miller Consultancy Pty Ltd

Sentencing Advisory Council

Chair: Professor Arie Freiberg

Deputy-Chair: Ms Thérèse McCarthy

Council Members: Ms Carmel Arthur, Ms Carmel Benjamin AM, Mr Noel Butland, Mr Bernard Geary OAM, Mr David Grace QC, Professor Jenny Morgan, Mr Simon Overland, Mr Jeremy Rapke QC, Ms Barbara Rozenes

Chief Executive Officer: Ms Jo Metcalf

*The Council thanks Professor Bernadette McSherry who co-authored the High-Risk Offenders: Post-Sentence Supervision and Detention Discussion and Options Paper, on which parts of this Final Report are based.

The Council thanks the organisations and individuals who contributed to this report, including: The Adult Parole Board, the Australian and New Zealand Association for Psychiatry, Psychology and the Law, CASA Forum (Victorian Centres Against Sexual Assault Inc), the Crime Victims Support Association, the Criminal Bar Association, Corrections Victoria, the Council on Sex Offender Treatment (Texas), the Department of Justice, the Department of Justice Library, Disability Services Division, Legal Services and the Office of the Senior Practitioner, Department of Human Services, Forensicare, the Law Institute of Victoria, New Zealand Department of Corrections, New South Wales Department of Corrective Services, the Office of the Child Safety Commissioner, the Office of Public Prosecutions, Queensland Corrective Services, Thames Valley Probation Area (UK), Victoria Police, Victoria Legal Aid, the Victorian Bar, the Victims of Crime Assistance League (VOCAL), the Victims Support Agency and Western Australian Department of Corrective Services.

Abbreviations

A Crim R: Australian Criminal Reports

ACT: Australian Capital Territory

AJA: Acting Justice of Appeal

ALJR: Australian Law Journal Reports

All ER: All England Law Reports

ALR: Australian Law Reports

ANCOR: Australian National Child Offender Register

APB: Adult Parole Board

CASA: Centres Against Sexual Assault

CBA: Criminal Bar Association

CJ: Chief Justice

CLR: Commonwealth Law Reports

CoSA: Circles of Support and Accountability (Canada, England and US)

CPAV: Care Plan Assessments Victoria

CSC: Correctional Services of Canada

C(SSO)A: Crimes (Serious Sex Offenders) Act 2006 (NSW)

Cth: Commonwealth

DCS: Department of Corrective Services

DHS: Department of Human Services

DPP: Director of Public Prosecutions

DP(SO)A: Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)

DSM-IV: American Psychiatric Association’s Fourth Diagnostic and Statistical Manual of Mental Disorders

DSOA: Dangerous Sexual Offenders Act 2006 (WA)

DSORC: Dangerous Sexual Offenders Review Committee (WA)

DSPD Program: Dangerous and Severe Personality Disorder Program (UK)

ESO: Extended Supervision Order

ESORB: Extended Supervision Order Review Board (Vic)

HRO order: High-Risk Offender Order

HRO Board: High-Risk Offenders Board

HRO Panel: High-Risk Offenders Panel

ICCPR: International Covenant on Civil and Political Rights

IMP: Individual Management Plan

J: Justice (JJ plural)

JA: Justice of Appeal (JJA plural)

LA: Lead Authority

MACNI: Multiple and Complex Needs Initiative (Victoria)

MAPPA: Multi-Agency Public Protection Arrangements (UK)

MAPPP: Multi-Agency Public Protection Panel (UK)

MAPPS: Male Adolescent Program for Positive Sexuality (Victoria)

NSW: New South Wales

NSWCCA: New South Wales Court of Criminal Appeal

NSWSC: New South Wales Supreme Court

NT: Northern Territory

NZ: New Zealand

OCSC: Office of the Child Safety Commissioner

OLR: Order for Lifelong Restriction (Scotland)

OMP: Offender Management Plan

OPA: Office of the Public Advocate

P: President (judicial office)

QB: Law Reports, Queen’s Bench

QC: Queens Counsel

Qld: Queensland

RMA: Risk Management Authority (Scotland)

RMP: Risk Management Plan (Scotland)

s: Section (ss plural)

SA: South Australia

SASC: South Australian Supreme Court

SASR: South Australian State Reports

SCCSOP: Statewide Clinical Coordinator of the Sex Offender Program (NSW)

SCR: Canada Supreme Court Reports

SOMU: Sexual Offenders Management Unit (Vic)

SOP: Sex Offenders Program

SOPO: Sex Offender Prevention Order (UK)

SSOMA: Serious Sex Offenders Monitoring Act 2005 (Vic)

SORC: Serious Offences Review Council (NSW)

SSORC: Serious Sexual Offenders Review Committee (Qld)

STO: Supervised Treatment Order

RITO: Restricted Involuntary Treatment Order

Tas R: Tasmanian Reports

UK: United Kingdom

Vic: Victoria

VLA: Victoria Legal Aid

VR: Victorian Reports

VSC: Supreme Court of Victoria

VSCA: Supreme Court of Victoria Court of Appeal

WA: Western Australia

WAR: Western Australian Reports

YTC: Youth Training Centre

Warning to Readers

This paper contains subject matter—particularly in quotes—which may be distressing to readers or may re-traumatise people who are victims of crime.

The following Helplines may be of assistance to readers:

Lifeline: 131 114
Victims of Crime Helpline: 1800 819 817
Victims Support Agency : 03 8684 6700
Centres Against Sexual Assault: 1800 806 292
Kids Helpline: 1800 551 800

Readers may find the following publication of assistance: Victims Support Agency, A Victim’s Guide to Support Services and the Criminal Justice System. This publication is available through the Victims Support Agency or at <www.justice.vic.gov.au>.

Recommendations

Recommendation 1: Form of a Post-Sentence Scheme

1—A Reformed Extended Supervision Scheme

If a continuing detention scheme is not introduced in Victoria, the Council recommends that:

(1) The government consider reforming the scope and operation of extended supervision orders under the Serious Sex Offenders Monitoring Act 2005 (Vic) in line with the improvements suggested in Part 3 of this Report;

(2) The amendments to the Serious Sex Offenders Monitoring Act 2005 (Vic) should incorporate all of the safeguards outlined in Part 3 of this Report; and

(3) Unless otherwise indicated, existing provisions in the Serious Sex Offenders Monitoring Act 2005 (Vic) should be retained.

1—B New High-Risk Offender Scheme

If a continuing detention scheme is introduced in Victoria, the Council recommends that it should take the form recommended in Part 3 of this Report. In particular, it should incorporate all of the safeguards outlined in Part 3 of this Report.

Recommendation 2: Improving Responses to High-Risk Offenders

The Council recommends that the introduction of a new continuing detention scheme, or reformed extended supervision order scheme, should form part of a broader whole-of-government strategy to improve the management of high-risk offenders and reduce the risks to the community of reoffending. Initiatives that might form part of this strategy include:

improving the pre-sentence risk assessment process to identify high-risk offenders and to ensure that information about future risk is available to sentencers at the time of sentencing;
investing additional resources in rehabilitation and treatment programs offered in prison and in the community, and in the evaluation of such programs;
exploring the feasibility of setting up a pilot Circles of Support and Accountability program, and other programs that may increase community involvement in the reintegration, monitoring and support of offenders in the community;
investigating alternative approaches to managing the risks of offenders safely in the community, including housing strategies; and
supporting research and evaluation to increase our understanding of sexual assault, in order to assess the effectiveness of prevention strategies.

Recommendation 3: Resources and Funding

If a continuing detention scheme is introduced in Victoria, or reforms made to the Serious Sex Offenders Monitoring Act 2005 (Vic), the Council recommends that the government review the need for new recurrent funding for the implementation of the legislation, including but not limited to resources and funding for the following purposes:

to support the role of the Director of Public Prosecutions, including in making applications for new orders, reviews and appeals, and the development of guidelines;
to support the provision of funding to Victoria Legal Aid for legal assistance to offenders, including funding for hearings under the scheme, the preparation of independent psychiatric and other medical reports, and appeals;
to manage the additional caseload of the Supreme Court (and, under the Serious Sex Offenders Monitoring Act 2005 (Vic), the County Court) involved in hearing applications for orders, reviews, breach proceedings and appeals;
to establish the proposed High-Risk Offenders Board and Risk Management Monitor and to put in place the necessary infrastructure to support the work of these new bodies;
to enable Corrections Victoria to carry out its responsibilities effectively under the legislation, including the management of offenders subject to orders, the provision of support to the screening body and High-Risk Offenders Board, and the development of operating guidelines and procedures;
to investigate and fund the development of community-based accommodation and secure housing alternatives for offenders subject to post-sentence orders;
to allow for the proper assessment and treatment of offenders subject to post-sentence orders, including funding for the delivery of treatment services and evaluation of risk assessment and treatment approaches; and
to run training and information sessions for the judiciary, legal practitioners, police, mental health practitioners and others involved in the delivery of services under the legislation.

Recommendation 4: A New High-Risk Offender Scheme: an Integrated Approach

If a continuing detention scheme is introduced in Victoria the Council recommends that:

(1) Legislation be enacted to provide for an integrated system of post-sentence orders, described as a high-risk offender scheme;

(2) The high-risk offender scheme should be consistent with the following principles:

the legislation must not be designed to punish the offender, but rather to protect the community;
continuing detention should be a last resort, with a presumption in favour of the least restrictive alternative;
the scheme should be targeted primarily to offenders who are at high risk of committing serious sexual offences against either adults or children, and include offenders convicted of murder, manslaughter and attempted murder;
the state should provide the means by which an offender can meaningfully participate in rehabilitation and treatment;
the scheme should aim to provide incentives to offenders to address factors related to their risk, while recognising the purpose of community protection as paramount;
there should be independent oversight and coordination of agencies managing high-risk offenders and improved mechanisms to provide courts with the information they require;
the legislation should, as far as possible, be consistent with the Victorian Charter of Human Rights and Responsibilities and the Victims’ Charter; and
strong procedural safeguards should be built into the legislation;

(3) This high-risk offender legislation should replace the Serious Sex Offenders Monitoring Act 2005 (Vic);

(4) The legislation should incorporate all of the safeguards set out in this Report;

(5) A high-risk offender order should consist of either:

supervision, allowing the offender to be managed in the community; or
detention and supervision, allowing the offender to be detained in custody or managed in the community, as appropriate.

Recommendation 5: Transitional Issues

If a high-risk offender scheme is introduced in Victoria, the Council recommends that:

(1) The Supreme Court should review all extended supervision orders as soon as practicable after commencement of the high-risk offender legislation to determine whether each offender should be made the subject of a high-risk offender order under the new provisions, and the type of order (i.e. a supervision high-risk offender order or a detention and supervision high-risk offender order).

(2) The legislation should incorporate a mechanism to preserve the validity of existing extended supervision orders pending that Supreme Court review.

Recommendation 6: Purpose

6—A Reformed Extended Supervision Scheme

(1) The purpose of a reformed extended supervision scheme under section 1 of the Serious Sex Offenders Monitoring Act 2005 (Vic) should be ‘to enhance community protection by providing for the care and supervision in the community of high-risk offenders and by providing for their treatment and rehabilitation’.

(2) The purpose of conditions of orders under section 15(2) of the Serious Sex Offenders Monitoring Act 2005 (Vic) should be the same as those of the legislation (to enhance community protection by providing for the care and supervision in the community of high-risk offenders and by providing for their treatment and rehabilitation).

6—B New High-Risk Offender Scheme

(1) The purpose of the new high-risk offender legislation should be to enhance community protection by providing for the care and control of high-risk offenders and by providing for their treatment and rehabilitation.

(2) The purpose of conditions of orders should be the same as those of the legislation (to enhance community protection by providing for the care and control of high-risk offenders and by providing for their treatment and rehabilitation).

Recommendation 7: Scope of the Scheme: Eligible Offenders

7—A Reformed Extended Supervision Scheme

(1) The same general eligibility criteria as set out under section 4 of the Serious Sex Offenders Monitoring Act 2005 (Vic) should apply to a reformed extended supervision order scheme. In addition, offenders under 21 years at the time an application is made should not be eligible for an extended supervision order. An offender under an existing extended supervision order should be eligible for a new extended supervision order.

(2) Relevant offences should be defined as:

‘serious sexual offences’ as defined in Schedule 1 of the Sentencing Act 1991 (Vic) (see further Appendix 2, column 2); and
murder, manslaughter and attempted murder.

(3) If offenders with intellectual disabilities and offenders with a low level of intellectual functioning continue to be eligible for extended supervision orders, special arrangements should be put into place to ensure that the risk that these offenders present is dealt with in a manner that takes into account their particular circumstances.

7—B New High-Risk Offender Scheme

(1) The same general eligibility criteria as set out under section 4 of the Serious Sex Offenders Monitoring Act 2005 (Vic) should apply to a new high-risk offender scheme. In addition, offenders under 21 years at the time an application is made should not be eligible for a high-risk offender order. An offender under an existing high-risk offender order should be eligible for a new high-risk offender order.

(2) Relevant offences should be defined as:

‘serious sexual offences’ as defined in Schedule 1 of the Sentencing Act 1991 (Vic) (see further Appendix 2, column 2); and
murder, manslaughter and attempted murder.

(3) If offenders with intellectual disabilities and offenders with a low level of intellectual functioning are eligible for high-risk offender orders, special arrangements should be put into place to ensure that the risk that these offenders present is dealt with in a manner that takes into account their particular circumstances.

Recommendation 8: Screening of Offenders

8—A Reformed Extended Supervision Scheme

(4) Eligible offenders should be screened by means of administrative processes established by the Department of Justice for this purpose.

(5) The Extended Supervision Order Review Board should make recommendations to the Director of Public Prosecutions about who should be the subject of an application and the reasons for those recommendations.

(6) Membership of the Extended Supervision Order Review Board should be determined by the Department of Justice. Consideration should be given to expanding the membership of the Board to include a Victoria Police representative.

(7) The Adult Parole Board should be permitted to refer eligible offenders to the Extended Supervision Order Review Board for review.

8—B New High-Risk Offender Scheme

(1) Eligible offenders should be screened by means of administrative processes established by the Department of Justice for this purpose.

(2) The Extended Supervision Order Review Board should be renamed the High-Risk Offender Screening Committee.

(3) The High-Risk Offender Screening Committee should make recommendations to the Director of Public Prosecutions about who should be the subject of an application and the reasons for those recommendations.

(4) Membership of the High-Risk Offender Screening Committee should be determined by the Department of Justice. Consideration should be given to expanding the membership of the Committee to include a Victoria Police representative.

(5) The Adult Parole Board should be permitted to refer eligible offenders to the High-Risk Offender Screening Committee for review.

Recommendation 9: Risk Assessment and Accreditation

9—A Reformed Extended Supervision Scheme

(1) A system for accrediting people authorised to conduct assessments under the Serious Sex Offenders Monitoring Act 2005 (Vic) should be established.

(2) Accreditation should be limited to psychologists or psychiatrists who have specific expertise in the area of sexual offending and/or serious violent offending and who have a demonstrated understanding of the issues involved in assessing risk.

(3) Section 7 of the Serious Sex Offenders Monitoring Act 2005 (Vic) should be amended to state that an assessment report can only be prepared by a person accredited for these purposes.

(4) The screening body should arrange for at least one assessment report to be prepared by an assessor accredited under the scheme. A copy of this report should be provided to the Director of Public Prosecutions.

(5) The Director of Public Prosecutions should be permitted to request the Extended Supervision Order Review Board to arrange additional reports if required.

(6) The Secretary to the Department should continue to have the power to direct an offender to have a personal examination, as provided for under section 7A of the Serious Sex Offenders Monitoring Act 2005 (Vic). This power should be exercised on the advice of the Extended Supervision Order Review Board.

(7) The court to which an application is made should continue to have the power to order an offender to attend for a personal examination by a medical expert or any other person, as provided for under section 28 of the Serious Sex Offenders Monitoring Act 2005 (Vic). Assessments ‘by a medical expert’ should only be permitted to be conducted by a person accredited for this purpose under the scheme.

(8) Standards and guidelines should be developed for risk assessments conducted under the Serious Sex Offenders Monitoring Act 2005 (Vic). These standards and guidelines should include guidance on:

who is permitted to prepare an assessment report;
how information required for assessments is to be gathered;
the assessment process;
information to be included in the assessment report; and
the form in which assessment reports are to be produced.

9—B New High-Risk Offender Scheme

(1) A system for accrediting people authorised to conduct assessments under the new scheme should be established.

(3) The screening body (the High-Risk Offenders Screening Committee) should arrange for at least one assessment report to be prepared by an assessor accredited under the scheme. A copy of this report should be provided to the Director of Public Prosecutions.

(4) The Director of Public Prosecutions should be permitted to request the screening body to arrange additional reports if required.

(5) The Secretary should have a power, as currently exists under section 7A of the Serious Sex Offenders Monitoring Act 2005 (Vic), to direct an offender to see a specified medical practitioner for a personal examination. This power should be exercised on the advice of the screening body (High-Risk Offenders Screening Committee).

(6) The Supreme Court should have the power to order an offender to attend for a personal examination by a medical expert or any other person, as provided for under section 28 of the Serious Sex Offenders Monitoring Act 2005 (Vic). Assessments ‘by a medical expert’ should only be permitted to be conducted by a person accredited for this purpose under the scheme.

(7) Standards and guidelines should be developed for risk assessments conducted under the new scheme. These standards and guidelines should include guidance on:

who is permitted to prepare an assessment report;
how information for assessments is to be gathered;
the assessment process;
information to be included in the assessment report; and
the form in which assessment reports are to be produced.

Recommendation 10: Risk Management Monitor

(1) Consideration should be given to establishing a new independent office of the Risk Management Monitor.

(2) The person appointed to this office should be a senior clinician with experience in sex offender treatment and risk assessment.

(3) The functions of the Risk Management Monitor should include:

contributing to policy and practice in the area of risk assessment and management;
undertaking and commissioning research on risk assessment methods, and best-practice treatment interventions with high-risk sexual and violent offenders;
developing guidelines and standards with respect to risk assessment reports and risk management plans;
accrediting those authorised to make risk assessments under the scheme;
auditing and monitoring the adequacy of treatment interventions;
providing information and advice to the screening body, the High-Risk Offenders Board and the responsible Minister on risk assessment, treatment and management issues, including possible improvements; and
providing education and training for practitioners and service providers in risk assessment and risk management.

(4) The Risk Management Monitor should be given any special powers necessary to perform his or her functions effectively, such as the power:

to visit and inspect any part of the premises where treatment and other services are being provided to a person under the management of the High-Risk Offenders Board, other than a private residence;
to investigate, audit and monitor treatment interventions in relation to high-risk offenders;
to see any person involved in the delivery of services to offenders under the management of the High-Risk Offenders Board;
to inspect and make copies of, or take extracts from, any document relating to arrangements for the treatment and management of offenders under the High-Risk Offenders Board; and
to request information from Corrections Victoria and others involved in the treatment and management of the offender.

Recommendation 11: Establishment of a High-Risk Offenders Board

11—A Reformed Extended Supervision Scheme

(1) Consideration should be given to establishing a High-Risk Offenders Board. This Board, if established, should have responsibility for managing high-risk offenders subject to extended supervision orders.

(2) If a High-Risk Offenders Board is not established, consideration should be given to other approaches that could assist in the management of offenders subject to extended supervision in the community. Possible approaches might include, for example:

the establishment of an interdepartmental committee to oversee and coordinate the development and delivery of services to offenders subject to extended supervision orders;
the establishment of local multidisciplinary offender management teams with representatives of Corrections Victoria, Victoria Police, the Department of Human Services, and other agencies and individuals involved in providing support and services to offenders in regions where offenders are housed.

11—B New High-Risk Offender Scheme

A High-Risk Offenders Board should be established. This Board should have responsibility for managing high-risk offenders subject to high-risk offender orders.

Recommendation 12: High-Risk Offenders Board—Procedures

(1) The High-Risk Offenders Board should be governed by the same arrangements that currently govern the operation of the Adult Parole Board, for example:

The Board should not be bound by the rules of natural justice;
There should be no provision for appeals on the merits of board decisions.

(2) The High-Risk Offenders Board should as far as possible operate consistently with the principles of natural justice.

Recommendation 13: High-Risk Offenders Board—Role and Powers

(1) The High-Risk Offenders Board should be given the same functions and powers as the Adult Parole Board under the Corrections Act 1986 (Vic) for offenders on HRO orders, to enable the effective management of relevant offenders while on parole (during sentence) and post-sentence while on an HRO order.

(2) The additional functions and powers of the Board specific to its role in managing high-risk offenders should include:

to approve and review Offender Management Plans;
to set the conditions of orders and to review and vary the conditions of orders;
to oversee the compliance of offenders with the conditions of their orders and their obligations under Offender Management Plans; and
to oversee the delivery of services under Offender Management Plans, including, if necessary, issuing directions to agencies involved in the delivery of these services.

(3) As soon as practicable after a high-risk offender order is imposed, the Lead Authority should be required to prepare a draft Offender Management Plan and submit it to the High-Risk Offenders Board for approval.

(4) The Offender Management Plan should clearly set out all the conditions of the order and obligations of the offender, as well as the requirements of the Lead Agency and other agencies. It also should nominate a Case Manager. In developing the Offender Management Plan, the Lead Agency should be required to consult any agencies that will be given responsibilities under the plan.

(5) Once the High-Risk Offenders Board has approved the Offender Management Plan, the Case Manager should be responsible for coordinating the implementation of the plan and reporting to the High-Risk Offenders Board about an offender’s progress.

(6) The High-Risk Offenders Board should be required to review the offender’s progress under the Offender Management Plan and the delivery of services under the plan by the Lead Agency and other relevant agencies at least once a year.

(7) The Lead Agency, other agencies and the offender should be permitted to apply to the High-Risk Offenders Board for the Offender Management Plans to be amended. The High-Risk Offenders Board should also be permitted to amend the Offender Management Plan on review.

(8) To assist in the management and support of offenders in the community, consideration should be given to establishing local multidisciplinary offender management teams. These teams could be set up by an offender’s Case Manager based in the region in which the offender is housed, and could include representatives of Corrections Victoria, Victoria Police, and other agencies and individuals involved in providing support, treatment and other services to the offender.

Recommendation 14: High-Risk Offenders Board—Composition

(1) The membership of the High-Risk Offenders Board should be determined in consultation with the Adult Parole Board, the Department of Justice and other relevant stakeholders.

(2) A current or retired Supreme Court judge should be appointed to chair the Board. The Deputy Chairperson should be a judicial officer or an experienced legal practitioner.

(3) The Board should also include community representatives, including at least one member representing the interests and views of victims of crime.

Recommendation 15: Body Responsible for Applying for an Order

15—A Reformed Extended Supervision Scheme

(1) The Director of Public Prosecutions, rather than the Secretary to the Department of Justice, should determine whether or not an application for an extended supervision order should be made.

(2) The Director of Public Prosecutions, rather than the Secretary to the Department of Justice, should have the power under section 5 of the Serious Sex Offenders Monitoring Act 2005 (Vic) to make an application for an extended supervision order.

(3) All relevant powers and responsibilities given to the Secretary to the Department of Justice that relate to the making of an application under the Serious Sex Offenders Monitoring Act 2005 (Vic) should be assigned to the Director of Public Prosecutions.

15—B New High-Risk Offender Scheme

(1) The Director of Public Prosecutions should determine whether or not an application for an high-risk offender order should be made.

(2) The Director of Public Prosecutions should have the power to apply for a high-risk offender order under the new scheme.

Recommendation 16: Timing of Applications and Commencement of Orders

16—A Reformed Extended Supervision Scheme

(1) An application for an extended supervision order should only be permitted to be made:

while an offender is serving a custodial sentence for a relevant offence (a ‘relevant sentence’), or is serving another custodial sentence served concurrently with, or cumulatively on, a relevant sentence or on another sentence that was uncompleted at the time the relevant sentence was completed (as currently provided under section 4(1)(b) of the Serious Sex Offenders Monitoring Act 2005 (Vic)); or
while an offender is subject to a current extended supervision order.

(2) The Serious Sex Offenders Monitoring Act 2005 (Vic) should provide that the application must be made before the offender’s earliest release date, unless new adverse evidence about the offender’s risk which warrants a late application becomes available after this time.

(3) The initial extended supervision order should commence at the expiry of the offender’s sentence. Subsequent orders should commence immediately on the making of the order and should replace the earlier order.

(4) If the application for an extended supervision order made prior to the end of the offender’s sentence is granted, the court should direct that the management of the offender be transferred to the High-Risk Offenders Board (if established) upon expiry of the offender’s non-parole period. Where the offender has already become eligible for parole, or has had no non-parole period fixed as part of his or her sentence, then management of the offender should be transferred to the High-Risk Offenders Board immediately.

(5) The continuing need for the extended supervision order and conditions of the order (if the court sets conditions) must be reviewed before the expiry of the offender’s sentence.

16—B New High-Risk Offender Scheme

(1) The high-risk offender legislation should provide that an application for a high-risk offender order should only be permitted to be made:

while an offender is serving a custodial sentence for a relevant offence (a ‘relevant sentence’), or is serving another custodial sentence served concurrently with, or cumulatively on, a relevant sentence or on another sentence that was uncompleted at the time the relevant sentence was completed (as currently provided under section 4(1)(b) of the Serious Sex Offenders Monitoring Act 2005 (Vic)); or
while an offender is subject to a current high-risk offender order.

(2) The legislation should provide that the application must be made before the offender’s earliest release date unless new adverse evidence about the offender’s risk which warrants a late application becomes available after this time.

(3) If the application for a high-risk offender order made prior to the end of the offender’s sentence is granted, the court should direct that the management of the offender is transferred to the High-Risk Offenders Board upon expiry of the offender’s non-parole period. Where the offender has already become eligible for parole, or has had no non-parole period fixed as part of his or her sentence, then management of the offender should be transferred to the High-Risk Offenders Board immediately.

(4) Before the expiry of the offender’s sentence, the court must review the continuing need for the high-risk offender order.

(5) If the court determines that the high-risk offender order is still warranted, it must at this stage decide the nature of the order (i.e. a supervision HRO order or a detention and supervision HRO order).

(6) The initial high-risk offender order should commence at the expiry of the offender’s sentence. Second or subsequent orders should commence immediately on the making of the order and replace the previous order.

Recommendation 17: Test, Onus and Standard of Proof

17—A Reformed Extended Supervision Scheme

(1) The current test for extended supervision orders under section 11(1) of the Serious Sex Offenders Monitoring Act 2005 (Vic) should be replaced with a test based on section 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). As in Queensland, the standard of proof should be a high degree of probability.

(2) Section 11(3) of the Serious Sex Offenders Monitoring Act 2005 (Vic) should be amended to require a court, in determining whether there is an unacceptable risk that the offender will reoffend if not made subject to an extended supervision order, to have regard to—

(a) the risk the offender would pose to the community if an extended supervision order were not made, taking into account:

the nature of and the circumstances of the offender’s commission of the previous offence or offences;
the pattern and progression of offending behaviour on the part of the offender;
the offender’s character, relevant background, age, health or medical conditions;
efforts made to date by the offender to address the causes of his or her offending behaviour, including whether he or she has actively participated in any rehabilitation programs, and if not, the reasons for this;
any assessment report, filed in court, whether by or on behalf of the Director of Public Prosecutions or the offender (including any information in that report relevant to the matters outlined above);
any other report made or evidence given by a medical expert (including any information in that report relevant to the matters outlined above);

(b) the need to protect the community from this risk; and

(c) whether there are any less restrictive means of managing the offender’s risk other than making an extended supervision order.

(0) Under section 11(2) of the Serious Sex Offenders Monitoring Act 2005 (Vic), the Director of Public Prosecutions, rather than the Secretary to the Department of Justice, should have the onus of proving the test.

(1) As section 11(5) of the Serious Sex Offenders Monitoring Act 2005 (Vic) currently provides, the offender and the person making the application should have the right to dispute evidence, including any report filed in whole or in part, and to lead evidence on the disputed matters, and in the case of reports filed, to cross-examine the author of the report on its contents, in any applications under the scheme.

(2) The court should continue to be permitted, under section 34 of the Serious Sex Offenders Monitoring Act 2005 (Vic), in hearing and determining any applications under the Act, to have regard to:

whether the offender cooperated—or cooperated fully—in the preparation of any assessment report;
if the offender did not cooperate—or did not cooperate fully—in the report preparation, his or her reasons for this;
whether the report was made without a personal examination of the offender; and
anything else that it considers appropriate.

17—B New High-Risk Offender Scheme

(1) The legislation should adopt a test for the making of a high-risk offender order based on section 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). As in Queensland, the standard of proof should be a high degree of probability.

(2) Before making a detention and supervision high-risk offender order, the court must be satisfied that adequate supervision of the offender could not be provided by supervision alone.

(3) In determining whether there is an unacceptable risk that the offender will reoffend if not made subject to a high-risk offender order, the court should be required to have regard to—

(a) the risk the offender would pose to the community if a high-risk offender order is not made, taking into account:

the nature of and the circumstances of the offender’s commission of the previous offence or offences;
the pattern and progression of offending behaviour on the part of the offender;
the offender’s character, relevant background, age, health or medical conditions;
efforts made to date by the offender to address the causes of his or her offending behaviour, including whether he or she has actively participated in any rehabilitation programs, and if not, the reasons for this;
any assessment report, filed in court, whether by or on behalf of the Director of Public Prosecutions or the offender (including any information in that report relevant to the matters outlined above);
any other report made or evidence given by a medical expert (including any information in that report relevant to the matters outlined above);

(b) the need to protect members of the community from this risk; and

(c) whether there are any less restrictive means of managing the offender’s risk other than making a high-risk offender order.

(4) The Director of Public Prosecutions should have the onus of proving the test.

(5) The offender and the Director of Public Prosecutions should have the right to dispute evidence, including any report filed in whole or in part, and to lead evidence on the disputed matters, and in the case of reports filed, to cross-examine the author of the report on its contents, in any applications under the scheme.

(6) The court should be permitted, in hearing and determining an application in relation to a high-risk offender order, to have regard to:

whether the offender cooperated—or cooperated fully—in the preparation of any assessment report;
if the offender did not cooperate—or did not cooperate fully—in the report preparation, his or her reasons for this;
whether the report was made without a personal examination of the offender; and
anything else that it considers appropriate.

Recommendation 18: Right to be Heard and to Legal Representation and Assistance

18—A Reformed Extended Supervision Scheme

(1) As provided for under section 29 of the Serious Sex Offenders Monitoring Act 2005 (Vic), the offender should be required to be present at the hearing of an application unless the offender acts in a way that makes the hearing in his or her presence impracticable, in which case the court has the power to order that the offender be removed and the hearing continued in the offender’s absence.

(2) As provided for under section 29(3) of the Serious Sex Offenders Monitoring Act 2005 (Vic), if the offender is unable to be present at a hearing because of illness or for any other reason, the court should have the power to proceed with the hearing in the offender’s absence if satisfied that doing so will not prejudice the offender’s interests, and that the interests of justice require that the hearing should proceed even in the offender’s absence.

(3) The current entitlement of an offender to legal representation under section 33 of the Serious Sex Offenders Monitoring Act 2005 (Vic) should be retained. The court should only be permitted to hear the application if satisfied that the offender has had a reasonable opportunity to obtain legal representation.

(4) The offender should be entitled to legal assistance in accordance with the Legal Aid Act 1978 (Vic) and the guidelines fixed by the Board of Victoria Legal Aid including assistance for:

all mandatory hearings under the scheme, including applications for orders and the initial review;
all applications by the Director of Public Prosecutions, for example an appeal or an application for a review of the order by the Director;
the offender’s applications for review where there are reasonable grounds for the application;
appeals by the offender where there are reasonable grounds for the appeal; and
psychiatric and other medical reports.

In addition, if an HRO Board is not established, the offender should be entitled to legal assistance for applications for the review of conditions of an extended supervision order where there are reasonable grounds for the application.

18—B New High-Risk Offender Scheme

(1) The offender should be present at the hearing of an application unless the offender acts in a way that makes the hearing in his or her presence impracticable, in which case the court should have the power to order that the offender be removed and the hearing continued in the offender’s absence.

(2) If the offender is unable to be present at a hearing because of illness or for any other reason, the court should have the power to proceed with the hearing in the offender’s absence if satisfied that doing so will not prejudice the offender’s interests, and that the interests of justice require that the hearing should proceed even in the offender’s absence.

(3) The offender should be entitled to be legally represented at the hearing of any applications under the scheme and the court may only begin to hear the application if satisfied that the offender has had a reasonable opportunity to obtain legal representation.

(4) The offender should be entitled to legal assistance in accordance with the Legal Aid Act 1978 (Vic) and the guidelines fixed by the Board of Victoria Legal Aid, including assistance for:

all mandatory hearings under the scheme, including applications for orders and the initial review;
all applications by the Director of Public Prosecutions, for example an appeal or an application for a review of the order;
the offender’s applications for review (including a review of the nature of the order) where there are reasonable grounds for the application;
appeals by the offender where there are reasonable grounds for the appeal; and
psychiatric and other medical reports.

Recommendation 19: Role of Victims

19—A Reformed Extended Supervision Scheme

(1) The Director of Public Prosecutions should be required to make all reasonable efforts to notify a person included on the Victims Register of an application, and the outcome of the application, for an extended supervision order.

(2) As is currently provided for under section 16A of the Serious Sex Offenders Monitoring Act 2005 (Vic), a person included on the Victims Register should be permitted to make a submission on the types of conditions that may be given to an offender who is subject to an extended supervision order.

(3) The body responsible for setting conditions should be required, as the Adult Parole Board currently is under section 16B of the Serious Sex Offenders Monitoring Act 2005 (Vic), to consider any submission made in relation to the matter and should be permitted to give that submission the weight that it sees fit in deciding upon what conditions should be set.

(4) The body responsible for setting conditions should have the same obligations as the Adult Parole Board under section 16B of the Serious Sex Offenders Monitoring Act 2005 (Vic) relating to the disclosure of victims’ submissions. Under section 16B of the Act, the Adult Parole Board must not release a victim’s submission to an offender unless doing so is in the interests of fairness and justice and the court has asked the victim whether he or she:

consents to the submission being provided to the offender;
wishes to amend the submission so that it can be provided to the offender; or
wishes to withdraw the submission.

If the victim does not agree, the Adult Parole Board must not release a copy to the offender but may reduce the weight it otherwise would have given the victim’s submission.

(5) Consideration should be given to establishing a process for informing victims about the information in a case that has been suppressed and clearly explaining to victims the consequences of disclosing such information.

19—B New High-Risk Offender Scheme

(2) A person included on the Victims Register should be permitted to make a submission on the types of conditions that may be given to an offender who is subject to a high-risk offender order. The High-Risk Offenders Board should be required to consider any victim’s submission in relation to the matter; and allowed to give that submission the weight that it sees fit in deciding what conditions should be set.

(3) The High-Risk Offenders Board should not give a victim’s submission to the offender unless doing so is in the interests of fairness and justice and the Board has asked the victim whether he or she:

consents to the submission being provided to the offender;
wishes to amend the submission so that it can be provided to the offender; or
wishes to withdraw the submission.

If the victim does not agree, the Board must not release a copy to the offender but may reduce the weight it otherwise would have given the victim’s submission.

(4) Consideration should be given to establishing a process for informing victims about the information in a case that has been suppressed and clearly explaining to victims the consequences of disclosing such information.

Recommendation 20: Interim Orders

20—A Reformed Extended Supervision Scheme

(1) If an application for an extended supervision order is made while an offender is serving a relevant sentence or under an existing extended supervision order, the court should be permitted to continue to deal with and determine the application even if, since it was made, the offender has ceased to be an eligible offender because his or her custodial sentence or existing extended supervision order has expired.

(2) The court and the Court of Appeal should be permitted to compel an offender to attend any hearings that will take place after his or her sentence or existing extended supervision order is due to expire.

(3) The court should be permitted to make an interim extended supervision order if satisfied that:

the offender’s sentence or existing extended supervision order will expire before the proceedings are determined;
the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order; and
it is in the interests of justice to do so, taking into account the reasons why the application was not finalised before the expiry of the offender’s sentence or existing extended supervision order.

(4) The Court of Appeal should also be permitted to make an interim order if satisfied that:

it is appropriate to quash an existing order concerning the making of an extended supervision order, and to remit the matter back to the original court for rehearing; and
the offender is no longer under sentence, or the offender’s sentence or existing extended supervision order will expire before the proceedings are determined.

(5) The maximum length of an interim order should be 28 days. The interim order should be renewable but the total cumulative period should not exceed three months.

(6) In an application for an interim order, the offender should be permitted to tender evidence and challenge evidence tendered by the applicant in support of the application.

(7) The use of interim orders should be closely monitored and reported on in annual reports recommended under the scheme. The number of cases in which an interim order was made should be considered when the scheme is evaluated.

20—B New High-Risk Offender Scheme

(1) The legislation should provide that if an application for a high-risk offender order is made while an offender is serving a relevant sentence or under an existing high-risk offender order, the court should be permitted to continue to deal with and determine the application even if, since it was made, the offender has ceased to be an eligible offender because his or her custodial sentence or existing high-risk offender order has expired.

(2) The court and the Court of Appeal should be permitted to compel an offender to attend any hearings that will take place after his or her sentence or existing high-risk offender order is due to expire.

(3) The court should be permitted to make an interim high-risk offender order if satisfied that:

the offender’s sentence or existing high-risk offender order will expire before the proceedings are determined;
the matters alleged in the supporting documentation would, if proved, justify the making of an high-risk offender order; and
it is in the interests of justice to do so, taking into account the reasons why the application was not finalised before the expiry of the offender’s sentence or existing high-risk offender order.

(4) The Court of Appeal should also be permitted to make an interim order if satisfied that:

it is appropriate to quash an existing order concerning the making of a high-risk offender order, and to remit the matter back to the original court for rehearing; and
the offender is no longer under sentence, or the offender’s sentence or existing high-risk offender order will expire before the proceedings are determined.

(5) Before making an interim detention and supervision high-risk offender order, the court must be satisfied that adequate supervision of the offender could not be provided by supervision alone.

(6) The maximum length of an interim order should be 28 days. The interim order should be renewable but the total cumulative period should not exceed three months.

(7) In an application for an interim order, the offender should be permitted to tender evidence and challenge evidence tendered by the applicant in support of the application.

(8) The use of interim orders should be closely monitored and reported on in annual reports recommended under the scheme. The number of cases in which an interim order was made should be considered when the scheme is evaluated.

Recommendation 21: Directions Hearings

21—A Reformed Extended Supervision Scheme

(1) As provided under section 27 of the Serious Sex Offenders Monitoring Act 2005 (Vic), the court should be permitted to set a date for a directions hearing to be conducted in relation to the hearing of applications under the scheme.

(2) As provided under section 32 of the Serious Sex Offenders Monitoring Act 2005 (Vic), the court should be permitted, either on the application of a party to the proceeding or without any such application, to adjourn the hearing of the proceeding—

to such times and places;
for such purposes; and
on such terms as to costs or otherwise—
as it considers necessary or just in the circumstances.

21—B New High-Risk Offender Scheme

(1) Similar to the provision made in section 27 of the Serious Sex Offenders Monitoring Act 2005 (Vic), the court should be permitted to set a date for a directions hearing to be conducted in relation to the hearing of applications under the scheme.

(2) Similar to the provision made in section 32 of the Serious Sex Offenders Monitoring Act 2005 (Vic) the court should be permitted, either on the application of a party to the proceeding or without any such application, to adjourn the hearing of the proceeding—

to such times and places;
for such purposes; and
on such terms as to costs or otherwise—

as it considers necessary or just in the circumstances.

Recommendation 22: Who should make the order?

22—A Reformed Extended Supervision Scheme

(1) As currently provided under section 5(2) of the Serious Sex Offenders Monitoring Act 2005 (Vic), applications for extended supervision orders should be made to the sentencing court (where the sentencing court was the Magistrates’ Court, the application should be made to the County Court).

(2) The application should be determined by a single judge of that court.

22—B New High-Risk Offender Scheme

(1) Only the Supreme Court should be empowered to hear and determine applications for high-risk offender orders.

(2) Applications should be determined by a single judge of the Supreme Court.

Recommendation 23: Conditions of Orders

23—A Reformed Extended Supervision Scheme

(1) If a High-Risk Offenders Board is established, the core conditions of an extended supervision order should be prescribed in the legislation and should require the offender:

not to commit, whether in or outside Victoria, another relevant offence or an offence that, if committed in Victoria, would be a relevant offence;
to attend at any place as directed by the Board for the purpose of supervision, assessment or monitoring;
to report to, and receive visits from, the Board or any person nominated by the Board for the purposes of this paragraph;
to notify the Board of any change of name or employment at least two clear working days before the change;
not to move to a new address without the prior written consent of the Board;
not to leave Victoria except with the permission of the Board granted either generally or in relation to the particular case; and
to obey all lawful instructions and directions of the Board or any person nominated by the Board.

(2) If a High-Risk Offenders Board is not established, the core conditions of an extended supervision order should be prescribed in the legislation, and should require the offender:

not to commit, whether in or outside Victoria, another relevant offence or an offence that, if committed in Victoria, would be a relevant offence;
to attend at any place as directed by the Secretary for the purpose of supervision, assessment or monitoring;
to report to, and receive visits from, the Secretary or any person nominated by the Secretary for the purposes of this paragraph;
to notify the Secretary of any change of name or employment at least two clear working days before the change;
not to move to a new address without the prior written consent of the Secretary;
not to leave Victoria except with the permission of the Secretary granted either generally or in relation to the particular case; and
to obey all lawful instructions and directions of the Secretary or any person nominated by the Secretary.

(2) Additional conditions should be set by either the High-Risk Offenders Board if established, or alternatively, by the court making the order. These conditions should be the same as those instructions and directions currently set out under section 16(3) of the Serious Sex Offenders Monitoring Act 2005 (Vic).

23—B New High-Risk Offender Scheme

(1) The core conditions of a high-risk offender order (a supervision high-risk offender order, or a detention and supervision high-risk offender order, during periods where the offender is being supervised in the community), should be prescribed in the legislation and should provide that the offender:

not commit, whether in or outside Victoria, another relevant offence or an offence that, if committed in Victoria, would be a relevant offence;
attend at any place as directed by the Board for the purpose of supervision, assessment or monitoring;
report to and receive visits from the Board or any person nominated by the Board for the purposes of this paragraph;
notify the Board of any change of name or employment at least two clear working days before the change;
not move to a new address without the prior written consent of the Board;
not leave Victoria except with the permission of the Board granted either generally or in relation to the particular case; and
obey all lawful instructions and directions of the Board or any person nominated by the Board.

(2) Additional conditions should be set by the High-Risk Offenders Board. These conditions should be the same as those instructions and directions currently set out under section 16(3) of the Serious Sex Offenders Monitoring Act 2005 (Vic).

Recommendation 24: Accommodation of Offenders

24—A Reformed Extended Supervision Scheme

(1) If a High-Risk Offenders Board is established, the Board should have responsibility for overseeing the environmental scanning process to locate appropriate housing for offenders and for approving final accommodation arrangements.

(2) Offenders on extended supervision orders should be supervised in the community. The current arrangements—which authorise directing offenders to live on land that is situated within the perimeter of the prison but that does not form part of the prison itself—should be reviewed and alternative options for housing offenders in the community explored as a matter of priority.

(3) Consideration should be given to the establishment of alternative housing arrangements for high-risk offenders (whether subject to extended supervision or on parole), such as ‘halfway houses’ or transitional centres.

24—B New High-Risk Offender Scheme

(1) If the high-risk order specifies that the offender is managed by way of detention and supervision, there should be a presumption that the offender should be housed wherever it is considered that his or her rehabilitation needs can best be met, taking into account community protection concerns and the least restrictive means of managing the offender’s risk.

(2) The High-Risk Offenders Board should have responsibility for overseeing the environmental scanning process to locate appropriate housing for offenders and for approving final accommodation arrangements.

(3) If an offender is on a detention and supervision high-risk offender order, the High-Risk Offenders Board has the power to direct that the offender be detained.

(4) Offenders detained under high-risk offender orders should be housed separately from the general prisoner population. Offenders should still be able to access programs and other services offered within the prison where it is in the interests of their rehabilitation to do so.

(5) Consideration should be given to the use of alternative detention arrangements, such as a secure treatment facility to house offenders who are detained under a high-risk offender order.

(6) Consideration should be given to the establishment of alternative housing arrangements for high-risk offenders (whether subject to post-sentence supervision or on parole), such as ‘halfway houses’ or transitional centres.

Recommendation 25: Length of orders

25—A Reformed Extended Supervision Scheme

(1) An extended supervision order should be for a set period of two years.

(2) An application for a new extended supervision order must be made before the existing order expires. There should be no limit to the number of extended supervision orders that can be made in respect of an offender.

(3) If no further application for an extended supervision order is made, the offender should be discharged when the current order expires at the end of the two year period.

25—B New High-Risk Offender Scheme

(1) A high-risk offender order should be for a set period of two years.

(2) An application for a new high-risk offender order must be made before the existing order expires. There should be no limit to the number of high-risk offender orders that can be made in respect of an offender.

(3) If no further application for a high-risk offender order is made, the offender should be discharged when the current high-risk offender order expires at the end of the two year period.

Recommendation 26: Review of Orders by the Court

26—A Reformed Extended Supervision Scheme

(1) Prior to the expiry of an offender’s sentence the Director of Public Prosecutions should initiate a review of the order at which the court should determine:

the continuing need for the extended supervision order (i.e. whether the test is still satisfied); and
(if the court sets the conditions) the conditions of the extended supervision order.

(2) As the scheme provides for set two-year orders, no further automatic reviews should be required.

(3) Where an application is granted after the expiry of the offender’s sentence, the order should commence immediately without the need for a review. In such cases, if the court is responsible for setting conditions, the order should set out the conditions.

(3) During the operation of the extended supervision order, the Director of Public Prosecutions and the offender (with leave of the court) should be permitted to apply for a review of an extended supervision order to determine:

the continuing need for the extended supervision order (i.e. whether the test is still satisfied); and
(if the court is responsible for setting conditions) the conditions of the extended supervision order.

(4) On review, the court must revoke the order unless satisfied that the test is still satisfied. If the court does not revoke the order, it must confirm the order and (if the court sets the conditions) may confirm or vary the conditions of the order.

26—B New High-Risk Offender Scheme

(1) Prior to the expiry of an offender’s sentence the Director of Public Prosecutions should initiate a review of the order at which the Supreme Court should determine:

the continuing need for the high-risk offender order (i.e. whether the test is still satisfied); and
the nature of the high-risk offender order (whether it should provide for supervision only or for detention and supervision).

(2) As the scheme provides for set two-year orders, no further automatic reviews should be required.

(3) Where an application is granted after the expiry of the offender’s sentence, the order should commence immediately without the need for a review. In such cases, the nature of the order should be specified (i.e. supervision only or detention and supervision).

(4) During the operation of the high-risk offender order, the Director of Public Prosecutions and the offender (with leave of the court) should be permitted to apply for a review of the order to determine:

the continuing need for the order (i.e. whether the test is still satisfied); and
the nature of the order (whether it should provide for supervision only or for detention and supervision).

(4) At a review, the court must revoke the order unless satisfied that the test is still satisfied. If the court does not revoke the order the court must confirm the order and may confirm or vary the nature of the order (whether it should provide for supervision only or for detention and supervision).

Recommendation 27: Review of Orders by Board

27—A Reformed Extended Supervision Scheme

(1) If a High-Risk Offenders Board is established, the Board must review an extended supervision order at least annually, or more frequently as required.

(2) The purpose of the review by the High-Risk Offenders Board (if such a Board is established) is to:

review the offender’s compliance with and progress under the order and Offender Management Plan,
review and, if necessary, vary the conditions of the order; and
oversee and monitor the delivery of services under Offender Management Plans. This should include a power to issue directions to agencies involved in the delivery of services to an offender.

27—B New High-Risk Offender Scheme

(1) The High-Risk Offenders Board must review a high-risk offender order at least annually, or more frequently as required.

(2) The purpose of the review by the High-Risk Offenders Board is to:

review the offender’s compliance with and progress under the order and Offender Management plan;
review and, if necessary, vary the conditions of the order,
oversee and monitor the delivery of services under Offender Management Plans. This should include a power to issue directions to agencies involved in the delivery of services to an offender.

Recommendation 28: Variation of Orders

28—A Reformed Extended Supervision Scheme

(1) If the court sets conditions, the court may, on hearing a review of an extended supervision order or after the matter has been remitted to it from the Court of Appeal, amend the conditions of the extended supervision order. If the court sets conditions, the Court of Appeal may also amend the conditions of an extended supervision order.

(2) If a High-Risk Offenders Board is established:

There should be no power to apply to the court to amend the conditions of an extended supervision order.
The High-Risk Offenders Board may vary a condition at any time. Written notice must be given of any condition or variation and served on the offender as soon as practicable after the condition is given or varied.

28—B New High-Risk Offender Scheme

(1) There should be no power to apply to the court to amend the conditions of a high-risk offender order.

(2) The High-Risk Offenders Board should be permitted to vary a condition at any time. Written notice must be given of any condition or variation and served on the offender as soon as practicable after the condition is given or varied.

Recommendation 29: Appeal

29—A Reformed Extended Supervision Scheme

(1) There should be provision for:

the offender (with the leave of the court) to appeal to the Court of Appeal against decisions made by the court such as a decision to make or not to revoke or not to review an order; and
the Director of Public Prosecutions (if it is considered to be in the public interest) to appeal to the Court of Appeal against decisions made by the court such as a decision not to make or to revoke or not to review an order.

(2) If the court is responsible for setting the conditions of the order, there should be provision for the offender to appeal against the setting of a condition (with the leave of the court).

(3) On appeal the Court of Appeal should have the power:

if it thinks that the order or condition should have been made/not made, revoked/not revoked, or reviewed/not reviewed, to quash any order or condition made at the original hearing; and/or
in substitution, to make some other order or condition warranted in law (whether more or less severe) as it thinks ought to have been made; or
if it thinks that it is appropriate and in the interests of justice to do so, to quash the order or condition made at the original hearing and remit the matter to the Court; or
in all other cases, to dismiss the appeal.

(4) If the Court of Appeal remits the matter to the court, the Court of Appeal should have the power to give any directions that it thinks fit concerning the manner and scope of the further hearing by the court, including a direction as to whether that hearing is to be conducted by the same or a different judge.

The court should be required to hear and determine the matter in accordance with law and any such directions.

(5) Where a new hearing is directed or a matter is remitted, the Court of Appeal should have the power to make an interim order.

(6) Unless the court that made the relevant decision or the Court of Appeal otherwise orders, the giving of notice of appeal to the Court of Appeal should not stay the operation of the relevant decision.

(7) The Court of Appeal should have the power to extend the period in which the notice of appeal must be filed.

29—B New High-Risk Offender Scheme

(1) There should be provision under the new High-Risk Offender scheme for:

the offender (with the leave of the court) to appeal to the Court of Appeal against decisions made by the court such as a decision to make or not to revoke or not to review an order; and
the Director of Public Prosecutions (if it is considered to be in the public interest) to appeal to the Court of Appeal against decisions made by the court such as a decision not to make or to revoke or not to review an order.

(2) On appeal the Court of Appeal should have the power:

if it thinks that the order should have been made/not made, revoked/not revoked, or reviewed/not reviewed, to quash any order made at the original hearing; and/or
in substitution, to make some other order warranted in law (whether more or less severe) as it thinks ought to have been made; or
if it thinks that it is appropriate and in the interests of justice to do so, to quash the order made at the original hearing and remit the matter to the Supreme Court; or
in all other cases, to dismiss the appeal.

(3) If the Court of Appeal remits the matter to the Supreme Court, the Court of Appeal should have the power to give any directions that it thinks fit concerning the manner and scope of the further hearing by the court, including a direction as to whether that hearing is to be conducted by the same or a different judge.

The Supreme Court should be required to hear and determine the matter in accordance with law and any such directions.

(4) Where a new hearing is directed or a matter is remitted, the Court of Appeal should have the power to make an interim order.

(5) Unless the court that made the relevant decision or the Court of Appeal otherwise orders, the giving of notice of appeal to the Court of Appeal should not stay the operation of the relevant decision.

(6) The Court of Appeal should have the power to extend the period in which the notice of appeal must be filed.

Recommendation 30: Breach

30—A Reformed Extended Supervision Scheme

(1) The offence of breaching an extended supervision order should be retained. Consideration should be given to lowering the maximum penalty for this offence to two years’ imprisonment.

(2) The police should be able to exercise a power of arrest, if they reasonably suspect (for reasons including the advice of a corrections officer or the High-Risk Offenders Board, if established) that an offender who is on an extended supervision order has breached a condition of that order. The offender should be required to be brought before a court as soon as practicable.

(3) There should also be a power, in circumstances where it is not considered necessary for the offender to be arrested, for a charge to be filed for the issue of a summons to be made to the registrar at any venue of the Magistrates’ Court. The existing notice period of 14 days under section 40 of Serious Sex Offenders Monitoring Act 2005 (Vic) should be dispensed with.

(4) If established, the High-Risk Offenders Board on breach of an extended supervision order, should be permitted to vary any instruction or direction given to the offender.

(5) On breach of an extended supervision order by commission of a further offence, in addition to sentencing the offender for the new offence, the court should have the power to sentence the offender for the offence of breach or to make no order. If the court sets the conditions of the extended supervision order, it should also be permitted to vary the conditions of the order on breach.

(6) On breach of a condition of an extended supervision order other than by further offending, the court should have the power to sentence the offender for the offence of breach or to make no order. If the court sets the conditions of the extended supervision order, it should also be permitted to vary the conditions of the order on breach.

(7) Section 19 of the Serious Sex Offenders Monitoring Act 2005 (Vic), relating to the suspension of extended supervision orders, should continue to apply.

30—B New High-Risk Offender Scheme

(1) Breach of a high-risk offender order should constitute an offence. The maximum penalty for this offence should be two years’ imprisonment.

(2) The police should be able to exercise a power of arrest, if they reasonably suspect (for reasons including the advice of a corrections officer or the High-Risk Offenders Board) that an offender who is on a high-risk offender order has breached a condition of that order. The offender should be required to be brought before a court as soon as practicable.

(3) There should also be a power, in circumstances where it is not considered necessary for the offender to be arrested, for a charge to be filed for the issue of a summons to be made to the registrar at any venue of the Magistrates’ Court. There should be no requirement for advance notice of an intention to file a charge against the offender for the breach offence.

(4) On breach of a detention and supervision high-risk offender order, the High-Risk Offenders Board should have the power to:

recall the offender to detention, until such time as the Board may consider it safe for the offender to be supervised in the community;
allow the offender to remain in the community, but vary any instruction or direction given to the offender; or
make no order.

(5) On breach of a supervision high-risk offender order, the High-Risk Offenders Board should have the power to:

vary any instruction or direction given to the offender; or
make no order.

(6) On breach of a detention and supervision high-risk offender order, the offender should also be able to be dealt with by the Supreme Court for the breach offence. The powers of the Supreme Court on breach of a detention and supervision high-risk offender order should be to:

sentence the offender for the offence of breach and confirm the existing order; or
confirm the existing order.

(7) The powers of the Supreme Court on breach of a supervision high-risk offender order, in addition to sentencing the offender for the offence of breach, should be to:

rescind a supervision high-risk offender order and make a detention and supervision high-risk offender order;
rescind an interim supervision high-risk offender order and make an interim detention and supervision high-risk offender order; or
confirm the existing supervision high-risk offender order (or interim supervision high-risk offender order) in circumstances where it considers that the making of a detention and supervision high-risk offender order, or an interim detention and supervision high-risk offender order would be inappropriate.

(8) On breach of a high-risk offender order, Corrections Victoria should also be permitted to apply to the Board to have the conditions of the order varied.

(9) A detention and supervision high-risk offender order, or a supervision high-risk offender order, should be suspended in the same circumstances as provided for under section 19 of the Serious Sex Offenders Monitoring Act 2005 (Vic); however, for the purposes of this section, an offender who is detained under a high-risk offender order should not be treated as being in the legal custody of the Secretary to the Department of Justice or the Commissioner of Police.

Recommendation 31: Reasons for Decisions

31—A Reformed Extended Supervision Scheme

(1) The current requirement under section 35 of the Serious Sex Offenders Monitoring Act 2005 (Vic) that a court that determines an application provide reasons for its decisions, allow for those reasons to be entered into the records of the court and provide a copy of an order made by it to be served on the person making the application (under a reformed scheme, the Director of Public Prosecutions) and the offender should be retained. A copy should also be provided to the High-Risk Offenders Board and the Risk Management Monitor (if established).

(2) The courts that determine applications for extended supervision orders, that review orders and that hear appeals should be required to publish the reasons for these decisions in a publicly accessible format. Where a suppression order has been granted, all suppressed information should be removed prior to publication.

31—B New High-Risk Offender Scheme

(1) The Supreme Court should be required to provide reasons for its decisions, allow for those reasons to be entered into the records of the court and provide a copy of an order made by it to be served on the Director of Public Prosecutions and the offender. A copy should also be provided to the High-Risk Offenders Board and the Risk Management Monitor (if established).

(2) The Supreme Court and Court of Appeal should be required to publish their reasons in a publicly accessible format. Where a suppression order has been granted, all suppressed information should be removed prior to publication.

Recommendation 32: Disclosure of Information

32—A Reformed Extended Supervision Scheme

(1) The current provisions for the making of a suppression order under s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic) should be retained.

(2) The court should continue to have the power to grant a suppression order if it is satisfied that it is in the public interest to do so.

(3) The court should be permitted to prohibit the publication of information including:

any evidence given in the proceeding;
the content of any report or other document in the proceeding; and
any information that may enable the identification of the offender, a victim or another person who has appeared or given evidence in the proceeding including name, place of residence, place of employment and other details.

(4) Under the scheme breaching a suppression order should be an offence.

(5) The maximum penalty should be 1000 penalty units in the case of a body corporate, or in any other case 240 penalty units, two years’ imprisonment, or both.

(6) Consideration should be given to extending liability for breach of a suppression order to a member of a governing body, managing director or secretary of a corporation, unless it is proved that the offence by the company took place without that person’s knowledge or consent.

(7) (a) If a High-Risk Offenders Board is established, similar provisions in relation to the sharing and disclosure of confidential information as exist under sections 43 and 44 of the Serious Sex Offenders Monitoring Act 2005 (Vic) and section 30 of the Corrections Act 1986 (Vic) should be introduced to enable the effective operation of the Board.

(b) Unauthorised disclosure of confidential information should be an offence punishable by 240 penalty units or two years’ imprisonment.

(8) Consideration should be given to the development of guidelines to protect against the unauthorised disclosure of confidential information. These guidelines should be developed in consultation with the High-Risk Offenders Board, Risk Management Monitor, the Extended Supervision Order Review Board, and other agencies and individuals likely to be directly involved with the management of these offenders.

32—B New High-Risk Offender Scheme

(1) The court should have the power to grant a suppression order if it is satisfied that it is in the public interest to do so.

(2) The court should be permitted to prohibit the publication of information including:

any evidence given in the proceeding;
the content of any report or other document in the proceeding; and
any information that may enable the identification of the offender, a victim or another person who has appeared or given evidence in the proceeding including name, place of residence, place of employment and other details.

(3) Under the scheme breaching a suppression order should be an offence punishable by 1000 penalty units in the case of a body corporate, or in any other case 240 penalty units, two years’ imprisonment, or both.

(4) Consideration should be given to extending liability for breach of a suppression order to a member of a governing body, managing director or secretary of a corporation, unless it is proved that the offence by the company took place without that person’s knowledge or consent.

(5) (a) Under the scheme, provisions similar to sections 43 and 44 of the Serious Sex Offenders Monitoring Act 2005 (Vic) and section 30 of the Corrections Act 1986 (Vic) should be introduced to govern the disclosure of confidential information by the High-Risk Offenders Board and others involved in the management of high-risk offenders.

(b) Unauthorised disclosure of confidential information should be an offence punishable by 240 penalty units, or two years’ imprisonment.

(6) Consideration should be given to the development of guidelines to protect against the unauthorised disclosure of confidential information. These guidelines should be developed in consultation with the High-Risk Offenders Board, the Risk Management Monitor, the High-Risk Offender Screening Committee, and other agencies and individuals likely to be directly involved with the management of these offenders.

Recommendation 33: Annual Reports

33—A Reformed Extended Supervision Scheme

(1) Information should continue to be published annually about the operation of the legislation. If the High-Risk Offenders Board and Risk Management Monitor are established, then the obligation to publish this information should fall on these bodies.

(2) The information published should include such information as is necessary to allow the operation of the scheme to be monitored and evaluated. It is suggested that the information could include but not be limited to information about:

the numbers of eligible offenders screened;
the number of assessment reports;
the number of applications made, and of these, how many were successful;
the number of interim orders made;
the number of applications for variation, review and appeals;
the total number of people managed under these orders, and how long they have been subject to orders;
the number and type of breaches, and action taken on breach;
the type of conditions ordered; and
whether performance and quality control standards have been met (including whether applications have been made within the statutory timeframes, what percentage of offenders have had offender management plans prepared, and the number and circumstances of any unauthorised disclosures of information).

33—B New High-Risk Offender Scheme

(1) The High-Risk Offenders Board and Risk Management Monitor should each be required to publish annually information on the operation of the legislation and the performance of their functions under the legislation.

the numbers of eligible offenders screened;
the number of assessment reports;
the number of applications for high-risk offender orders, and of these, how many were successful;
the number of interim orders made;
the number of applications for variation, review and appeals;
the total number of people managed under high-risk offender orders, and how long they have been subject to orders;
the nature of orders made (supervision only or detention and supervision);
the number and type of breaches, and the action taken on breach;
the type of conditions ordered;
whether performance and quality control standards have been met (including whether applications have been made within the statutory timeframes, what percentage of offenders have had offender management plans prepared, and the number and circumstances of any unauthorised disclosures of information).

Recommendation 34: Evaluation

34—A Reformed Extended Supervision Scheme

(1) The Serious Sex Offenders Monitoring Act 2005 (Vic) should be independently reviewed after the reforms have been in operation for a period of five years to evaluate the effectiveness of, and continued need for the legislation.

34—B New High-Risk Offender Scheme

(1) The legislation should be independently reviewed after it has been in operation for a period of five years to evaluate the effectiveness of, and continuing need for the scheme.

Recommendation 35: Indefinite Sentences

(1) The court should be provided with an assessment report by an accredited assessor in support of an application for an indefinite sentence and upon review of the sentence once the nominal period has expired.

(2) Provision should be made for the Director of Public Prosecutions to apply to the court for an order requiring the offender to attend for a personal examination by an accredited risk assessor, or any other person, for the purpose of enabling that expert or other person to make a report, or give evidence to the court.

(3) If a High-Risk Offenders Board is established, the management of offenders on indefinite sentences should be overseen by the Board. The Board should manage offenders from the point an indefinite sentence is made. Offenders should be managed under similar arrangements to offenders subject to post-sentence orders (including the preparation of offender management plans and annual reviews of offenders’ progress).

(4) (a) After the expiry of the nominal sentence, the High-Risk Offenders Board should manage offenders under indefinite sentences in the least restrictive way necessary for adequate protection of the community.

(b) The High-Risk Offenders Board should have powers consistent with those it can exercise in relation to offenders subject to detention and supervision high-risk offender orders, including:

to direct the offender to be detained in custody;
to authorise periods of supervised release in the community;
to set the conditions of any supervised release; and
to recall an offender on supervised release back to custody at any time.

(5) Section 18H(1) of the Sentencing Act 1991 (Vic) should be amended to provide that the first review of an indefinite sentence must take place six months before the end of the period of the nominal sentence.

(6) Section 18H(1)(b) of the Sentencing Act 1991 (Vic) should be amended to provide that subsequent court reviews of an indefinite sentence should take place, on the application of the Director of Public Prosecutions, at any time at least two years after the previous review. The offender should be permitted to apply for a review with the leave of the court.

(7) Information about the numbers of offenders on indefinite sentences, and their management, should be included in the information published annually by the High-Risk Offenders Board.

(8) The relationship between the serious offender provisions and the indefinite sentence provisions should be reviewed and clarified.

Part 1. Background

1.1 Terms of Reference

1.1.1 The Attorney-General, the Hon Rob Hulls, MP, wrote to the Sentencing Advisory Council on 19 May 2006, requesting the Council’s advice about the merit of introducing a scheme that would allow for the continued detention of offenders who have reached the end of their custodial sentence but who are considered to pose a continued and serious danger to the community. Such schemes are currently in operation in Queensland, Western Australia and New South Wales.^[1]

1.1.2 In providing this advice the Council was asked to consider:
- current approaches to post-custodial detention in other jurisdictions;

• the issues raised when Queensland’s Dangerous Prisoners (Sexual Offenders) Act 2003 was considered by the High Court in Fardon v Attorney-General for Queensland;^[2]and

how such a scheme could operate against the backdrop of the existing power of the courts to order an indefinite sentence under the Sentencing Act 1991 (Vic).

1.1.3 Should the government decide to introduce some form of continued detention, the Council was also asked to provide advice on the structure of such a scheme, including:
- the offences for which an order might be available;
- what process for making a continued detention order should be established;
- which body would be empowered to apply for such an order;
- what the criteria for making an order should be, and what process for assessing an offender against these criteria should be established;
- what body should be empowered to make an order;
- what the duration of such orders should be;
- what processes for review should be put in place; and
- what safeguards could be incorporated to ensure that such orders may only be imposed in appropriate circumstances.
1.1.4 As the scheme would have to operate alongside the Serious Sex Offenders Monitoring Act 2005 (Vic), the Council was asked to consider the introduction of such a scheme in the context of that Act.
1.1.5 In line with our terms of reference, this paper addresses two broad issues: first, the merit of introducing a continuing detention scheme in Victoria for offenders who may pose a continued and serious danger to the community on their release from prison at the end of their sentence; and secondly, what form a continuing detention scheme, if introduced, would take.
1.1.6 In this report a distinction is made between sexual and violent offences. The Council acknowledges that sexual offences in their nature are violent. In this report, we refer to offences that have a sexual element as ‘sexual offences’. Non-sexual violent offences are referred to as ‘violent offences’.

1.2 The Council’s Approach

Issues Paper

1.2.1 On 4 September 2006 the Council released a Community Issues Paper entitled High-Risk Offenders: Continued Detention and Supervision Options.^[3] The Issues Paper examined current legal responses in Victoria and other jurisdictions to high-risk offenders at different points in the criminal justice system, with a particular focus on sentencing and post-sentence options.

1.2.2 To assist with the preparation of the Issues Paper, meetings were held with victims’ representatives, Victoria Police, Corrections Victoria, members of the legal community, and mental health professionals. A number of organisations also provided written comments.^[4]

1.2.3 Following the release of the paper, the Council convened two focus groups, each of which drew its participants from a small random sample of the Melbourne population. The purpose of convening these groups was to gain a better understanding of broader community views on the issues raised in the paper.^[5]

1.2.4 The Council also called for written comments on the Issues Paper. Twenty-four written comments were received from individuals^[6] and organisations.^[7]

Discussion and Options Paper and Research Paper on Recidivism of Sex Offenders

1.2.5 Information gathered during the early stages of the review informed the development of a more detailed Discussion and Options Paper released on 29 January 2007.^[8] This paper also explored current legal responses in Victoria and other jurisdictions to high-risk offenders at different points in the criminal justice system. The paper was structured around the two key questions under review: the merit of introducing a continuing detention scheme in Victoria; and the possible structure of such a scheme, if introduced.

1.2.6 The Discussion and Options Paper also presented a possible model for a continuing detention scheme in order to stimulate discussion and debate. In developing this model, the Council was cognisant of the Victorian Charter of Human Rights and Responsibilities, and Victims’ Charter. The Council also considered issues of due process, necessary procedural safeguards, and the possible scope of a post-sentence continuing detention scheme.

1.2.7 Most post-sentence schemes target sex offenders. To coincide with the release of the Discussion and Options Paper and to better inform the debate, the Council published a research paper reviewing the current literature about the nature of sex offending, the characteristics of sex offenders, their risk of reoffending, and the efficacy of treatment in reducing recidivism.^[9]

1.2.8 The Council called for further submissions and continued broad consultations. The Council received 34 submissions in response to the Discussion and Options Paper (the Discussion Paper) and hosted a number of meetings and public forums including:
- a community information session at the County Court on 30 January 2007;
- a roundtable with victims of crime representatives on 6 February 2007; and

• a roundtable with members of the legal profession and police on 13 February 2007.^[10]

1.2.9 The Council’s Chair spoke at a forum convened by the Australian and New Zealand Society of Psychiatry, Psychology and the Law, titled ‘High-Risk Offender Orders and Community Protection: How Long is Long Enough?’, on 19 February 2007.
1.2.10 Council members and staff also met with a range of interest groups and individuals to discuss the issues raised by the review further.
1.2.11 The Council felt it was important to gauge community views on the issues raised by post-sentence detention, and to supplement the published invitation to attend public forums and make a submission. The Council facilitated four focus groups with community members drawn from a small random sample of the Melbourne population. Some of the views expressed by focus group participants are discussed in this report. While the opinions and perceptions of such a small group are not necessarily representative of those held by the broader community, the focus groups were a valuable exercise and we appreciated hearing the views of a wide cross-section of ordinary community members.

Part 2. Merit

2.1 Introduction

2.1.1 Continuing detention schemes involve detaining offenders beyond the end of their sentences on the basis of the risk they are thought to pose to the community. While post-sentence extended supervision schemes are also premised on a person’s risk of reoffending, such schemes in theory do not involve detention. Rather, they generally involve placing conditions and restraints on an offender who is living in the community.
2.1.2 Continuing detention and extended supervision schemes have been introduced in Queensland, New South Wales and Western Australia. While Victoria allows for Extended Supervision Orders (ESOs) under the Serious Sex Offenders Monitoring Act 2005 (Vic), no power currently exists to detain an offender in custody beyond the term of his or her sentence. This distinction between supervision and detention in custody is central to the Council’s deliberations.
2.1.3 The post-sentence detention and supervision schemes in Australia target sex offenders. Evidence about the reoffending rates of those classified as ‘high-risk’ offenders, and a host of challenges associated with assessing future risk, are explored in detail in our earlier publications in the review.
2.1.4 We have been asked to advise on the merits of continuing detention for offenders ‘considered to pose a continued and serious danger to the community’. While the ESO scheme primarily applies only to offenders convicted of sexual offences against children, the Council’s terms of reference for this inquiry have not been similarly limited.

2.1.5 As the High Court recognised in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs, involuntary detention is generally considered to be ‘penal or punitive in character’ and as existing ‘only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt’.^[11] The detention of offenders beyond the end of their sentence stands in stark contrast to this principle, as offenders are not detained because of their past behaviour, but because of predictions about their future behaviour.

2.1.6 Reflecting the complexity of the issues, views expressed during this inquiry have ranged from firm support for the introduction of continuing detention^[12] to strong opposition.^[13] Some have also argued that current measures in place to manage high-risk offenders would be sufficient to meet the interests of community protection if there were adequate resources and the measures were consistently applied.^[14]

2.1.7 On both sides of the debate there appears to be an acceptance that there will inevitably be a small group of high-risk convicted offenders who pose a danger of committing further serious crimes, and that these risks should be actively managed wherever possible. But there is clear disagreement about whether it is possible to identify those individuals with any precision, how to manage that risk, and what the balance should be between the rights of offenders and the protection of the community.

2.2 Risk Assessment

Introduction

2.2.1 A critical threshold issue for this inquiry has been whether ‘high-risk’ individuals can be identified with any degree of precision. Until recently, predictions of recidivism were based on the broad concept of ‘dangerousness’. However, in recent years this concept has been criticised for its lack of precision and for its implication that offenders who were deemed ‘dangerous’ were not treatable.^[15] Modern approaches have changed the focus from dangerousness generally to the prediction of risk.

2.2.2 Current schemes dealing with high-risk offenders at different stages in the criminal justice process have adopted different approaches to determining which offenders should fall within their scope. Recent legislation in Victoria and other Australian jurisdictions has focused on the supervision and detention of serious sex offenders, whereas legislation providing for indefinite sentences imposed at the point of sentencing typically apply to both sex offenders and to high-risk violent offenders.

2.2.3 Categorising high-risk offenders solely by reference to the type of crime committed may result in people who pose no continued threat to the community being inappropriately included. Offences against the person differ in their severity according to the circumstances of the case. In addition, many people who commit the most serious offences, such as murder, do not necessarily pose a high risk of reoffending. It has been argued that the ‘question of penalties for serious—even for the worst cases of such offences—must not be confused with the question of protecting the public from the few serious offenders who do present a continuing risk and who are likely to cause further serious harm’.^[16]

2.2.4 Most of the provisions for high-risk offenders require additional criteria to be met before an order can be made. For example, before a court in Victoria can impose an indefinite sentence, it must be satisfied ‘to a high degree of probability, that the offender is a serious danger to the community’.^[17] This may provide some protection against the net being cast too broadly. However, identifying which offenders are at high risk of causing serious physical harm in the future is a difficult task.^[18]

Reoffending: The Evidence

2.2.5 When reviewing the research on risk of recidivism, a critical methodological issue that has substantial implications for interpreting results is how recidivism is defined. The most common definition used in the research is rates of reconviction, measured by return to prison. While this is perhaps the most convenient and verifiable measure, it is also the most conservative. Given that the rates of reporting, detection, arrest and successful prosecution of sexual offences are all very low, the proportion of all sex offenders who end up in prison represents only a small minority of all sex offenders. On this basis, any estimates of the rates of reoffending among sex offenders based on reconviction rates may underestimate the true extent of the risk.

2.2.6 Most serious violent and sex offenders do not have previous convictions for violent or sexual offences and do not go on to be convicted of further such offences.^[19] In fact, a review of studies examining recorded recidivism rates of sex offenders, while acknowledging problems such as under-reporting, found that only 13.4 per cent committed a new recorded sexual offence within four to five years.^[20] While this figure is likely to be a conservative estimate for the reasons outlined above, it is nonetheless indicative of the relative risk of recorded reoffending for sex offenders when compared to other offenders, for whom recorded rates of recidivism tend to be far higher.

2.2.7 While much is known about the characteristics of sex offenders^[21] who are reconvicted, far less research has been conducted on the characteristics of other kinds of recidivist offenders who may be categorised as high-risk.^[22]

2.2.8 There is now general consensus among researchers and practitioners that sexual recidivism is associated with at least two broad factors: deviant sexual interests and antisocial behaviour/lifestyle instability.^[23] As with other kinds of offenders, sexual offenders often have multiple life problems, not all of which are related directly to their offending behaviour.

Identifying Which Offenders are at Risk of Reoffending

2.2.9 A defensible continuing detention scheme depends on the accurate and reliable assessment of an individual’s risk of reoffending. But risk assessment is notoriously difficult. Even for clinicians who have substantial experience in the prediction of risk for sex offenders, the best calibrated actuarial assessments will still be wrong at least some of the time. That is, risk assessment will always be subject to the problem of ‘false positives’, where predictions of future offending are not fulfilled.

2.2.10 The issue of potentially incorrect predictions of risk is especially significant in the context of a continuing detention scheme. In the absence of a high degree of certainty in predictions of future offending, a scheme that detains offenders beyond the end of their sentence may be unjustified. Indeed, it has been suggested that continuing detention schemes are premised on the false assumption that individuals posing a serious danger to the community can be accurately identified.^[24] Continuing detention laws may thus deprive people of liberty for lengthy periods on the basis of ‘an educated guess’ and the occurrence of ‘false positives’ may lead to the detention of people who are unlikely to reoffend.^[25]

2.2.11 Research has shown that mental health professionals tend to be especially cautious (that is, to err on the side of finding a risk) in their assessments of possible future offending and to over-predict violence,^[26] and that, at best, clinical assessments of risk of recidivism based on subjective judgments are only slightly better than chance.^[27] Such over-prediction has been shown to result in large numbers of ‘false positives’, where individuals have been identified as likely to commit further offences but who, upon release, have not actually reoffended.^[28]

2.2.12 As the predictive accuracy of unguided clinical assessments is typically only slightly above chance, attention in recent years has turned to the use of the empirically based actuarial assessment tool.^[29] Actuarial approaches not only specify the list of research-based risk factors that should be considered, but they also provide explicit directions on how the items should be combined into an overall risk score. Despite the fact that the predictive accuracies of these measures are still only in the moderate range, actuarial measures are now considered to be a component of best practice intervention.^[30]

2.2.13 While the actuarial method of risk assessment is thought to be more accurate than the clinical method, there has been some suggestion that a combination of the two approaches may produce better results.^[31] In particular, actuarial risk assessments alone do not consider protective factors, such as stable employment, that may mitigate the effects of risk factors. By adjusting the actuarial assessment to consider such factors, risk assessments can be more effectively tailored to the individual offender by identifying behavioural traits, environmental stressors, personal characteristics and social variables that can exacerbate or mitigate risk.^[32]

2.2.14 In its submissions, the Victorian Institute of Forensic Mental Health (Forensicare) raised a number of issues with predicating a system such as a continuing detention scheme on the assessment of an individual offender’s risk.^[33] In his submission, Professor Paul Mullen argued that ‘none of [the available] risk assessment tools can properly be applied in the individual situation as the probability estimates they generate in the individual case are so variable as to be effectively useless’.^[34] Professor Mullen explained the problem inherent in assessing individual risk in the following way:

When the court is told that the offender X has a probability of reoffending of 52% based on the STATIC 99 [an actuarial risk assessment tool used to assess the probability of sexual and violent recidivism] what they are actually being told is:

1. The offender falls into a group whose chances of committing some kind of indictable offence varying from shoplifting to murder is 52% and I can be 95% confident that the true estimate falls between 30% and 60%.

2. That this actual offender also has a probability of re-offending in some manner or another of between 30% and 60% and I can be 95% confident that his true risk falls somewhere between 3% and 95%.^[35]

2.2.15 In a separate article Professor Mullen concludes that the ‘margins of error in every actual, or conceivable, risk assessment instrument are so wide at the individual level that their use in sentencing, or any form of detention, is unethical’.^[36]

2.2.16 Assessments of risk for sex offenders are especially difficult due to the low base rates of recorded sexual reoffending. Any phenomenon that has a low observed (in this case, recorded) prevalence is difficult to predict—accurate prediction of sexual reoffending is thus particularly problematic.

2.2.17 Further difficulties arise with empirical assessments when the risk posed by a particular offender may have decreased: research suggests that only tentative conclusions can be made concerning changes in risk levels over time—there is ‘no way empirically of pinpointing when ... dangerousness decreases’.^[37] This difficulty is well illustrated by the case of the 102-year-old sex offender in civil confinement in Wisconsin who cannot participate in treatment due to memory lapses and poor hearing, and is therefore not eligible for release.^[38]

2.2.18 Actuarial risk assessment tools may also pose difficulties when used with particular groups of offenders. For example, Indigenous offenders as a group are more likely to have been abused in childhood and to have a history of early substance abuse, both of which are included in the assessment questionnaires as factors associated with high-risk status. Indigenous offenders may therefore be more likely to be erroneously classified as high-risk than are non-Indigenous offenders.^[39]

2.2.19 In addition, while predictions of risk can provide a percentage likelihood of reoffending over the long term, they provide little information about the sub-group of offenders to whom the percentage applies, nor when or why they might reoffend.^[40] Assessment tools cannot predict the circumstances under which people will reoffend;^[41] without such information on the nature of potential triggers or situations that may lead to reoffending, predictions of risk can do little to inform approaches to prevention.

2.2.20 The actuarial tools that are currently used for risk prediction have generally been shown to predict sexual recidivism only moderately well (and not quite as well as they predict general or non-sexual violent recidivism). They are unable to distinguish, for example, between the risk of further sexual offences against children and the risk of the same against adults. Their lack of precision in predicting different kinds of sexual recidivism is a concern, as studies of the recidivism rates of different sub-groups of sex offenders have found substantial variation in the patterns and precursors, as well as in the recidivism rates themselves.^[42] Such difficulties have led one forensic clinician to conclude that predictions of risk come ‘perilously close’ to chance.^[43]

Risk of What?

2.2.21 Predictions of risk in a legal context are concerned with the prediction of either violent offending or sexual offending. While actuarial risk prediction tools are able to predict general reoffending to a moderate degree of accuracy, in most instances they are used with violent and sex offenders specifically for the prediction of homologous, or ‘like’, reoffending. In the case of the Victorian extended supervision order, for example, as the legislation focuses on offenders who sexually offend against children, the focus of any risk assessment would typically be the risk of reoffending by committing a sexual offence, rather than a violent or any other kind of offence.

2.2.22 The prediction of ‘like’ reoffending that is often stipulated in legislation is based upon an assumption that sex offenders are most likely to reoffend with further sexual offences. However, the research on the nature of sexual offending has consistently shown that this is not the case: sex offenders and violent offenders are generalists in their offending, not specialists.^[44]

2.2.23 For example, in one of the most comprehensive Australian studies on sex offenders, the authors concluded that child sex offenders are not specialist offenders—instead, there appears to be ‘considerable versatility’ in the criminal careers of these offenders.^[45] For this reason sex offenders should not be considered as a homogeneous, specialist group, but instead as a group similar to general criminal offenders, with a diversity of pathways to offending.

2.2.24 While rearrest and reconviction rates are an imperfect measure of true rates of recidivism due to factors such as the under-reporting of sexual offences, studies around the world have consistently found that rates of recorded reoffending are particularly low for sexual and violent offenders.^[46] These studies provide evidence of higher rates of general recidivism but low rates of recorded homologous recidivism (i.e. reoffending by commission of further sexual and violent offences).

2.2.25 The importance of this conclusion for the prediction of risk lies in the finding that future offences for which a sexual offender is convicted are more likely to be non-violent, non-sexual offences than sexual ones. However, this does not take into account the fact that the majority of sexual offences are never reported to police.^[47]

2.2.26 Assuming the generalist nature of sex offenders’ criminal careers, continuing (preventive) detention may have a limited impact on violent or sexual recidivism. Further, due to low rates of recorded violent and sexual reoffending among violent and sex offenders, the diverse and heterogeneous nature of known sex offenders’ criminal behaviour renders the task of prediction especially difficult. This creates significant challenges for legislation that stipulates the prediction of sexual offending.

At What Stage Should Risk Be Assessed?

2.2.27 Assessing an offender’s risk of future reoffending at the time of sentencing, for example under Victoria’s indefinite sentence provisions,^[48] is a particularly difficult task. Mental health professionals are called upon to identify the level of risk that an offender might pose many years in the future, before any experience of imprisonment or treatment. They are asked to form opinions on the basis of brief interviews and assessments, without the benefit of developing a therapeutic relationship and having sufficient time to understand the person’s particular situation.

2.2.28 Assessing a prisoner’s risk of future reoffending at the end of his or her sentence is also challenging. A key difficulty for mental health professionals is how to take into account relevant risk factors when offenders have been in prison for many years. In such a case, many dynamic risk factors such as the availability of supportive social networks may be difficult to assess. This will undoubtedly affect the accuracy of the prediction of risk, especially when there has been a long period of custody.

2.2.29 Accordingly, risk assessments at either end of the process have their limitations. Given this, it has been suggested that the best practice would include an early assessment of an offender’s risk followed by follow-up assessments that continue throughout the offender’s sentence. This would allow a case manager to develop a relationship with an offender, providing the time needed for a thorough understanding of both the static and dynamic risk and protective factors that affect the individual’s level of risk to the community. Consistent with the principles of therapeutic jurisprudence, early assessment of offenders would help to ensure that an appropriate treatment regime is put in place as soon as possible during an offender’s prison sentence.^[49]

2.3 Current Responses to High-Risk Offenders

Introduction

2.3.1 A central issue to consider in assessing the merits of post-sentence continuing detention is whether there is a gap in the current responses in Victoria to ‘high-risk’ offenders, and if so, whether this gap is best filled by introducing a continuing detention scheme, improving existing responses, or exploring other approaches.
2.3.2 Earlier publications in this review examined a number of current justice system responses in Victoria and elsewhere to high-risk offenders, including:
- sentencing orders that allow or require a court to impose longer sentences, extended parole periods and indefinite sentences;
- approaches for managing serious offenders while under sentence, such as treatment and special arrangements for the case management of serious offenders in prison and in the community;
- post-sentence supervision and detention schemes; and

• other measures aimed at preventing known sex offenders, or others considered at risk of offending, from coming into contact with potential victims, such as specialist sex offender registers and civil orders.^[50]

2.3.3 We review each of these approaches briefly below.

Sentencing Options

Victoria

2.3.4 In addition to ‘standard’ sentencing options, the courts in Victoria have three main powers to deal with serious offenders:
- The power to order a life sentence of imprisonment for offences that carry a maximum penalty of life (for example, murder and treason): see further Discussion Paper [4.6]–[4.8].

• The power to order an indefinite sentence of imprisonment for an offender found guilty of one of a number of ‘serious offences’ (which include a range of violent offences such as murder, manslaughter, intentionally causing serious injury, armed robbery, rape, and sexual offences against children):^[51] see further Discussion Paper [4.9]–[4.19]; [4.27]–[4.28]; [4.48]–[4.55].

The power to impose a longer than proportionate sentence on ‘serious offenders’ convicted of certain offences: see further Discussion Paper [4.20]–[4.28]; [4.48]–[4.55].

Overseas Approaches

2.3.5 In the Discussion Paper we considered some approaches to sentencing high-risk offenders that have been adopted in other overseas jurisdictions, including:
- In Canada, the ‘dangerous offender’ and ‘long-term offender’ designations: see further Discussion Paper [4.29]–[4.37].
- In the United Kingdom, ‘dangerous offender’ sentences, life sentences, extended sentences, and indeterminate sentences for public protection: see further Discussion Paper [4.39]–[4.41].
- In Scotland, extended sentences and orders for lifelong restriction (which provide for the lifelong supervision of high-risk violent and sexual offenders in prison and the community): see further Discussion Paper [4.42]–[4.44]; [4.126]–[4.127].
- In New Zealand, life sentences and preventive detention: see further Discussion Paper [4.45]–[4.47].
2.3.6 All of these approaches share some similarities with the sentencing options in Victoria, but all vary in the range of offences that trigger eligibility for the orders, and there are differences across jurisdictions as to how orders are structured.

Managing High-Risk Offenders Under Sentence

Parole

2.3.7 In Victoria, if a court imposes a sentence of over two years’ imprisonment, it ordinarily must set a non-parole period (the minimum term an offender must serve in prison before becoming eligible to be released on parole).^[52] Courts have discretion not to set a non-parole period at all if the nature of the offence or the past history of the offender makes it inappropriate to allow for possible release on parole.^[53]

2.3.8 The main purpose of parole is to supervise the reintegration of offenders into the community. The Adult Parole Board (APB) determines whether offenders should be released into the community at the expiry of the non-parole period. The APB meets with prisoners early on during their sentences to ensure that offenders undertake appropriate programs aimed at helping them to reintegrate into the community. When deciding whether to release an offender on parole, the Board considers the protection of the community, the rights of victims, the intentions of the sentencing body and the needs of the offender.^[54] The APB is able to impose onerous parole conditions, including curfews, strict conditions about where a parolee may reside, requirements to attend treatment programs, random substance testing, and restrictions upon where the parolee may go and with whom he or she can associate.^[55]

2.3.9 The main advantage of the parole system is that it ensures that offenders are supervised and supported as they reintegrate into the community. It is based on the notion that supervision in the community is conducive to rehabilitation and that this is preferable to releasing an offender unconditionally without any support when the full sentence of imprisonment has been served.

Treatment Programs

Sex Offender Programs

2.3.10 Most Australian jurisdictions have some form of prison-based sex offender treatment programs to address the factors that lead to offending, delivered by individual and/or group therapy.^[56] The primary objective of sex offender treatment programs is to reduce recidivism, with treatment occurring in prison and/or in the community. Prison programs tend to focus on intensive treatment of those factors most likely to lead to reoffending, and may also mitigate the effects of prolonged imprisonment. Programs in the community tend to offer assistance to offenders to maintain a reduced risk of reoffending.^[57]

2.3.11 In Victoria, Corrections Victoria implemented the Statewide Sex Offender Strategy Framework in 1996 with the aim of providing a coordinated and integrated system of assessment, management and intervention for sex offenders across both Prison Services and Community Correctional Services.^[58] The primary objectives of Corrections Victoria sex offender programs are community protection and reducing the likelihood of sexual reoffending.^[59] The Sex Offender Strategy is aimed at convicted male and female adult sex offenders, including rapists, child sex offenders, and offenders whose offences contain a sexual element, such as Internet child pornographers.^[60]

2.3.12 Since December 2002 Corrections Victoria sex offender programs have adopted a ‘funnelling strategy’ whereby offenders participate in the initial stages of treatment before being funnelled, as needed, into the more intensive program.^[61] Corrections Victoria advises that the more intensive treatment is timed to occur close to offenders’ release dates, ‘during the window of opportunity that exists’ just prior to release, in order to allow the acquisition of new skills to occur as close as possible to the opportunity to practise them.^[62]

2.3.13 Victoria also has a number of programs that target adolescent sex offenders, whose patterns of offending tend to mirror those of adult sex offenders.^[63] One of these, the Male Adolescent Program for Positive Sexuality (MAPPS), was established by the Department of Human Services in 1993 as a community-based intervention program for young males (aged 10–21) convicted of sexual offences. In 1998 an evaluation of the MAPPS program found that recidivism rates for sexual offences had declined following participation.^[64] Those who completed treatment were eight times less likely to reoffend than were adolescents who did not complete the program.^[65] Adolescent and youth treatment programs in Victoria will soon expand, as new programs are under development.^[66]

2.3.14 While few proper systematic evaluations of treatment programs have been carried out, the evidence that does exist suggests small but significant reductions in sexual recidivism following completion of treatment.^[67] This is particularly the case where offenders have access to maintenance programs in the community.^[68]

2.3.15 Part of the success of community-based programs may be their diverse nature. As well as including the cognitive behavioural and relapse prevention aspects of treatment that are found in prison programs, community-based programs often last several years and help offenders to develop a network of family and friends to assist with rehabilitation and with finding essentials such as stable employment. These maintenance programs provide continuity of care from prison into the community, and are thought to be essential aspects of effective treatment.

2.3.16 The recognition of the importance of social support has resulted in the development of the ‘Circles of Support and Accountability’ (CoSA) initiative in Canada, which has been imported into the United States, Scotland and England.^[69] This is discussed below at [2.3.43].

Violent Offender Programs

2.3.17 Corrections Victoria also offers treatment programs for violent offenders. To be eligible, offenders must:
- be currently serving a sentence/order for a violent offence or have a significant history of violence;
- have sufficient time left on their sentence to participate;
- not be appealing their conviction or sentence;
- be capable of participating in the program and motivated to attend the group; and

• have been assessed as suitable for the program.^[70]

2.3.18 The treatment of offenders is discussed in more detail in the Council’s Discussion Paper at [3.50]–[3.93].

Post-Sentence Responses

Victoria

2.3.19 In Victoria existing legal approaches to managing sex offenders post-sentence, including high-risk offenders, include:
- the extended supervision order scheme, which requires offenders to comply with a number of conditions, including supervision and residence requirements;
- sex offender registration, which requires offenders to register their details with police; and

• the creation of special offences aimed at preventing known offenders from coming into contact with children, such as the prohibition of loitering near schools or other places that children are known to frequent,^[71] or applying for child-related employment.

Post-Sentence Extended Supervision

2.3.20 Under the Serious Sex Offenders Monitoring Act 2005 (Vic), offenders who have reached the end of their prison sentences may be made subject to ongoing supervision in the community for an extended period. Applications for ESOs are made to the Supreme or County Court by the Secretary to the Department of Justice.^[72] The current scheme applies primarily to offenders who have committed sexual offences against children.^[73] A court may only make an extended supervision order if it is satisfied, to a high degree of probability, that the offender is likely to commit a sexual offence if released into the community after serving a prison sentence.^[74] The maximum term of the order is 15 years, although a new order may be applied for if the offender is still considered to be likely to commit further offences at the end of the original order.^[75] In this sense, it is as much a continuing supervision scheme as it is an extended supervision scheme.

2.3.21 An extended supervision order contains a number of statutory conditions as well as conditions set by the Adult Parole Board and the Secretary to the Department of Justice.^[76] The conditions imposed include curfews, outings only under escort and a requirement to live in a temporary centre established by Corrections Victoria within the walls of Ararat Prison.^[77]

2.3.22 The power to direct offenders on extended supervision orders to live in the Extended Supervision Order Temporary Accommodation Unit in Ararat (a building on degazetted land within the walls of Ararat Prison) was recently challenged in the Supreme Court.^[78] The court held that such directions were an unlawful exercise of the power to set conditions. The power to direct the offender where to live had to be exercised in accordance with the purposes of the conditions of orders set out in the Act, which are to ensure that the community is adequately protected by monitoring the offender and to promote the rehabilitation and care and treatment of the offender.^[79] As the Minister for Corrections said in the Second Reading Speech: ‘Extended supervision orders will only be in force when the subject is resident in the community’.^[80] Under the direction, it was found, the offender was ‘not residing in the community’.^[81]

2.3.23 Following this decision the legislation was amended to authorise the Adult Parole Board to direct an offender to live on land which is situated within the perimeter of the prison, but which does not form part of the prison itself. The amendments make it clear that a direction or instruction to that effect is to be considered as releasing the offender into the community, to live in the community.^[82] These changes apply to all extended supervision orders, irrespective of when the order was made.^[83] The implications of this change are discussed below at [2.3.82].

2.3.24 Since the ESO scheme commenced, there have been 14 successful applications for extended supervision orders.^[84] Of the 14 offenders made subject to ESOs, one offender is in custody following a breach of his order,^[85] and one had his order revoked following a successful appeal to the Court of Appeal.^[86]

Sex Offender Registration

2.3.25 The Sex Offenders Registration Act 2005 (Vic) requires sex offenders to keep the police notified of their whereabouts and inform them of their personal details in order to reduce the likelihood that they will reoffend.^[87] Registered offenders must then report annually to the police and must also report any changes to relevant personal details.^[88] The length of the reporting period differs according to the seriousness of the offence committed, ranging from eight years to life. The punishment for failing to comply with any reporting obligations without a reasonable excuse is 240 penalty units ($25,783) or imprisonment for two years.^[89] Registration requirements continue to apply to offenders after their sentence has expired.

Preventive Offences

2.3.26 Victoria has a number of specific offences directed at known sex offenders to prevent them from coming into contact with children. For example, the offence of ‘loitering near schools’ creates a criminal offence for convicted sex offenders who loiter in areas where children are likely to be present.^[90] If the person has previously been sentenced as a ‘serious sexual offender’, the maximum penalty for this offence is five years’ imprisonment. In all other cases, the maximum penalty is two years’ imprisonment.^[91]

2.3.27 A number of offences also apply to offenders who are registered under the Sex Offender Registration Act 2004 (Vic), including failing to comply with reporting obligations without a reasonable excuse and providing false or misleading information.^[92] Registered offenders are also prohibited from applying for or engaging in child-related employment.^[93]

Other Approaches

2.3.28 In Australia and overseas, a range of other approaches to managing high-risk offenders and other high-risk groups in the community, both during and after sentence, have been developed. These approaches, which are explained in more detail in our Discussion Paper,^[94] could be viewed either as alternatives or as adjuncts to a continuing detention scheme. Relevant initiatives include:

the introduction of multi-agency cooperative arrangements to improve the coordination and delivery of services, as well as the management of high-risk offenders in the community, such as the Victorian Multiple and Complex Needs Initiative (MACNI) in Victoria, and the Multi-Agency Public Protection Arrangements (MAPPA) in the United Kingdom;
the introduction of short-term civil preventive orders for offenders in the community, such as the Sex Offences Prevention Orders (SOPO) operating in the United Kingdom, ‘peace bonds’ introduced in Canada, and ‘child protection prohibition orders’ introduced in some Australian jurisdictions, including New South Wales and Western Australia;
the establishment of independent authorities to provide oversight of the way high-risk offenders are managed, and with responsibility for conducting training and research on best-practice approaches, such as the Risk Management Authority recently established in Scotland; and
community initiatives to assist in the reintegration of offenders into the community while managing the risk of reoffending, such as the Circles of Support and Accountability operating in a number of jurisdictions, including in Canada, the US and more recently in the UK.

2.3.29 The introduction of ‘sex offender reentry courts’ has also been advocated by some.^[95]

Victorian Multiple and Complex Needs Initiative (MACNI)

2.3.30 The Victorian Multiple and Complex Needs Initiative (MACNI) is a local example of a multi-agency management approach for managing people at high risk of harming themselves or others. The MACNI client group consists of people who have a cognitive impairment, rather than people who necessarily have been convicted of serious offences. While the ‘target group’ of the scheme is quite different from that with which this report is concerned, the scheme itself provides a model for the multi-disciplinary management of people who may benefit from more active involvement of a range of agencies in providing supervision and support.^[96]

2.3.31 A Multiple and Complex Needs Panel (‘the Panel’)^[97] is responsible for deciding whether a person meets the eligibility criteria, and if so, whether the person should be placed on a ‘care plan’. For a person to be eligible under the MACNI he or she must be at least 16 years old and must satisfy two or more of a set of criteria, including having exhibited violent and dangerous behaviour that has caused serious harm to himself or herself or to another person, or exhibiting behaviour that is reasonably likely to place himself or herself or another person at risk of serious harm.^[98] If found to be eligible, the person is then referred to Care Plan Assessments Victoria (CPAV) for assessment.^[99]

2.3.32 The CPAV is multidisciplinary, to reflect the complex and varied challenges that face these individuals and to provide a holistic approach to creating the most appropriate care plan. The CPAV team currently includes people who have experience working in the disability sector, social workers with various areas of expertise and experience, and a forensic psychologist.^[100] The CPAV undertakes a comprehensive assessment of each individual referred to it by the Panel.^[101] Once the assessment has taken place, the CPAV makes a recommendation to the Panel as to whether a care plan should be implemented.^[102] A draft care plan is submitted to the Panel, which can accept or reject the CPAV’s recommendation as to whether the person should be placed on a care plan. If it accepts the recommendation, the Panel can then adopt the care plan, with or without modification.^[103] A care plan may include welfare services, health services, mental health services, disability services, drug and alcohol treatment services and/or housing and support services.^[104] A care plan cannot be for a period of more than 12 months and can only be extended for a further 12 months.^[105] The care plan coordinator is also required to provide reports to the Multiple and Complex Needs Panel when requested, or every six months.^[106]

2.3.33 The Minister for Health has reported that offenders managed under a care plan have experienced more stable living arrangements, a reduction in accident and emergency department admissions, better identification of health care requirements, and improved cooperation and goodwill between their service providers.^[107]

United Kingdom: Multi-Agency Public Protection Arrangements and Sex Offences Prevention Orders

2.3.34 The criminal justice response to managing violent and sex offenders is supported in the United Kingdom by the Multi-Agency Public Protection Arrangements (MAPPA).^[108] The purpose of MAPPA is to assess and mange the risks posed by sexual and violent offenders, and others at risk of causing serious harm to the public.^[109] As well as applying to offenders on licence (parole) or subject to a sentence of extended supervision, MAPPA also apply to offenders who have reached the end of their sentence but are still considered to be at risk of serious offending.

2.3.35 Under the scheme it is mandatory for the police and the prison and probation services (acting as the ‘responsible authority’) in each of the local areas of England and Wales to put in place arrangements for assessing and managing the risks posed by violent or sex offenders.^[110] These agencies are required to monitor the arrangements and to prepare and publish an annual report on their operation.^[111] A number of other agencies are required to cooperate with the responsible authority, including social services, job centres, and local housing and education authorities.^[112]

2.3.36 Offenders who are deemed to pose a serious risk of harm to the public are referred to as ‘the critical few’ who require more intensive supervision. These offenders are classified as Level 3 offenders and are managed by Multi-Agency Public Protection Panels (MAPPPs). Meetings of these panels are convened and coordinated by the police, probation services and prison services and can include a range of agencies, such as local housing providers, social workers and health providers.

2.3.37 MAPPPs monitor offenders under sentence in the community, as well as offenders who are no longer under sentence. While no power exists in the United Kingdom to make a form of extended supervision or detention order for offenders who do not have a mental condition,^[113] the MAPPA arrangements allow police to monitor offenders closely post-sentence.

2.3.38 Alongside the MAPPA scheme, offenders in the United Kingdom can be placed on a civil preventive order known as a ‘sex offences prevention order’ (SOPO). These orders may be made by a court at the time of sentencing, or the police can apply for a SOPO against any sex offender whose behaviour in the community gives reasonable cause to believe that it is necessary for an order to be made.^[114] The court must be satisfied that it is necessary to make the order ‘for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant’.^[115] The maximum penalty for a breach of the order is five years’ imprisonment.^[116] Some have argued that civil orders such as the sexual offences prevention order are problematic because of their hybrid civil/criminal nature, particularly in relation to the appropriate burden and quantum of proof and admissible evidence. It is argued that these broad and powerful civil orders can come at the cost of the rights of the accused and can transgress fundamental legal principles.^[117]

2.3.39 While it is too early to tell what impact these changes have had on overall levels of reoffending, there is some evidence to suggest that arrangements such as MAPPA may reduce the risk of sexual and violent reoffending.^[118] Clearly the way in which these arrangements are implemented in practice is likely to affect their potential to prevent further offending. Recent media reports suggest that the level of monitoring and supervision under the MAPPA may be inadequate in some cases.^[119] However, such approaches may improve coordination among agencies and thus improve the management of offenders in the community, as MACNI has in Victoria.

Risk Management Authority (Scotland)

2.3.40 The Scottish Risk Management Authority (RMA) was established after the MacLean Committee on Serious Violent and Sexual Offenders identified a need for an independent body that would have overall responsibility for ensuring regular reviews of high-risk offenders subject to the new form of indefinite sentence (an order for lifelong restriction) and for the maintenance and delivery of risk management plans, as well as assisting in managing the transition from prison back into the community.^[120] The responsibilities of the RMA include:

developing policy and carrying out and monitoring research in risk assessment and minimisation;
setting standards for the assessment and minimisation of risk, and issuing guidance to those involved in these tasks;
accrediting people involved in risk assessment and minimisation, as well as the methods and practices used in the assessment and minimisation of risk; and

• carrying out education or training activities in relation to the assessment and minimisation of risk, or commissioning such activities.^[121]

2.3.41 Once a high-risk sex and violent offender is sentenced to an order for lifelong restriction (OLR),^[122] the Risk Management Authority also assumes responsibility for approving and monitoring risk management plans (RMPs). Principal responsibility for the development and delivery of the RMP will rest, however, with the relevant ‘Lead Authority’. The RMP will include details of the assessment of risk, what measures will be put in place to minimise the offender’s risk, and how these measures will be coordinated.^[123] The RMA recommends that the Risk Assessment Report prepared for the High Court prior to sentencing should be used by the Lead Authority as a basis for developing the more detailed RMP, which should occur ‘in the first months of the OLR being imposed’.^[124]

2.3.42 One of the advantages of this type of model is that an independent body is responsible for overseeing the development of a risk management plan and ensuring that it is put in place in the early stages of an offender’s sentence and reviewed at regular intervals. This auditing role may help to ensure that high-risk offenders are more actively managed during the term of their sentence and that opportunities for their rehabilitation are made available.

Community Initiatives: Circles of Support and Accountability (CoSA) Program

2.3.43 In some jurisdictions it has been recognised that the rehabilitation of offenders and effective community protection cannot be achieved without social support and the active involvement of the community. This has led to the development of the ‘Circles of Support and Accountability’ (CoSA) initiative in Canada, which has subsequently been imported into the United States, Scotland and England.^[125]

2.3.44 The aim of the Canadian CoSA program is to help communities to respond to the needs of high-risk, high-needs sex offenders who are released at the end of their sentence. It recognises that many sex offenders are socially isolated, and so provides a support network to which the offender can turn once released from prison or a treatment centre. Support personnel include volunteers who are trained to provide relapse prevention and to identify warning signals for risky behaviour.^[126] The three key goals of the program are to provide support to the offender, to monitor the offender in the community, and to maintain the offender’s treatment objectives with a view to preventing reoffending.

2.3.45 In jurisdictions where the CoSA is operating it is clearly viewed as a useful adjunct rather than an alternative to traditional justice system responses. It may hold promise for helping communities to become actively involved in managing the risk posed by certain offenders.

Sex Offender Re-entry Courts

2.3.46 A recent innovation in Victoria and overseas jurisdictions has been the introduction of specialised problem-solving courts to deal with different groups of offender populations. The focus of problem-solving courts is to address the underlying causes of criminal behaviour in order to reach an outcome that is mutually beneficial for the offender and the community.^[127] Problem-solving court models have been described as involving:

a collaborative, interdisciplinary approach to rehabilitation and problem solving in which the judge plays the leading role ... [involving] the explicit use of judicial authority to motivate offenders to accept needed treatment services and monitor their compliance and progress.^[128]

2.3.47 Problem solving courts introduced in Victoria include the Drug Court, the Family Violence Court and the Koori Court (which are all divisions of the Magistrates’ Court of Victoria). The Neighbourhood Justice Centre—a three-year pilot project of the Department of Justice—is another Victorian example of applying problem solving court approaches in a local neighbourhood context (the Yarra municipality).

2.3.48 Some commentators have proposed that the problem-solving court model be adapted for use with sex offenders in the form of a ‘sex offender reentry court’.^[129] Under this approach, once a term of imprisonment had been imposed, the court would approve a release plan (including treatment objectives) and would have an ongoing role in monitoring the offender’s progress while he or she was under sentence.^[130] It is envisaged that there would be a system of graduated release of an offender from prison or post-sentence civil commitment, based on the offender’s level of risk.^[131] Once an offender is released, it is suggested that further offending or engagement in risky behaviour could be ‘tested’ through the use of polygraph testing. The results of these tests, together with other evidence, could lead to the imposition of sanctions by the reentry court judge, such as revocation of parole for a released prisoner, or of conditional release for an offender detained under civil commitment procedures.^[132] Polygraph testing, it is further argued, may deter offenders from abusive conduct that might otherwise go undetected.^[133]

2.3.49 This model would actively engage the offender in reducing his or her level of risk. At the start of this process, the offender would be informed of the dynamic factors associated with risk, and how his or her behaviour in prison and in the community, including participation in treatment, can reduce his or her level of risk.^[134] The court, rather than a parole board, would determine whether and when partial release into the community should be permitted based on the offender’s risk level.^[135] Advocates of such an approach argue that it has the potential to improve the quality of interactions with offenders:

By requiring the released offender periodically to report to court in a manner similar to the way drug treatment courts function, the reentry judge can come to know the offender better and have an ongoing dialogue with him. By treating the offender with dignity and respect and demonstrating concern for his well-being,the reentry court judge can forge a personal relationship with the offender that can itself be therapeutic ... Moreover, affording offenders the opportunity to participate in decision making concerning the conditions of their reentry can have significant therapeutic value.

...

[Periodic] hearings will have the added benefit of placing offenders in the position of advocating to the court that they have gained from treatment and rehabilitation efforts, and that their present risk of reoffending is significantly reduced. Affording them this opportunity can further assist to facilitate their acceptance of wrongdoing, the breakdown of denial and cognitive distortions about it, and their willingness to accept rehabilitative efforts.^[136] (References omitted)

2.3.50 There was some support for this model in submissions.^[137]

2.3.51 It might be suggested that the Adult Parole Board already uses many elements of this approach in its management of sex offenders post-sentence. Unlike the re-entry court model, the Adult Parole Board is the authority to which offenders are answerable. One of the potential benefits of this approach is that a court is not involved in the ongoing management of offenders, which can be both time-consuming and costly.

Issues

2.3.52 An assessment of the merits of introducing a continuing detention scheme in Victoria involves assessing the adequacy of existing legal system responses to high-risk offenders, and any issues arising out of current approaches.

Sentencing Options

The Need for Continuing Detention

2.3.53 The extended and effective use of sentencing options in the case of serious offenders could arguably render post-sentence continuing detention and extended supervision schemes unnecessary: those offenders likely to be dangerous on their release from prison could be sentenced to longer, or even indefinite, sentences.^[138] There was some support for this view in submissions and consultations, including focus group discussions with community members. As one focus group participant expressed it, reflecting similar comments made in other focus groups: ‘This whole area wouldn’t be a problem if the sentences were adequate in the first place.’^[139]

The Potential Benefits of Sentencing Approaches over Post-Sentence Schemes

2.3.54 In the following sections of this Report, we discuss many of the criticisms of post-sentence schemes, including that they displace fundamental legal principles, risk contravening human rights, and may serve to ‘punish’ offenders on the basis of predicted, rather than proved reoffending. As discussed above, predicting the risk of reoffending at the level of individual offenders is also problematic.
2.3.55 Although sentencing options such as indefinite sentences are liable to be criticised on many of the same grounds as post-sentence detention and supervision schemes, they may also be viewed as a more transparent and just means of achieving community protection than post-sentence schemes. This is because the offender is aware at the time of sentencing of the consequences of his or her sentence. In comparison, extended supervision and continuing detention orders are not made until shortly before an offender’s sentence expires, and may not have been anticipated by the offender, who could otherwise have expected to be released without further restraint.
2.3.56 Some argue that preventive sentencing approaches are superior to post-sentence schemes because they provide offenders with a more effective incentive to reform. From the time offenders are sentenced, they are aware that their release is contingent upon their establishing that they are no longer a serious danger to the community. One submission, which took this view, supported making the possibility of continuing detention clear at the sentencing phase as a more effective means of engaging the offender in behavioural change:

A therapeutic approach would make the possibility of continued detention clear at the sentencing phase with specific individualised conditions regarding what the offender should do (e.g. targeted programs, agree to community supervision) rather than what the offender should not do (e.g. loitering, Internet access) in order to earn his or her way into community release rather than off continued detention. This approach is more engaging than threatening. [emphasis in original]^[140]

2.3.57 Similarly, the Springvale Monash Legal Service Inc suggested:

A more careful approach to sentencing is a more humane treatment of the prisoner who would then be made aware at the beginning of their sentence that they are to be imprisoned for a long or indefinite period. It also means that they can work towards their own rehabilitation with the goal of being deemed fit for re-entry into society by the expiry of their non-parole period.

The psychological impact of serving a sentence only to be advised that it has been extended would be devastating and not conducive to prisoner rehabilitation. Further, extending detention of a prisoner on the grounds that he is still a danger to the community/needs further rehabilitation is essentially conceding that his time spent in prison (during the term of the sentence) did not rehabilitate him or reform him so as he could re-enter society.^[141]

2.3.58 However the strength of this argument depends to an extent on the availability of appropriate treatment programs in which the offender can participate during sentence.^[142]

Preventive Sentences and the Principle of Proportionality

2.3.59 The imposition of longer than proportionate sentences, including indefinite sentences, on offenders purely on community protection grounds also runs contrary to the settled legal principle of proportionality. In the context of considering the validity of the Victorian indefinite sentencing provisions, the Court of Appeal in Moffatt, citing Veen v R (No. 1)^[143] and Veen v R (No. 2),^[144] observed:

It cannot be denied that the concept of preventive detention is at odds with the fundamental sentencing principle that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender.^[145]

2.3.60 The High Court and the Victorian Court of Appeal have suggested that in light of this, indefinite sentences are appropriately confined to exceptional cases, where the use of such powers ‘is demonstrably necessary to protect society from physical harm’.^[146] The sparing use of indefinite sentences and the serious offender provisions in Victoria must be viewed in this context.^[147]

Potential Effects of Preventive Sentences on Prisoner Numbers

2.3.61 Apart from questions of the appropriateness of these types of sentence, the use of preventive sentencing options to manage high-risk offenders has the potential to increase prisoner numbers greatly unless strict eligibility criteria are set. For example, in New Zealand, when the legislation allowing for preventive detention applied only to sexual recidivists, 23 sentences of preventive detention were made over an 18-year period (1968–1985).^[148] Following changes which included a reduction in the age of eligibility from 21 to 18 years, and an expansion in the range of qualifying offences to include all sexual crimes or crimes of violence, 56 sentences of preventive detention were imposed over a period of two and a half years (20 June 2002 to 17 January 2005).^[149] As of 3 December 2006, there were 206 preventive detention inmates in New Zealand.^[150] Similarly, under the United Kingdom scheme of indeterminate public protection sentences, which applies to 153 listed violent or sex crimes, around 1890 offenders received one of these forms of indefinite sentence between April 2005 and December 2006.^[151] This compares to four offenders in Victoria currently serving an indefinite sentence.^[152]

The Council’s View

2.3.62 The Council believes that provisions allowing courts to impose indefinite sentences, life sentences and longer than proportionate sentences can play a part in protecting the community against the most serious high-risk offenders. However, the United Kingdom and New Zealand experiences suggest that care must be taken in expanding these powers to capture a broader range of offenders. We strongly endorse the views of the High Court,^[153] reinforced by the Victorian Court of Appeal,^[154] that the power to order an indefinite sentence should be used sparingly and its use limited to exceptional cases in which there are clear public protection concerns, and where no other method of protecting the community through the imposition of a determinate sentence would be equally effective. While we are not persuaded of the need to extend the use of disproportionate sentences significantly for public protection purposes, in this Report we recommend a number of reforms to indefinite sentences, which we believe may improve their operation and in turn create greater confidence in their effectiveness. These are discussed in Section 3.23.

2.3.63 While beyond our terms of reference, we believe there is also a strong argument for investing more resources in the pre-sentence assessment process for offenders convicted of serious sexual and violent offences. This would allow for matters indicating future risk of reoffending to be identified at an early stage and enable courts to take this into account in setting an appropriate sentence. It would also permit the highest-risk offenders to be managed in a more active way from the point of sentencing and throughout their sentence. Over the long term, this could reduce the need to rely on post-sentence options to manage the risk posed by this class of offenders. We discuss this issue further at [2.5.74]–[2.5.75].

2.3.64 The Council accepts that even if risk assessments are conducted at an early stage in the process, and greater use is made of current sentencing provisions, sentencing outcomes will only ever provide a partial solution to managing the risk posed by high-risk offenders. For some offenders, the risk of reoffending may only become apparent part-way through a sentence, for example when an offender refuses to participate in treatment or is engaging in behaviour causing concern.^[155]

The Management of Offenders Under Sentence

Introduction

2.3.65 The rehabilitation and reintegration of high-risk offenders in Victoria are managed through the provision of rehabilitation programs and the parole system. Arguably, if high-risk offenders were assessed and identified early, were involved in long-term treatment programs throughout the course of their prison term, and were subject to graduated release with maintenance programs in the community, there might be no need for post-sentence supervision or detention to ensure community protection. However, it is possible that even these measures may not be able to remove risk completely. Some offenders may refuse to participate in treatment, even when it is offered. There may also be a critical few offenders who, despite treatment, still present a significant risk to society.

Availability of, and Timing of Sex Offender Treatment Programs

2.3.66 A number of submissions supported a greater investment in funding sex offender programs in Victoria, including provision for training of staff to deliver programs, and for ongoing research and evaluation into ‘what works’ in reducing reoffending.^[156] Many suggested that the resources potentially directed towards a new post-sentence continuing detention scheme would be better spent on improving the quality and range of, and access to, programs in Victoria.^[157]

2.3.67 To improve treatment outcomes, some suggested that offenders should be provided with access to programs at an earlier stage of their sentence.^[158] Most sex offender treatment programs are offered to offenders towards the end of their sentence as the parole date approaches or in some cases, when parole has commenced.^[159] By the time this treatment is offered, there is a risk that contact with other offenders may have further entrenched their beliefs and behaviours.^[160]

2.3.68 The timing of treatment may also have flow-on effects in relation to whether, and when, an offender is grated parole. In the case of serious sex offenders, their participation in sex offender treatment during their sentence is likely to be an important consideration in the Parole Board’s determination as to whether parole should be granted.^[161] Consequently, any delays in providing offenders with access to treatment ultimately may affect parole decisions.

2.3.69 Victoria Legal Aid was one of many bodies that supported the earlier provision of treatment:

VLA believes that programs should be offered earlier in the original sentence, to maximise the chances of successful completion ... it is essential that offenders have an entitlement to intensive programs during the supervision order, so that they have a fair opportunity to make (and demonstrate) progress in their rehabilitation ... offenders should have ongoing access to maintenance programs after the supervision order has ended.^[162]

2.3.70 Other issues raised in relation to the provision of treatment included: the effect of an offender’s security classification or offending type on the availability of treatment; the problems associated with combining treatment of offenders against children with that for offenders against adults; and—in relation to community-based treatment—the challenge of locating suitable accommodation for offenders.^[163]

2.3.71 The availability of suitable housing and community treatment programs are two issues that have a direct impact on parole outcomes. The parole system is based on the premise that adequate services exist to help parolees to reintegrate into the community. However, as the Adult Parole Board has observed, ‘community mental health services that are available to parolees are scarce and do not provide the level of safety the community requires, let alone the level of psychiatric support required by the many offenders who suffer from psychiatric and psychological problems’.^[164] For parole to work properly, there is a need for adequate resources for appropriate accommodation such as ‘halfway houses’ and support services.^[165]

Relationship between Access to Treatment and the Need for Continuing Detention

2.3.72 Fears were raised by some that a continuing detention scheme could be used to compensate for failure to provide offenders with access to adequate treatment during the period of their sentence. The Mental Health Legal Centre, which shared these concerns, called for better sentence management as a means of avoiding the need to extend a person’s term of imprisonment:

At the time of sentencing a person must be identified as a high-risk offender and thus ... provided with appropriate therapy and intense and ongoing rehabilitation, services must be available at this time. At regular intervals throughout the custodial detention period assessment must be made of this person’s progress within a therapeutic regime and, if appropriate, treatment intensified or modified. This will obviate the need to extend imprisonment. Any services provided to the person must be transportable and programs commenced within the prison maintained in the community at the level required.^[166]

2.3.73 On this basis it was suggested that if a continuing detention scheme is introduced, the state should be required to demonstrate that suitable treatment programs have been provided to offenders during their sentence before an order can be made under the scheme. The principle that offenders, while under order, have a right to have access to adequate services is sometimes referred to as the principle of reciprocal obligation. We discuss the relevance of this principle to post-sentence schemes further at [3.10.37]–[3.10.41] and [3.10.49]–[3.10.51].

Effects of Continuing Detention on Treatment

2.3.74 Another concern expressed was that continuing detention may have an adverse effect on treatment. Under the Victorian extended supervision scheme as well as schemes for continuing detention in other jurisdictions, treating clinicians are called upon to play a dual role: a treatment role, where doctors act in the best interests of their patients under the duty of beneficence that is integral to the practice of medicine, and a policing role, where doctors may act in the best interests of the public in assisting with the legal control of offenders.^[167]

2.3.75 This dual role may have substantial negative effects on the therapeutic relationship and may indeed have a ‘chilling effect’^[168] on disclosure and ultimately on the efficacy of treatment. If offenders are aware that disclosures during treatment might be used as evidence in an application for a post-sentence supervision or detention order, they may be less likely to participate fully (or to participate at all) in treatment programs.^[169] In addition, the threat of continuing detention may have an unintended effect on offenders who are not, in fact, likely candidates for post-sentence orders, as they too may fear that such laws might be applied to them in the future if they disclose too much information to their treating doctors.

2.3.76 On the other hand, it could be argued that the treating practitioner, who works with an offender on a daily basis, is more likely than an independent clinician to know whether a particular offender presents a serious risk of causing harm on his or her release, and if so, whether he or she is a good candidate for post-sentence detention or supervision. The separation between the treating practitioner and those who perform assessments may therefore be seen as unrealistic and as possibly leading to some dangerous offenders not being properly identified. The small number of highly qualified practitioners in Victoria renders this strict separation more problematic. This issue is discussed further in Section 3.6.

The Council’s View

2.3.77 The Council believes there is a strong case for managing offenders who pose the highest risk of reoffending under different arrangements to those used for the general prison population, in order to respond more effectively to the potential risk these offenders pose from the point of sentencing.^[170] The establishment of a High-Risk Offenders Board and appointment of a senior clinician as Risk Management Monitor, discussed in Part 3 of this Report, is one approach. We note that the Board could potentially manage not only offenders subject to post-sentence orders, but also other offenders falling into a high-risk category. Similarly, the Risk Management Monitor could play a greater role in improving accreditation, standards and guidelines for managing high-risk offenders more generally.

2.3.78 Other models for managing high-risk offenders on parole and under extended supervision arrangements in the community could include the introduction of a more coordinated multidisciplinary team approach, similar to the arrangements in place in Victoria under the Multiple and Complex Needs Initiative for people with a cognitive impairment, or the Multi-Agency Public Protection Panels established across the UK to manage the highest-risk offenders. In submissions, another model suggested was the Risk Assessment Management Program operating in Colorado in the US, which has been established as a specialist model of managing sex offenders.^[171] This program includes the use of multidisciplinary teams, polygraphs, treatment, containment plans, surveillance and compliance measures, interagency communication and manageable caseloads.^[172] These options are discussed in more detail in Part 3 of this Report.

Post-Sentence: Alternatives to Continuing Detention

2.3.79 There are a number of other approaches to protect the community from offenders who are at risk of reoffending. Measures such as special offences for sex offenders, civil protective orders, sex offender registers, multi-agency approaches and community programs, such as the Circles of Support and Accountability program, are all aimed at managing the risk of reoffending posed by known potential offenders in the community. The existing ESO scheme in Victoria also addresses the risks posed by offenders convicted of sexual offences against children, through intensive supervision and requiring the offender to comply with conditions to minimise the likelihood of contact with potential victims and to facilitate rehabilitation.
2.3.80 The types of responses outlined in this section of the Report may avoid some of the objections raised to continuing detention schemes. Unless an offender fails to comply with the conditions of the order or registration requirements or places himself or herself in a situation that constitutes an offence, he or she can remain in the community. In comparison, continuing detention schemes, and to a lesser extent extended supervision schemes, place significant restrictions on an offender’s liberty after the full sentence has been served without any further offences being committed. On this basis, alternative responses may be viewed as more consistent with human rights and fundamental legal principles.
2.3.81 However, some may see these responses as not going far enough to protect the community against the ‘critical few’ offenders who may place the community at a significant risk of serious harm, and may argue that the only way to protect the community from those offenders is to detain them beyond the end of their sentence. Such concerns led to the current inquiry into the merits of introducing a continuing detention scheme in Victoria.
2.3.82 The recent amendments to the extended supervision scheme, allowing offenders to be directed to live within the perimeter of a prison, could also be viewed as evidence of the need for a continuing detention scheme. The effect of this change has been to blur the distinction between ‘supervision in the community’ and ‘detention’, rendering that distinction either illusory at best, or deceptive at worst. In fact, these amendments reflect the practical difficulties experienced by Corrections in locating appropriate housing for offenders in the community, rather than any particular deficiencies in the supervision of offenders in the community. Similar issues are likely to arise if the Victorian Government decides to introduce a form of continuing detention that involves home detention or the detention of offenders in a facility in the community (such as a supported hostel), or any form of detention followed by graduated release into the community. The issue of accommodation is discussed further in Section 3.17.

2.4 Human Rights and Constitutional Issues

Introduction

2.4.1 In considering the merits of a scheme that would allow for the continuing detention of high-risk offenders, the Council has also considered issues that may affect the lawfulness of these schemes and human rights considerations. These issues are also discussed at [3.1.24]–[3.1.43] in relation to the structure of a continuing detention scheme.
2.4.2 Concerns about the human rights and procedural fairness implications of introducing a continuing detention scheme in Victoria were raised by a number of those who were opposed to the introduction of a continuing detention scheme. In its submission, the Supreme Court of Victoria, while not expressing a view on the issue of merit, noted that:

[t]he introduction of a scheme of allowing persons to be detained, or requiring them to comply with certain conditions in addition to serving the sentence imposed upon them for the commission of an offence, based on the risk that they may engage in further criminal offending, is a significant departure from fundamental principles underlying our criminal justice system.

Contrary to centuries of criminal jurisprudence persons will effectively be punished for possible future conduct which may or may not occur. What is involved is tantamount to a finding of prospective guilt.^[173]

Constitutional Issues

2.4.3 The constitutionality of indefinite sentences was upheld in Moffatt^[174] and that of continuing detention schemes in Fardon v Attorney-General (Qld).^[175] The issues considered by the High Court in Fardon and other cases pertaining to preventive detention schemes have generally focused on whether the exercise by state courts of the power to deprive people of their liberty under state-based continuing detention schemes is incompatible with, or repugnant to, the position of these courts under the Constitution, as a potential repository of federal judicial powers.^[176]

2.4.4 In Fardon six of the judges (with Kirby J dissenting) held the Queensland Act was constitutionally valid. The majority judgments held that the primary purpose of the Act is not punishment, but community protection. Some of the factors that were highlighted by members of the majority as supporting the validity of the scheme included:
- the Act is not directed against a particular person but all persons in a certain category;
- in determining an application under the Act, the Supreme Court is exercising judicial power in accordance with the rules of evidence;
- the Court has a discretion as to whether and what kind of order to make;
- the Court ‘must be satisfied of the ‘unacceptable risk’ standard ‘to a high degree of probability’;
- the rules of evidence apply;
- there is a process for appeal, and the hearings are to be conducted in public and ‘according to ordinary judicial processes’;
- the regime of continuing detention is connected to the prisoner’s ‘anterior conviction by the usual judicial processes’;
- there are adequate means of periodic review;
- the Act is not designed to punish the prisoner, but to protect the community; and

• nothing in the Act ‘suggests the jurisdiction conferred is a disguised substitute for ordinary legislative or executive function’, nor is there anything that would lead to a public perception that the judiciary is not acting independently.^[177]

2.4.5 Justice Kirby in his dissenting judgment held that the Queensland scheme conferred jurisdiction upon the Supreme Court of Queensland that was repugnant to its integrity as a court. He stated that ‘[i]n this country, judges do not impose punishment on people for ... future crimes that people fear but which those concerned have not committed’.^[178] A number of factors were discussed by Kirby J, leading to the conclusion that the Act was invalid, such as:

the Act’s regime is based on unreliable predictions of criminal dangerousness;
detention under the Act is a form of civil commitment of a person to a prison that is in essence punitive: ‘the imprisonment “continues” exactly as it was’;
the detention is a form of highly selective punishment directed at ‘a readily identifiable and small group of individuals’; and

• the detention is a form of double and retrospective punishment on a prisoner who has completed a judicially imposed sentence.^[179]

2.4.6 The result of Fardon’s case is that continuing detention legislation will be constitutionally valid, provided that a number of safeguards are met. However, because the majority did not consider policy issues, it is important to canvass these in the context of international human rights. In considering the merit of introducing a similar scheme in Victoria, it is also significant that unlike Queensland, Victoria is bound by a Charter of Human Rights and Responsibilities.^[180] If the government does decide to introduce a form of continuing detention in Victoria, it is arguable the concerns expressed by Justice Kirby in his dissenting judgment must be addressed as completely as possible to ensure that the Victorian scheme represents best practice and is compliant with Victoria’s human rights obligations.

Human Rights

Introduction

2.4.7 The Universal Declaration of Human Rights recognises the ‘inherent dignity and inalienable rights of all members of the human family’^[181] and sets out a series of rights as ‘a common standard of achievement for all peoples and all nations’.^[182]

2.4.8 The rights of prisoners and their entitlement to fairness in legal procedures are consolidated in a number of international instruments.^[183] The Covenant most relevant to continuing detention schemes is the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a signatory.^[184] The United Nations has also set out a number of rights for victims in its Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.^[185] Article 4 of that Declaration states that victims ‘should be treated with compassion and respect for their dignity’.

The Victorian Charter

2.4.9 The Charter of Human Rights and Responsibilities Act 2006 (Vic) was recently enacted in Victoria. The Charter enshrines human rights such as the right of every person to liberty and security^[186] and the right not to be subjected to arbitrary arrest or detention.^[187] It provides that a person must not be deprived of his or her liberty ‘except on grounds, and in accordance with procedures, established by law’.^[188]

2.4.10 Although the term ‘arbitrary’ is not defined in the Charter, according to the Human Rights Law Resource Centre:

it is clear and well established that the prohibition against arbitrary detention is more than a mere prohibition on detention that is ‘against the law’, with the term ‘arbitrary’ subsuming considerations of reasonableness, necessity and proportionality.^[189]

2.4.11 The Centre’s submission quotes the UN Human Rights Committee view that:

the notion of ‘arbitrariness’ must not be equated with ‘against the law’ but be interpreted more broadly to include such elements as inappropriateness and injustice. Furthermore, remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case ... the element of proportionality becomes relevant in this context.^[190]

2.4.12 It could be argued that because of the complexities of assessing risk and the high rate of ‘false positives’, continuing detention schemes based on such faulty ‘science’ are unjust or unreasonable and potentially amount to arbitrary detention.^[191] The Springvale Monash Legal Service Inc, in opposing the introduction of continuing detention, submitted that ‘it is patently bad policy to detain a person for a crime which they have not yet committed and may never commit’, suggesting that ‘[t]his offends the democratic ideal against arbitrary detention’.^[192]

2.4.13 The Charter recognises the right of all persons deprived of liberty to be treated with humanity and with respect for the inherent dignity of the human person,^[193] and that a person must not be tried or punished more than once for an offence.^[194] A person who is detained without charge must also be segregated from other people convicted of offences, except where reasonably necessary,^[195] and must be treated in a way that is appropriate for a person who has not been convicted.^[196] Other principles recognised by the Charter include the principle against retrospective criminal laws, including the principle that a penalty must not be imposed on a person for an offence that is greater than the penalty that applied at the time when the offence was committed.^[197]

2.4.14 It has been pointed out that continuing detention schemes ‘may infringe—and certainly will create the danger of infringement of—the basic human rights which should underlie the laws of a modern democratic society’.^[198]

2.4.15 All of these rights need to be taken into account when considering options for the post-sentence supervision and detention of high-risk offenders, and unless there are exceptional circumstances, any new legislative scheme should be compatible with them.^[199]

Procedure under the Charter

2.4.16 From 1 January 2007, the Member of Parliament introducing a bill into Parliament must make a statement assessing its compatibility with the Charter. He or she must either state that the bill is compatible and how this is so, or that the bill is not compatible and the nature and extent of that incompatibility.^[200] The Scrutiny of Acts and Regulations Committee must also consider all proposed legislation and report to Parliament on its compatibility with the protected rights. Parliament may override the operation of protected rights by declaring that an Act of Parliament will operate despite its incompatibility with a protected right or rights set out in the Charter.^[201]

2.4.17 From 1 January 2008, if there is a subsequent challenge to the compatibility of legislation with the Charter, the Supreme Court of Victoria may issue a ‘declaration of inconsistent application’. A declaration does not affect the validity, operation or enforcement of the legislation, unlike Charters in other jurisdictions such as Canada.^[202] Rather, it warns the government that the legislation is inconsistent with judicial understanding of the protected rights. Within six months of the declaration, the relevant minister must prepare a written response to the declaration and lay it before both Houses of Parliament and publish it in the Government Gazette.^[203]

Reasonable Limitations on Human Rights

2.4.18 Schemes allowing for post-sentence extended supervision and continuing detention are not necessarily incompatible with the rights enshrined in the Charter, provided that necessary protections are put in place. The Charter recognises that rights are not absolute and specifically allows for human rights to be subject to reasonable limitations ‘as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom’.^[204] Section 7(2) specifies a list of relevant factors to be taken into account in relation to whether a right should be limited, including:

the nature of the right;
the importance of the purpose of the limitation;
the nature and extent of the limitation;
the relationship between the limitation and its purpose; and

• any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.^[205]

2.4.19 While all of these issues are important to consider, the key questions in relation to the merit and structure of a continuing detention scheme include whether there is evidence that supports the need for such a scheme (for example, evidence that such schemes are an effective means of protecting the community) and whether there are any less restrictive means of achieving the same purposes. The High Court has recognised these principles as relevant in the context of indefinite sentences, finding that the use of these sentences ‘should be confined to very exceptional cases where the exercise of the power is demonstrably necessary to protect society from physical harm’.^[206] In doing so, a court must be satisfied that that a determinate sentence would fail to achieve the same objective.^[207]

2.4.20 Should a form of continuing detention be introduced in Victoria, protections will need to be put in place to ensure that any limits on the human rights outlined above are by the least restrictive means that will achieve the purpose of community protection. In Part 3 of this Report we address these issues directly, both in relation to ESOs and continuing detention.

2.4.21 Sometimes a balance must be struck between competing rights where the rights of one person represent a threat to another. Similarly, the protection of the community must be balanced against the maintenance of individual rights such as the right to liberty. It could be argued that potential victims’ right not to be the subject of offending behaviour must be recognised in any scheme of post-sentence supervision and detention.^[208] One consideration relevant to an assessment as to whether a limitation of a human right is reasonable is whether the need for that limitation arises as a result of protecting a competing right.

Due Process

Introduction

2.4.22 Procedural fairness, including the right to a fair hearing, is a fundamental principle of Australian law, maintaining a balance between the coercive powers of the state and the human rights of citizens of the state.^[209]

2.4.23 The right to a fair hearing is enshrined in the Victorian Charter, which provides that a person charged with a criminal offence or party to a civil proceeding has the right to have the charge or proceeding decided ‘by a competent, independent and impartial court or tribunal after a fair and public hearing’.^[210] The Victorian Charter also requires that judgments and decisions made by a court or tribunal in a criminal or civil proceeding be made public unless the best interests of a child otherwise requires or a law other than the Charter otherwise permits.^[211] Therefore courts retain their existing powers, such as the power to exclude the press or members of the public from court hearings.

The Principles of Proportionality and Finality in Sentencing

2.4.24 The principle of proportionality provides that the type and extent of punishment should be proportionate to the gravity of the harm and the degree of the offender’s responsibility.^[212] Post-sentence preventive detention is based on what the offender might do in the future and is not as firmly connected to the seriousness of the offence that led to the period of imprisonment, as is indefinite detention at the time of sentence. It might therefore be argued that post-sentence preventive detention offends against the principle of proportionality in sentence. On the other hand, it could be argued that questions of proportionality only arise if the detention is seen as punitive, and the majority of judges in Fardon’s case did not consider continuing detention to be punitive.

2.4.25 Post-sentence continuing detention legislation that authorises imprisonment may be seen as contrary to the principle of finality of sentence.^[213] The operation of such schemes at the end of the offender’s sentence leads to uncertainty on the part of the offender as to how long he or she must remain in prison after the sentence expires. Again, the strength of this argument is to some degree dependent on whether post-sentence continuing detention is viewed as punitive. Since the majority of the High Court in Fardon has held that the Queensland post-sentence scheme is not akin to a sentence of imprisonment, the principle of finality of sentence may not be at issue.

‘Rule of Law’ Principles

2.4.26 The general rule of law requires that there should be no punishment without law. An aspect of this principle is that once a sentence has been served, offenders can be said to have ‘done their time’ and so are entitled to freedom.

2.4.27 Continuing detention schemes extend the time that offenders spend in prison and arguably offend against this aspect of the rule of law.^[214] A number of submissions raised the issue that the legal system is founded on the principle that an offender is punished for an act committed and not for an offence that may be committed in the future, and that continuing detention offends this principle.^[215] Again, this conclusion depends on the proposition that continuing detention constitutes punishment. In Fardon’s case, the majority has concluded that imprisonment is not punishment if authorised for non-punitive reasons such as community protection.

2.4.28 Another important principle behind the rule of law is that governments should punish criminal conduct, not criminal types. Post-sentence preventive detention schemes carry the danger of detaining people because of their (prior) status as offenders. Again, however, it can be argued that continuing detention does not set out to punish people because of their status, but rather, the main aim is to protect the community. Others might argue that regardless of the purpose of such schemes the very act of detaining people in prison against their will amounts to punishment.

Procedural Fairness

2.4.29 Procedural fairness requires that safeguards operate to ensure that hearings carried out under schemes such as those for continuing detention operate in a way that is fair to the person being detained or supervised. Section 25 of the Victorian Charter enshrines the most fundamental right of a person charged with a criminal offence: that any person is presumed innocent until proven guilty according to law. There are also a number of ‘minimum guarantees’ set out in this section, including that a person charged with a criminal offence:
- be informed of the nature and reasons of charges brought against him or her;
- has adequate time and facilities to prepare his or her defence;
- be tried without unreasonable delay;
- be tried in person and have the right to defend him or herself;
- be told about the right to legal aid;
- has legal aid provided (if the eligibility criteria are met);
- has the right to call evidence and test any evidence called against him or her;
- has the assistance of an interpreter or any technology which would assist in his or her understanding of the proceedings; and
- is not compelled to give evidence against him or herself.

2.4.30 This right is specifically defined in terms of a person who has been charged with a criminal offence, rather than proceedings providing for the continuing detention of people held on the grounds of public protection. It is arguable, however, that as the deprivation of liberty is the most serious consequence of a judicial decision, procedural fairness requirements must be taken into account.^[216] The view taken by Justice Gummow in Fardon, that ‘the involuntary detention of a citizen in custody by the State is permissible only as a consequential step in the adjudication of criminal guilt of that citizen for past acts’ and ‘there remains a connection between the operation of the Act and anterior conviction by the usual judicial processes’,^[217] lends support to the argument that procedural fairness should extend to all proceedings extending from the original charges faced by an individual, including continuing detention.

Double Jeopardy and the Principle against Double Punishment

2.4.31 The question that underlies the principles discussed thus far is whether or not continuing detention amounts to punishment. If so, it could be argued that post-sentence preventive detention regimes offend against the principle protecting against double punishment. The Victorian Charter establishes that a person must not be tried or punished more than once for an offence.^[218] In submissions to the Council it was argued that continuing detention laws undermine this principle.^[219]

2.4.32 In Fardon, Justice Gummow was the only judge in the majority to address this issue, and he did so briefly. He found that the Act did not offend against the principle of double jeopardy as it did not punish Fardon twice or increase the punishment for the offences for which he was convicted.^[220]

2.4.33 The contrary argument is that a post-sentence scheme that involves imprisonment with the general prison population and is dependent on a previous finding of guilt for its operation must be seen as a form of further punishment above and beyond the original sentence already served for the offences. Thus the form of supervision or detention is crucial to ensuring that supervision or detention is not punitive in intent or effect.

2.4.34 Justice Kirby in his dissenting judgment in Fardon was clearly of the opinion that the Queensland scheme imposed double punishment, which he described as ‘contrary to truth and transparency in sentencing’.^[221] He stated that ‘It is destructive of the human capacity for redemption. It debases that judiciary that is required to play a part in it.’^[222] He added:

Effectively, what is attempted involves the second court in reviewing, and increasing, the punishment previously imposed by the first court for precisely the same past conduct. Alternatively, it involves the second court in superimposing additional punishment on the basis that the original maximum punishment provided by law, as imposed, has later proved inadequate and that a new foundation for additional punishment, in effect retrospective, may be discovered in order to increase it.^[223]

Criminal Detention Must Only Follow a Finding of Guilt

2.4.35 There is a general principle that involuntary detention should only be a consequence of a finding of guilt.^[224] The common thread running through the exceptions to the general rule is that they have a primary purpose that is non-punitive in nature.^[225] Some argue that continuing detention does not amount to punishment because:

Criminal punishment is based solely on a conviction for an offense and can occur only if there is such a conviction.

Preventive detention is based solely on a prediction concerning future offenses and can occur only if there is such a prediction. Therefore, preventive detention is not criminal punishment.^[226]

2.4.36 However, it could be argued that while preventive detention schemes may omit any mention of punishment, if imprisonment is considered a form of punishment, the effect of the detention is precisely that. For example, in Queensland, the continuing detention takes place in prison (not a hospital or a detention centre) and the detainee remains a ‘prisoner’.^[227]

2.4.37 Therefore, the question of whether continuing detention schemes undermine the principle that imprisonment should only be a consequence of a finding of guilt depends upon whether or not supervision and detention are viewed as punishment by the courts, the offender or the community.

The Principle Against Retrospective Laws

2.4.38 There is a general principle that legislation which criminalises certain conduct or sets up sentencing regimes should not apply retrospectively. The ICCPR and the Victorian Human Rights Charter set out the principles against retrospective criminal laws, including the principle that a penalty must not be imposed on a person for an offence that is greater than the penalty that applied at the time when the offence was committed.^[228] This is particularly salient in relation to continuing detention regimes that did not exist at the time the offender was originally sentenced.^[229] This is not to say that retrospective laws cannot be made within constitutional limits or that their passage is never justified.^[230]

2.5 Should Continuing Detention be Introduced?

Introduction

2.5.1 Our task is to advise the Attorney-General on the merits of introducing continuing detention in Victoria. The blurring of the distinction between supervision in the community and detention in custody that is evident in the existing Victorian ESO scheme has added a further layer of complexity to an already challenging task.

2.5.2 There is no way of knowing how much more effective a formal continuing detention scheme would be in meeting the objective of community protection than an improved ESO scheme, and whether there are other, less intrusive means of effectively protecting the community. The absence of evidence as to whether continuing detention schemes achieve their goal of protecting the community, and whether this could be achieved in a less intrusive way, is viewed as a reason for caution.^[231]

2.5.3 In the Victorian context it has been argued that the current measures, such as the ESO scheme—or the current measures with some improvements and/or additional resources—are sufficient to address the problem posed by high-risk offenders. However, concerns expressed by victims of crime and other community members during the Council’s consultations suggest that some view the current responses to these offenders in Victoria as inadequate to ensure community protection. The existing arrangements for accommodating some offenders within the perimeter of Ararat Prison, discussed at [2.3.23], further could be viewed as a de facto form of detention that is unsustainable in the long term and lacking in transparency.
2.5.4 There is also the challenge of accurately identifying those offenders who, among the number falling into a high-risk group, are more likely to reoffend, and in relation to whom this type of intervention is justified. The current state of knowledge regarding risk suggests that it is difficult, if not impossible, to make this kind of assessment.
2.5.5 The structure and scope of a post-sentence scheme are central to the merits question. If applied only to a small group of offenders, then the absolute number of ‘false positives’ will be smaller. A scheme with wider eligibility criteria risks magnifying the ‘false positives’ problem, with the result that a greater number of offenders who may never in fact have reoffended will be covered.

2.5.6 The costs of continuing detention also must be considered. There is no doubt that continuing detention schemes are costly—particularly in circumstances where a large number of offenders are to be managed under them, and where there is little prospect for release into the community. This danger has been realised in the US where there are now around 2700 offenders held under civil detention schemes,^[232] costing in the range of US$450 million a year. ^[233] Critics point to the diversion of resources away from other measures designed to reduce the risk of reoffending, such as correctional and community treatment programs and supervision. These approaches could have a far more significant effect on reducing overall levels of reoffending.^[234]

2.5.7 Those who support continuing detention schemes argue that the community must be protected from serious offenders, especially those who exhibit an ongoing disregard for the safety of others.^[235] Persons who show no remorse for their past serious offences and who do not avail themselves of the opportunities for treatment while in custody are of particular concern. There is also a fear about offenders who ‘simulate compliance ... and responsivity to treatment’ in order to secure their early release.^[236] There is a belief that these offenders ‘remain a significant danger ... after their discharge from custody’.^[237]

2.5.8 While some would argue that the limitations of risk prediction bring the viability of post-sentence schemes into question, given their focus on risk, a lack of certainty in relation to future offending may not be fatal to a scheme of continuing detention as long as the threshold for eligibility is set at a lower level.^[238]

2.5.9 Proponents of continuing detention schemes argue that the maintenance of individual rights such as the right to liberty must be balanced against the protection of the public. In particular, it is said that the rights of potential victims not to be offended against must be recognised and protected by removing certain high-risk offenders from the community. Allowing for the continuing detention of those at high risk of committing serious violent and sexual crimes is seen as a legitimate and proportionate response to the harm sought to be averted: such offending has a devastating and often lifelong effect on victims and their families.

2.5.10 Appropriately recognising and balancing the right to community safety can be a challenging task in an adversarial system of criminal justice, which requires prosecutors to represent the interests of the state and not to act as representatives or advocates for victims, or the communities affected by crime.^[239] The issue of balancing sometimes competing rights was raised in a number of submissions, including the following:

The question of balancing community safety and the safety and protection of children and young people must always be paramount and not secondary to the human rights of the convicted sex offender and convicted child sex offender.^[240]

2.5.11 Even those instruments designed to protect the rights of the individual acknowledge that rights are not absolute and that in certain circumstances, they must be subject to ‘reasonable limitations’. Some argue that whether or not a continuing detention scheme breaches human rights depends in large measure on how the scheme is characterised. If it is not characterised as punitive, but instead as designed to promote community safety and the rehabilitation of offenders, then it is said to be consistent with a human rights framework.
2.5.12 The introduction of a formal continuing detention scheme could also be viewed as having the positive result of increasing transparency. Under current arrangements, offenders subject to extended ‘supervision in the community’ can be housed within the walls of a prison. Extended supervision therefore operates in some cases as a form of continuing detention. If the current practice of housing offenders within prison walls continues, it could be argued that this should be properly recognised as a form of detention rather than as supervision in the community.

Need and Effectiveness: The Evidence

2.5.13 Issues of need and effectiveness are directly relevant to whether the limitations on human rights that continued detention schemes entail can be justified. The Victorian Charter of Human Rights and Responsibilities specifically provides that ‘a human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom’.^[241]

2.5.14 The issues which must be taken into account when considering what constitutes a reasonable limitation include:
- whether there is any evidence available that supports the need for the legislation (for example, research findings or empirical data);
- whether the limitation on the right could be described as rationally and proportionately connected to the purpose of the legislation; and

• whether or not there are any less restrictive ways of achieving the same purposes.^[242]

2.5.15 These considerations reflect the type of principles referred to by the UN Economic and Social Council in considering the International Covenant on Civil and Political Rights. These principles, referred to as the ‘Siracusa Principles’, provide that any limitation must be ‘necessary’, in that it:
- is based on one of the grounds which permits limitations (namely, public order, public health, public morals, national security, public safety or the rights and freedoms of others);
- responds to a pressing need;
- pursues a legitimate aim; and

• is proportionate to that aim.^[243]

2.5.16 In its submission, the Human Rights Law Resource Centre argues that ‘the preferable approach would be, so far as possible, to interpret and apply the s 7 limitation provision [in the Victorian Charter] consistently with the Siracusa Principles’.^[244]

2.5.17 The Law Institute of Victoria submitted that the limitation of rights inherent in a continued detention scheme cannot be justified, and referred to a lack of solid empirical data that community safety would be promoted:

[A] scheme that takes the grave step of restricting individual liberty for the purpose of community safety must be based on a solid well-documented link between the restriction of human rights and the purpose of that restriction. The justification for the restriction must, in the terms of the Charter, be demonstrable. Any limitations of rights must therefore be informed by research and accurate data on sex offending and not on media-generated community perceptions about who commits offences and how likely they are to reoffend.^[245]

2.5.18 In similar vein, a recent editorial in The New York Times questioned the underlying motivation for an ‘explosion’ of laws designed to keep sex offenders at bay, given the lack of evidence about their effectiveness in promoting community safety:

[W]hat you see is not a rational system for managing risks and rehabilitating people, but a system for managing public fear.^[246]

2.5.19 Legal responses to sex offenders such as continuing detention for ‘sexual predators’, sex offender registers and community notification similarly have been characterised by David Garland as ‘expressive, cathartic actions, undertaken to denounce the crime and reassure the public’, rather than measures with a real capacity to control future crime.^[247]

2.5.20 The stated purpose of the three existing Australian schemes of continuing detention is to ensure the adequate protection of the community.^[248] The current schemes have only been operating in Australia for a very short period of time and it is difficult to find measures to establish whether they are indeed effective in improving community protection. Continuing detention schemes aim to avoid not harm, but potential harm, which is empirically difficult to establish.^[249]

2.5.21 The effects of continuing detention at other points in the justice system also must be taken into account in assessing whether such schemes do in fact enhance community safety. For example, continuing detention could have an adverse impact on the number of guilty pleas if offenders are aware that a consequence of entering a plea of guilty to certain offences will be to render them eligible for post-sentence continuing detention.^[250] As discussed at [2.3.74]–[2.3.75] above, it may also lead to a decline in the number of offenders accessing treatment programs, and possibly reduce the efficacy of such programs if offenders are concerned about the use that may be made of any disclosures during treatment to support an application for post-sentence detention. Therefore, some might argue that rather than enhancing public safety, such schemes may in fact place the community at greater risk.

2.5.22 The Victorian Centres Against Sexual Assault (CASAs) were among those who expressed reservations about the effectiveness of continuing detention schemes, commenting that ‘[d]espite the popularity of these laws in other States, we are not aware of any research that has yet established that the scheme would actually reduce rates of sexual offending against children’.^[251]

2.5.23 The Law Institute of Victoria also pointed to a lack of evaluative evidence, submitting that:

a thorough assessment of the effectiveness of these existing responses should be conducted before introducing further legislation which strongly curtails the rights of certain offenders without demonstrable evidence that it will achieve its purpose of protecting community safety.^[252]

2.5.24 The LIV noted that ESOs offer a less restrictive option of managing possible risks:

The Serious Sex Offenders Monitoring Act 2005 (the Act) sets up a very extensive scheme for the ongoing supervision and monitoring of sex offenders. It is too early to be able to assess its effectiveness in reducing the risk of re-offending and protecting the community. The Act significantly impacts on an individual’s rights to freedom of association and movement allowing the Parole Board to direct where an individual should live, when they must be at home, who they can associate with, where they can visit and the type of activities that they cannot participate in. Without commenting on the merits of this earlier legislation, the LIV argues that it does clearly provide a less restrictive means of dealing with community concerns about safety.^[253]

Is Continuing Detention the Best Use of Resources?

2.5.25 Continuing detention schemes operate in a broader context of serious violent and sexual offences. Current legal responses to dangerous offenders in Australia and overseas have been criticised for ignoring the realities of sexual and violent offending and focusing disproportionately on some offenders over others—typically on those who have committed offences outside the family.^[254]

2.5.26 This focus on the small group of high-risk offenders whose behaviour has been dealt with in the criminal justice system is said to divert funds away from combating other forms of violence, including abuse within the family.^[255] Some have argued that resources should be directed towards the treatment of children and young people with sexual behaviour problems,^[256] and in building the evidence for ‘what works’ in preventing reoffending.^[257]

2.5.27 These types of views were reflected both in submissions and in comments during the Council’s consultations.
2.5.28 The Law Institute of Victoria was among those who questioned the considerable costs involved in continuing detention, for the justice system and for the community as a whole. It pointed to the costs of housing offenders, whether within or outside prison, in an already stretched system. It argued that these resources would be more productively spent on treatment programs and post-release transitional programs:

[T]he question [is] whether such expenditure is the most effective allocation of resources in rehabilitating sex offenders and protecting the community. The LIV submits that the resources that would be needed to fund a continued detention scheme could be better allocated to programs that aim to engage offenders while in prison and upon release ... The LIV submits that resources would be better allocated to treatment programs starting when an offender commences their sentence.

The LIV also notes that there are inadequate services available to offenders following release from prison and that ongoing treatment often has to be privately funded by the offender. One of the risk factors identified in the Discussion Paper is an offender having poor social support or networks. In light of this the LIV submits that greater resources should be allocated to post release programs.^[258]

2.5.29 Similar views were expressed by others,^[259] including the Springvale Monash Legal Service Inc:

The prison system, while clearly an essential part of our criminal justice system, absorbs resources that might otherwise have been spent not only on better post-release support, but also on the sorts of social initiatives that may prevent people offending in the first place ... the most effective use of funds is undoubtedly schemes which aim not to ‘warehouse’ offenders but ones which tackle the actual problems and therefore are dually corrective and preventative.^[260]

2.5.30 While costings of the continuing detention schemes operating in other Australian jurisdictions are not available, the experience overseas suggests that the resources required to support continuing detention are likely to be significant.

2.5.31 For example, in the United States in-patient treatment programs offered to sex offenders detained under civil detention laws, as reviewed in 2005, ranged from US$70,000–125,000 per offender per year (or around A$90,100–154,00).^[261] California, which had one of the highest annual costs in 2004, spent $46 million (US) to detain 368 offenders. It has been estimated that proposed changes to these laws may result in the costs associated with housing these offenders rising to $100 million (US) per annum within a decade.^[262] Additional commitments could result in capital outlay costs to build additional detention facilities of ‘several hundred million dollars’.^[263] For example, the government in the state of Washington converted a warehouse in Seattle into a home for men on conditional release. The facility has 26 cameras to monitor residents, a dozen workers, a surveillance booth overseeing the living area and a 1700-pound magnetic door. The cost of converting the facility was $1.7 million (US); there are two men living there so far.^[264]

2.5.32 The costs associated with imprisonment in Victoria are around $222 a day per prisoner, or $81,000 per year.^[265] If offenders subject to post-sentence detention are detained in separate facilities, either on prison grounds or in the community, the costs may be even higher due to the need to construct new facilities and to staff these facilities. Home detention—one possible alternative option—costs around $20,000 a year per offender.^[266]

2.5.33 The real difficulty is finding suitable accommodation for these offenders in the community.^[267] The authorities in Victoria have faced enduring and persistent challenges in locating appropriate community-based accommodation for sex offenders. Calls for continuing detention schemes, with their capacity to allow the removal of offenders from society, can in this sense be seen as the manifestation of the community’s increasing intolerance of a class of offenders, which has been described as viewing them as a ‘human form of toxic waste’.^[268]

2.5.34 Research shows that the number of sex offenders who end up in prison represents only a small minority of all sex offenders, and sex offenders have far lower rates of recorded recidivism than is commonly believed.^[269] It has been argued that if the primary purpose of continuing detention is to protect people from violent and sexual offenders, then detaining a small group of people who have already offended is a strategy of only limited effectiveness in light of evidence that most violent and sexual offences are committed by people with no relevant prior convictions.^[270] There remains the significant issue of the large number of offenders within the community who are not in prison and have never proceeded to court.^[271]

2.5.35 There are also dangers in adopting initiatives that operate on the assumption that all sex offenders are dangerous and very likely to commit further sexual offences against a stranger. Specialised interventions such as registries, community notification and continuing detention for sex offenders may not represent an optimal allocation of crime prevention resources. These interventions aim to protect potential victims from attacks by strangers, which constitute only a small minority of cases, and do not protect people from family members and acquaintances. Early intervention with young offenders, programs to teach effective parenting skills and better community education about the true nature of sex offending—and the most common source of the danger—may provide more effective mechanisms for reducing victimisation. Such measures may be better able to protect against the most common form of sex offending: that which occurs within the family unit.

2.5.36 Given that measures such as continuing detention cannot prevent all recidivism, and overall are likely to have only a small impact on the total number of sexual offences that are committed, it has been suggested that resources to reduce victimisation should be provided for additional or alternative approaches, such as increased funding for earlier risk assessment, treatment programs in prison and in the community, and early intervention.^[272] It is argued that policy-makers need to decide whether to provide sex offenders with a ‘realistic opportunity to change and to earn their release or whether the real purpose is to simply confine them for as long as possible’.^[273] That choice will determine where costs should be allocated.

2.5.37 The Council notes that the Department of Justice has identified sex offender management as a priority area for the Department. The Department’s Strategic Priorities 2007 Statement recognises that: ‘It is critical that there is confidence in the ongoing management and supervision of high risk serious offenders’.^[274] The Department’s response to this challenge is to:

Implement a new supervision and case management model for sex offenders within a risk management framework. The management of those offenders who are at greatest risk of re-offending will be strengthened by earlier assessment, increased treatment capability, enhanced transitional services including accommodation support, and increased monitoring of high risk offenders in the community.^[275]

Can Continuing Detention be Justified?

2.5.38 The final issue with respect to the merits of continuing detention is whether, taking into account all the competing arguments for and against continuing detention, such a measure can be justified.
2.5.39 The Law Institute of Victoria was among those who thought not:

[A] scheme of post sentence detention of high-risk offenders seriously restricts the human rights of those who have been convicted of past offences and undermines fundamental legal principles that are central to our justice system. The LIV is particularly concerned that such a scheme would fail to comply with the Charter of Human Rights and Responsibilities 2006 (the Charter).

The LIV recognises that the community has valid concerns about sex offending but submits that the restrictions inherent in a post sentence detention scheme cannot be justified.^[276]

2.5.40 The certainty, or otherwise, of the risk prediction is critical. Some commentators^[277] argue that if it were possible to identify those offenders who would go on to commit further offences with 100 per cent accuracy, the focus rightly would move on to issues of seriousness and of how soon the offender is likely to commit the offences. However, if the likelihood of reoffending is less than certain, as the current state of knowledge about risk assessment would suggest, continuing detention could be justified ‘only in the most exceptional case’.^[278] This is because the certain and serious intrusions on the rights of offenders would not adequately be balanced by the certainty of these offenders committing further violent offences resulting in serious harm to members of the community.

2.5.41 The Office of the Public Advocate specifically referred to this issue when arguing against the introduction of continuing detention in Victoria:

OPA considers that there are many options available to the Victorian Community to rehabilitate people who have a high risk of re-offending. The legal and human rights at risk in a detention scheme are of the highest and most valued order and their removal could only be justified if there were solid grounds. The fallibility of predictions as to who will be an offender does not counter-balance the removal of these rights. Further, the introduction of [a] punitive scheme may be counter-productive to the identification and rehabilitation of possible offenders and inadvertently lead to a less safe community.^[279]

What Does the Community Think of Continuing Detention?

2.5.42 Members of the legal profession and mental health profession who were consulted were overwhelmingly opposed to the introduction of a continuing detention scheme in Victoria.^[280] The CASA Forum has also been a vocal opponent of the introduction of such a scheme.^[281]

2.5.43 As discussed above, the introduction of measures such as continuing detention in Australia, and civil commitment schemes for ‘sexually violent predators’ in the US, typically has been driven by media calls for measures that will keep the community safe from those whom the community believes to be dangerous (most often child sex offenders), rather than by evidence that these schemes will in fact make the community safer. The extent to which these media views reflect, as opposed to drive, public opinion in this area is uncertain. The interrelationship between the media, politicians and public opinion is dynamic and complex.^[282]

2.5.44 While the media often claim strong community support for continuing detention and other measures designed to remove offenders from society, views expressed by ordinary members of the community in our focus groups and other consultations suggest a far more complex and nuanced range of opinion. Our consultations revealed near unanimous acknowledgment that legal and institutional responses to the vexed problem of high-risk offenders need to be effective, defensible, and based on evidence about ‘what works’ in creating a safer community. However, a range of strong views were expressed about how the objective of community protection could best be achieved, with varying levels of support for continuing detention in some cases and outright rejection of the idea in others. This, in our view, reflects the complex competing interests at stake that have made this inquiry so challenging.
2.5.45 The following quotations are presented to give a broad sense of the nature and variety of focus group discussions:

Human rights for potential victims have to be equally protected, if there is a doubt, they should be more important than the rights of the offender ... if they have been convicted and you’ve got a doubt, I think you’re entitled to treat them differently from someone who hasn’t done anything.^[283]

I think when [offenders] commit a crime against another member of the community they forgo some of their civil liberties.^[284]

It [post-sentence detention] is undermining the entire basis of our legal system which is innocent until proven guilty. You’re basically saying this person is guilty of something they haven’t done.^[285]

If you’ve sentenced someone to ten years, they’ve served that time, whether they are a risk or not ... I don’t think you can do it [i.e. detain someone]. Supervision is a different issue. They [offenders] should have to report to police three times a week or live in a certain areas.^[286]

2.5.46 Some supported continuing detention only if adequate protections were put in place for the offender, and the offender was treated humanely:

If people are treated humanely in there I don’t have a problem [with continuing detention].^[287]

You’ve got to try and provide them with rehabilitation and reassess them all the time and give them the opportunity, whether or not they take it. ^[288]

2.5.47 The question of where offenders would be detained was also an issue of concern to a number of focus group participants. Several participants specifically opposed offenders being detained in prison:

You have to make it less than a prison, because they have to be able to go out and access services as part of the community. Even when they go in, right from the very beginning, it should be about rehabilitation and continuing assessment.^[289]

[Offenders] deserve to get out of the prison atmosphere after they are released even if they don’t get freedom.^[290]

I would feel uncomfortable if they were living next door, anyone would be ... but I don’t believe they should be kept in mainstream prison. ^[291]

These people have completed the sentence they have been given. Yes they are high risk offenders, but if they can be housed in the community somewhere that is lower risk to the community they should be.^[292]

2.5.48 Some, while supporting detention in prison, believed these offenders should be housed separately from the general prison population:

Once they’ve served their sentence, the punitive is over, yes, if they are still a risk, keep them in, but give them a separate area out of the general population.^[293]

I think it should be in a unit in the mainstream prison and it can be reduced from there.^[294]

2.5.49 Others thought it was appropriate for offenders subject to continuing detention to be held in prison, on grounds of safety and/or cost:

If [these offenders] are that high a risk they should still be in gaol ... If after ten or twenty years they are still such a high risk to the community, why put them into the community, why put the community at risk when they are the innocent victims?^[295]

Why spend money on a separate community for them? Put them in gaol.^[296]

2.5.50 One participant suggested that the real concern should be how secure the accommodation is, rather than the nature of that accommodation:

It’s all a furphy: you’re either in prison or you’re out. Whether it’s a house with a garden or a secure area, what difference does it make? The only criteria that matters is how easy it is to escape.^[297]

2.5.51 The possible cost of introducing such a scheme was another issue raised by many, and it was suggested that resources should be spent on offenders at an earlier stage:

This would cost a lot of money that could be spent on treatment or even better assessment.^[298]

I think you should have the resources earlier, instead of spending enormous amounts later to keep people in prison, when they mightn’t have needed to re-offend if they were sent somewhere proper.^[299]

2.5.52 Devoting resources at an earlier point in the process was viewed by a number of participants as important, regardless of whether in the end some form of post-sentence interventions were found to be warranted:

They should be given every opportunity to get out of the category [of being ‘high-risk] beforehand, but if for whatever reason, if they’re at that category, really there’s two parts to the question: what to do prevent [them being] high-risk; and if they are high-risk, for whatever reason, even if they’ve slipped through the gaps on that day (day of release) what to do with them.^[300]

2.5.53 The lack of evidence that existing continuing detention schemes were successful in reducing reoffending was another recurring theme. A question consistently raised during our focus group sessions was ‘What evaluations have been done of these schemes?’. Some viewed the lack of evidence concerning effectiveness, and problems in assessing risk, as reasons to reform the existing extended supervision order scheme, rather than expand it to include detention. The following is a typical comment:

It seems like reforms to the current approach would be the way to go until there is more evidence available ... You could toughen up the extended supervision orders, if it is a serious sex offender ban the person from living within 50 m of city centres or make them wear satellite tags.^[301]

2.5.54 In the second series of focus groups, participants were specifically asked if they believed that introducing continuing detention would make the community safer. Some expressed the strong opinion that community safety would increase:

If people were dangerous or perceived to be dangerous, were off the streets, they would have to be safer.^[302]

The community has to be safer because they are locked up.^[303]

2.5.55 However, others, while agreeing that community members would feel safer if continuing detention was introduced, were less sure of whether the community would, in fact, be safer:

I think the community would definitely feel safer, whether they would be safer is another question.^[304]

I think the community would feel safer in the same way as when politicians promise more police, whether it makes us safer is another story. But community perceptions may change.^[305]

You are talking about 12 to twenty people ... a very small group of people. I don’t think that personally and that our general experience of crime is at that high end. I think that in general we don’t have contact with crime at that high end. There is the possibility that there is another Mr Forde out there and he may not have offended, but will he?^[306]

2.5.56 Submissions to the Council from community members mirrored the complexities of opinion that were expressed in the focus group discussions. Again, comments ranged from strong support for continuing detention, as a way to protect the community from serious crimes, to entrenched opposition, based on ethical and practical considerations.
2.5.57 For example, one submission strongly supported the introduction of ‘extended sentences’, citing the significant harm suffered by the writer’s daughters, who had been sexually abused:

My two daughters who were victims have major health problems, disorders and phobias as a result [of sexual abuse]. They have no knowledge of where their attacker is and they fear they will see him at the local shopping centre. They fear for their children. They don’t feel safe ... I plead with you to allow for extended sentences and to take an extensive history of these criminals so that the chance of repeat offending will be more accurately assessed.^[307]

2.5.58 This submission also objected to offenders receiving short sentences.
2.5.59 The Crime Victims Support Association supported special post-sentence measures for dangerous offenders, suggesting:

We all know that it is in the public’s best interest that dangerous offenders remain in custody until the risk to innocent people no longer exists. We need measures that will serve to protect Victorian families and children from known individuals who are at high risk to re-offend.^[308]

2.5.60 Submissions made by a Year 12 Legal Studies class overwhelmingly supported continuing detention. One student, reflecting the views of many of her fellow students, wrote:

I believe that if a person is considered to be a danger to the community, then keeping them away from the community is the sensible option. The safety of the general public should be top priority.^[309]

2.5.61 On the other hand, a number of submissions from community members opposed the introduction of continuing detention. One submission showed particular concern that such a scheme would breach an offender’s right to liberty:

Victoria should not introduce post-sentencing schemes of any kind because it imposes breaches of liberty according to the Constitution, the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and the Charter of Human Rights and Responsibilities Act 2006 (Vic). That concept of liberty is what protects me, you and every other person in the country. It is so important that it bears repeating; that’s why it has so many declarations and charters and covenants to remind you of its necessity. So let me say one more time: do not breach our liberty!^[310]

2.5.62 One submission cautioned against such a move, on the basis that it ran contrary to established legal principles:

Once a prisoner has served [his or her] sentence, that should be the end of the issue. It does not seem appropriate that a person’s sentence is extended or not extended just because someone thinks that they will offend again. On top of degrading principles of the legal system, this might imply that the sentence of the original judge was ‘soft’ or ‘not appropriate’.

The use of extended sentencing seems like a dangerous slope to be sliding down.^[311]

2.5.63 Another submission referred to existing evidence about reoffending rates, issues associated with treatment efficacy, the potential diversion of resources away from treatment, and human rights issues. It suggested:

The reasonable conclusion from the facts and issues discussed is that post-sentence supervision and detention orders should not be pursued for high-risk offenders, as it is the wrong approach for the wrong group of offenders [‘stranger danger’ offenders]. The proposed system would not achieve the purposes of the protection of the majority of potential victims because it does not target the main offenders [family members and acquaintances]. The program would therefore not contribute to the rehabilitation of the main offender group or the actual target offender group.^[312]

2.5.64 Similar concerns were raised in a submission in response to the Council’s initial Issues Paper:

The main impetus behind such laws appears to be the prevention of future sexual offences. However the practical effectiveness and impact of such laws need to be considered ... [S]uch a proposed law would actually be focussing on only a small minority of those who will actually commit sexual offences. Most of these types of offences are going to be committed by people who have not been convicted of such crimes before. When one remembers that the primary purpose of such laws is protection of the community from violent and sexual offences, we see that at best their effectiveness is going to be limited ... [T]he majority of violent and sexual offences are actually committed by family members or acquaintances, and the majority of these go unreported. It therefore seems that our attention would be better focussed here.^[313]

2.5.65 Finally, victims of crime who attended a meeting on the issues were strongly supportive of continuing detention.^[314]

The Council’s View

Introduction

2.5.66 Just as our consultations have revealed strongly held opposing views on the merits of introducing a formalised continuing detention scheme in Victoria, so too has the Council struggled to achieve consensus.
2.5.67 There is much, however, about which the Council is in agreement. We recognise that the state has a legitimate role in protecting community members from criminal offences. We acknowledge the concerns expressed to us about the potential of sex offenders, in particular, to reoffend upon their release from prison if adequate supervision and other protections are not put in place. We believe that the goal of community protection is important and valid, and strongly endorse the adoption of a range of measures that may reduce the risk posed by serious offenders.
2.5.68 We believe that where a longer than proportionate sentence, life sentence, or indefinite sentence is justified due to the seriousness of the original offence and concerns about future danger evident at the time of sentencing, this issue is properly dealt with at the time of sentencing. In Part 3 of this Report, we discuss some changes to indefinite sentences which we believe will improve their future operation.

Operational Challenges

2.5.69 It seems to us that the major challenge for the ESO scheme has been finding suitable community-based accommodation for offenders subject to orders. Many people understandably are concerned about the possibility of known sex offenders being housed in their neighbourhood, near children and other vulnerable people. We as a community are increasingly intolerant of sex offenders, making their reintegration back into the community more and more difficult. The Council believes, however, that the community can play an important role in minimising the risks posed by these offenders. The Circles of Support of Accountability programs operating in Canada, the US and the UK are illustrative of some of the positive gains that can be made in the management of high-risk offenders through the more active involvement of the community in monitoring offenders and the reintegration process. We note that this idea found some support among focus group participants.^[315]

2.5.70 We do not underestimate the real challenges faced by Corrections and others administering ESOs, including finding suitable accommodation, managing community expectations, and dealing with the day-to-day requirements involved in supervising what are in some cases a difficult group of people. The Council does not, however, believe that these problems alone provide a sufficient basis for extending the existing supervision scheme to include detention.
2.5.71 It is worth noting that the issue of housing will remain, even if continued detention is introduced. Continuing detention schemes contemplate the eventual return of offenders to the community, if their risk of reoffending should subside. Thus the issue of accommodation is deferred rather than resolved. Further, while the level of supervision and monitoring required may potentially be quite resource-intensive and challenging to coordinate when compared to detention, we do not believe that detention can ever be justified on the basis of convenience alone. While the state has a legitimate right to protect its citizens, it also has an obligation to achieve community protection through the least restrictive means possible. We discuss some possible approaches to the challenge of housing offenders in Section 3.17 of this Report.

The Broader Context

2.5.72 The Council is particularly concerned about the potential for post-sentence schemes to be viewed as a ‘quick fix’ solution to the failings of a correctional system. Where these schemes do exist, they must operate in conjunction with a properly resourced and managed correctional system, and should be seen as a last resort when all other interventions have failed.
2.5.73 As detailed elsewhere in this Report, many advocated an increased investment in both preventing and responding to sexual assault, by means including assessing and treating offenders, improving interventions for adolescent offenders, increasing our understanding of factors that may prevent sexual offending, and improving public awareness and education about the issues rather than committing those funds to continuing detention.

2.5.74 We do not feel sufficiently informed to comment on the adequacy or otherwise of funding in these areas. However, we do believe that any investment made in services at an earlier point in an offender’s contact with the criminal justice system is likely to reap far more significant rewards in terms of protecting the community than interventions at a post-sentence stage. The need to view ‘the problem’ of dangerous or high-risk offenders in the broader context of community and criminal justice responses to sexual and violent crime more generally was an issue frequently raised during our consultations on the Discussion and Options Paper.^[316]

2.5.75 The Council therefore believes it is important that any changes to post-sentence options should form part of a broader whole-of-government strategy to improve the management of high-risk offenders and reduce the risks to the community posed by their reoffending. Some of the initiatives that might be considered as part of this strategy could include:
- increasing the resources available for earlier assessment of high-risk offenders so that sentencing courts are provided with better information to inform their use of current sentencing options;
- providing funding for research into best practice in the area of risk assessment and for training and accreditation of those with the expertise to conduct risk assessments, as well as the treatment of sex offenders and other high-risk groups;
- increasing funding for treatment and rehabilitation programs offered both in prison and in the community, including those specifically targeted to young offenders, and for further research into the most effective ways of treating these offenders, including evaluations of the results of existing programs and approaches;
- providing additional funding for community and judicial education about sexual offending with a view to improving awareness about sexual assault, low reporting rates and the treatment of victims of sexual offences throughout the criminal justice system;
- supporting research and evaluation to increase our understanding of sexual assault in order to assess the effectiveness of prevention strategies.

2.5.76 The Council is aware of government commitments in the area of sexual assault in recent years and commends these attempts to address the problem of sexual assault more broadly. For example, we note that the 2006-07 state budget announced a $31 million package to be provided over four years to fund reforms to the justice system, additional services to support victims of sexual assault, and treatment services for young offenders and children with behavioural problems.^[317] We also note that the Department of Justice has identified the implementation of a ‘new supervision and case management model for sex offenders within a risk management framework’ as a response to the challenge of sex offender management.^[318]

2.5.77 New approaches to the active management of high-risk offenders, such as the High-Risk Offenders Board and the Risk Management Monitor recommended in this Report, may also alleviate the need for post-sentence orders by improving the rehabilitation prospects of high-risk offenders while under sentence.
2.5.78 The Council is also concerned about the possible effects of continuing detention on the operation of the criminal justice system more broadly. For example, offenders may be less inclined to plead guilty to offences that make them eligible for continuing detention at a future time. This may result in court delays and cause further trauma to victims who are called upon to give evidence and subjected to cross-examination, which may in turn have a negative effect on victims’ willingness to report crimes such as sexual assault. Continuing detention may also have a negative effect on offenders’ willingness to participate fully, or at all, in treatment programs if they believe that disclosures may be used against them in an application for a continuing detention order. This may impair the treatment of not only the highest-risk offenders, but of all offenders who may fear the possible consequences of disclosures made during treatment. The effects on treatment have already been experienced in many US states with civil commitment schemes.

The Relevance of Structure

2.5.79 The Council has been conscious that an assessment of the merit of continuing detention is contingent on the nature of the scheme in question. The jurisdictional context is also important. A scheme found to be constitutionally valid in jurisdictions such as Queensland and Western Australia, which do not have a Charter of Human Rights or a Victims’ Charter, may not be appropriate for a jurisdiction such as Victoria.^[319]

2.5.80 As the High Court recognised in considering the constitutionality of the Queensland scheme in Fardon, the structure of a scheme and its jurisdictional context are critical parts of the equation.^[320] For example, a scheme that seeks merely to incapacitate offenders, has few procedural safeguards, places few obligations on the state, and/or results in ongoing ‘punishment’ could be viewed as contrary to human rights and basic legal principles, and its introduction as coming at too great a cost. On the other hand, a scheme with procedural safeguards and protections that is aimed at reducing risks by working with the offender on those factors associated with recidivism, while at the same time monitoring and supervising the offender to ensure compliance, could be seen as having greater merit—particularly if the limitations of risk assessments and the likelihood of ‘false positives’ are taken into account.

Conclusion

2.5.81 In the end, a majority of the Council has concluded that regardless of how a continuing detention scheme were to be structured, the inherent dangers involved outweigh its potential benefits, particularly taking into account the existence of less extreme approaches to achieving community protection, such as extended supervision.
2.5.82 A majority of the Council is persuaded by the many submissions that have been made to us expressing serious concern about whether such an extreme measure as continuing detention can be justified, particularly when less draconian means exist to promote community safety. We share concerns about the inability of clinicians to predict risk accurately, the potential of such schemes unjustifiably to limit human rights and due process, and the lack of evidence to support claims that continuing detention will reduce overall risks to the community. We agree that there are other, more cost-effective means of reducing risk. In doing so we acknowledge that these issues are complex and that support in the community for the introduction of such measures is far from universal.
2.5.83 Although the existing ESO scheme has been in operation for only a short period of time, a majority of Council members believe supervision in the community is equally able to achieve the goal of community protection, and does so in a less intrusive way that avoids many of the pitfalls of continuing detention. For example, while the current scheme contemplates detention as a possibility (through breach of the conditions of the order), detention can only be triggered by the actions of the offender, rather than by predictions about what he or she might do. This approach is not only more consistent with current legal principles, but also largely reflects the approach adopted in Canada, New Zealand and the United Kingdom to managing high-risk offenders post-sentence. Such a scheme further acknowledges that the level of intervention that might be justified by risk assessments with 100 per cent accuracy is very different from that justified by current assessments of risk that are no better than chance.
2.5.84 It is possible that we would have decided differently if no other alternatives existed for managing these offenders post-sentence. However, Victoria already has a post-sentence extended supervision order scheme, which regulates the movement and permissible behaviour of offenders and which provides for the possibility of detention on breach of conditions. Until such time as this scheme has been evaluated and found to be deficient in some significant respect that goes beyond the practical challenges, such as finding suitable accommodation in the community, we are not prepared to recommend the more radical step of continuing detention.
2.5.85 A minority of the Council has, after careful consideration, come to the firm view that a continuing detention scheme should be introduced in Victoria to deal with the ‘critical few’ offenders who pose a serious risk to the safety of community members. Those in the minority consider that the law should allow for the continuing detention of offenders who pose a high risk of committing further serious crimes, particularly sexual offences. A transparent scheme with appropriate checks and balances, it believes, is a legitimate measure to avert offences against innocent community members and to protect the community more generally. It bases its support on the assumption that a continuing detention scheme will include all of the features and safeguards recommended in Part 3 of this Report. This will ensure that competing rights and interests of offenders and the broader community are balanced appropriately and orders made in only the most compelling cases.

2.5.86 The Council accepts that the Victorian government may choose to introduce a continuing detention scheme. Indeed, we note that in November 2006, in the context of a pre-election campaign, the Labor Party’s Community Safety Policy committed a re-elected Bracks Government to ‘work[ing] with the Sentencing Advisory Council with a view to introducing a continued detention scheme for those serious sex offenders that pose a high ongoing risk to the community’.^[321]

2.5.87 Under our original terms of reference the Council was asked to provide advice on the possible structure of a continuing detention scheme. This advice is provided in Part 3 of this report.
2.5.88 The US experience suggests that one of the real dangers of introducing continuing detention is that once legislated, it will become a permanent fixture of the Victorian justice system without real evidence of its effectiveness and continued value.

2.5.89 For this reason, should continuing detention be introduced in Victoria, we recommend that a system of annual reporting on the operation of the scheme should be introduced as part of the legislation. We also recommend that the scheme be independently evaluated to gauge its effectiveness, as the legislation establishing the New South Wales scheme provides.^[322] If the model recommended in this report is introduced, the Council suggests five years from the date the scheme comes into operation as an appropriate review date.

2.5.90 We further would urge that should continuing detention be introduced, its use should be limited to the critical few—those who present a ‘vivid danger’ to the community on their release.^[323] The same concerns apply, although to a lesser extent, to the existing ESO scheme.

2.5.91 The Council believes that it is critical that all of the protections we identify in this report are built into any continuing detention scheme introduced. For this reason the recommendations in this report should be viewed as a package, and severable only to the extent that safeguards are not eroded.
2.5.92 If the government decides against introducing continuing detention in Victoria, then the Council believes that it should consider amending the existing ESO scheme to improve its operation. Many of our recommendations about the form of a continuing detention scheme could equally be applied to enhance the operation of the extended supervision scheme. In Part 3 we offer our suggestions about how the existing ESO scheme could be changed.
2.5.93 We believe that accommodation arrangements for offenders should be addressed as a matter of priority. The housing of offenders within prison walls under the guise of ‘supervision in the community’ is unsustainable and clearly contrary to the intention of the legislation.
2.5.94 Although we acknowledge the enormous challenges in locating suitable accommodation, our focus group discussions suggested that a range of responses, such as the use of secure housing facilities located away from residential areas, may provide an acceptable community solution. As a possible way forward, we suggest that further discussions should take place with housing providers and those who work with offenders, victims and the broader community to identify viable approaches. We discuss the issue of accommodation further in Section 3.17 of this Report.

Part 3. Structure

3.1 Structure of a Post-Sentence Scheme

Introduction

3.1.1 In addition to being asked to advise on the merits of a continuing detention scheme, the Council has been asked to advise on the structure of such a scheme, should the government decide to introduce one, including:
- the offences for which an order might be available;
- the procedure for making a continuing detention order;
- the body that would be empowered to apply for such an order;
- the criteria for making an order and the procedure for assessing an offender against these criteria;
- the body that should be empowered to make an order;
- the duration of such orders;
- the processes for review; and
- the safeguards that could be incorporated to ensure that such orders may only be imposed in appropriate circumstances.
3.1.2 As discussed in Section 2, a majority of the Council is in favour of the existing ESO scheme being reformed, rather than a new continuing detention scheme being introduced. The Council, however, is unanimous in its view that the current form of ‘extended supervision’ in Victoria is unsatisfactory, and should be reformed.

3.1.3 In this part of the Report, the Council presents its recommendations in relation to an integrated post-sentence scheme that retains a form of the ESO: the High-Risk Offender scheme.^[324] We also present possible reforms to the existing ESO scheme, as an alternative to introducing an integrated continuing detention and extended supervision scheme.

3.1.4 The Council, like a number of those who made submissions,^[325] believes that post-sentence detention and supervision should be viewed as an extraordinary measure and that this should guide the formulation of any model. For this reason we believe any scheme allowing for continuing detention or extended supervision should be narrowly drawn and limited in scope, and should build in protections for those who might find themselves subject to it.

3.1.5 By their very nature, post-sentence continued detention schemes place human rights in jeopardy. Such schemes involve a certain limitation of the right to liberty, and depending on their structure, also have the potential to infringe other human rights protections. The adverse effect of such schemes on an offender’s human rights, however, must be balanced against the competing rights or concerns of the community to be protected from the possibility of serious harm. As pointed out by the Victorian Equal Opportunity and Human Rights Commission:

There is no doubt in the Commission's mind that one of the most profound abuses of a human being's right to dignity, personal integrity, security of person and respect, is abuse at the hands of another. Sexual assault and violence are clearly crimes that abuse a person's human rights. When the abuse is committed by an adult against a child the consequences can be particularly profound.^[326]

3.1.6 In developing the model outlined in this Report, the Council has endeavoured to ensure that the scheme is consistent with both the Victorian Charter of Human Rights and Responsibilities and the Victims’ Charter, and to ensure that appropriate safeguards are built in.
3.1.7 Some of the safeguards recommended in this report include:
- improving the procedures for screening and assessing possible candidates for detention and supervision orders, to ensure that applications for orders are limited to the highest-risk offenders;
- establishing a new office of the Risk Management Monitor, which would have responsibility for accrediting risk assessors and setting standards and guidelines around risk assessment and risk management;
- designating the Director of Public Prosecutions, as an independent authority, as the appropriate officer to make the application;
- requiring applications for orders to be determined by a Supreme Court judge;
- providing a right to appeal court decisions (including a decision by the court to grant an application for an order);
- limiting orders to two-year renewable periods;
- establishing a specialist body—the High-Risk Offenders Board—to manage offenders subject to orders and to provide independent oversight of the development and delivery of each offender’s risk management plan, including a power to direct agencies to comply with directions given;
- requiring annual reviews by a High-Risk Offenders Board and permitting court reviews at any time, by application;
- requiring annual reports on the operation of the scheme; and
- providing for an independent review of the legislation once it has been in operation for a five-year period.
3.1.8 If continuing detention is introduced in Victoria, the Council considers these and the other recommended safeguards to be critical to the effective and just operation of the legislation.
3.1.9 As suggested at [2.5.72]–[2.5.75], we also believe it important that any changes to post-sentence options should form part of a broader whole-of-government strategy to improve the management of high-risk offenders and reduce the risks to the community posed by high-risk offenders.

Recommendation 1:Form of a Post-Sentence Scheme

1—A Reformed Extended Supervision Scheme

If a continuing detention scheme is not introduced in Victoria, the Council recommends that:

(2) The amendments to the Serious Sex Offenders Monitoring Act 2005 (Vic) should incorporate all of the safeguards outlined in Part 3 of this Report; and

(3) Unless otherwise indicated, existing provisions in the Serious Sex Offenders Monitoring Act 2005 (Vic) should be retained.

1—B New High-Risk Offender Scheme

Recommendation 2: Improving Responses to High-Risk Offenders

improving the pre-sentence risk assessment process to identify high-risk offenders and to ensure that information about future risk is available to sentencers at the time of sentencing;
investing additional resources in rehabilitation and treatment programs offered in prison and in the community, and in the evaluation of such programs;
exploring the feasibility of setting up a pilot Circles of Support and Accountability program, and other programs that may increase community involvement in the reintegration, monitoring and support of offenders in the community;
investigating alternative approaches to managing the risks of offenders safely in the community, including housing strategies; and
supporting research and evaluation to increase our understanding of sexual assault, in order to assess the effectiveness of prevention strategies.

A Criminal Justice Model or a Medical Model?

3.1.10 There are two broad approaches to post-sentence detention and supervision: a criminal justice model and a medical model. The medical model treats sex offenders as mentally ill, with diagnosable sexual disorders that affect their ability to control their behaviour. In contrast, the criminal model sees sex offending as analogous to other types of offending and holds sex offenders responsible for their actions. It recognises that sexually deviant conduct is still intentional conduct.^[327] However, this model is not exclusively penal: it is also concerned with treatment issues.^[328]

3.1.11 For example, while Australian post-sentence detention and supervision schemes follow a criminal justice model, the purposes of the conditions of extended supervision orders in Victoria include facilitating the rehabilitation and care and treatment of the offender. As with all offenders, treatment aimed at behavioural modification as well as social support mechanisms may aid in reducing recidivism.

3.1.12 The approach to be taken to high-risk offenders has particular consequences for how a continuing detention scheme should operate and how it should be structured. The medical model would require the cooperation of mental health professionals and a broadening of the criteria for involuntary civil commitment.^[329] The criminal justice model takes the view that sexual offenders are responsible for their actions and deserve punishment, but measures should be introduced to reduce recidivism.

3.1.13 The Criminal Bar Association, while expressing in-principle opposition to continuing detention involving prison, demonstrated some support for treating the issue of continuing detention as a health issue rather than as a matter for the criminal justice system, submitting that:

the CBA recognises that within our community there are some who have been convicted of committing very serious offences and who have completed their term of imprisonment and in respect of whom the available medical evidence predicts a likelihood that they will re-offend, thereby representing a real danger to both themselves and/or the community. In the main these persons are serious sexual offenders with a pre-disposition to paedophilia. Some are serious violent offenders.

The CBA is not opposed to persons within either category being detained beyond the expiration of their sentence in an appropriate medical facility other than a gaol for the purpose of receiving rehabilitative treatment, followed by ongoing supervision in the community. This then becomes a health issue and not a criminal justice issue.^[330]

3.1.14 However, medical models of detention allowing for the civil commitment of sex offenders into the mental health system after release from prison have been criticised on a number of grounds, including that they:
- unnecessarily pathologise sex offences;
- have an anti-therapeutic effect;
- involve the warehousing of offenders who do not have a mental illness in mental health facilities, affecting the services and treatment of other people in the mental health system; and

• have significant resource implications.^[331]

3.1.15 Experience of the medical model in the United States highlights some of the practical difficulties of such an approach:
- Treatment regimes are expensive and no definitive conclusion has been reached regarding their effectiveness; many offenders (three-quarters of offenders in California) simply do not show up for treatment sessions on the basis of their lawyers’ advice—admission of past misdeeds during therapy could make release impossible.
- Only a small fraction of committed offenders have ever completed treatment to the point where they could be released; across the United States, of the 250 offenders who have been released unconditionally since the first law was passed in 1990, about half were released on legal or technical grounds unrelated to treatment.

• The cost of treatment programs under a medical model is ‘virtually unchecked and growing’—on average, civil commitment programs cost taxpayers four times more than keeping these offenders in prison.^[332]

3.1.16 The United States experience has led some to conclude that:

When you consider the recent explosion of local laws designed to keep sex offenders at bay—restricting where they can live and work, forcing them to the literal fringes of society, like some human form of toxic waste—what you see is not a rational system for managing risks and rehabilitating people, but a system for managing public fear.^[333]

Resources and Services

Issues and Consultations

3.1.17 As discussed in Section 2.5 [334]this Report,³³⁴ post-sentence schemes are not cheap. While interstate experience suggests that the number of offenders subject to post-sentence supervision and/or detention should be relatively small, any scheme could potentially apply to a large number of people. This will require the commitment of significant resources in order to put into place adequate infrastructure for the rehabilitation of offenders. At a roundtable discussion with legal professionals and police the comment was made that if a post-sentence scheme were to be introduced with insufficient resources, it would amount to little more than a poli[335]al exercise.³³⁵

3.1.18 A number of those who made submissions emphasised the importance of providing sufficient resources, including comprehensive treatment and rehabilitation programs during sentence and the operation of post-sentence orders, as well as programs after the offender is released from prison or any post-sentence order, to ensure the offender’s smooth transition into the community and to help prevent him or her from reoffending after any orders cease.^[336]

3.1.19 The Springvale Monash Legal Service submitted that:

It is also necessary for any such arrangements to ensure a smooth transition from the post-sentence detention order to the offender’s release into the community, with the maintenance and extension of rehabilitative treatment for post-detention offenders being a vital component of the effort to prevent recidivism. This requires a concomitant boost in resources allocated to community treatment for former prisoners, the absence of which may only render the imposition of a detention order ineffective in the rehabilitation of the offender. Worse, in the absence of suitable care, treatment and reintegration programs for former prisoners, the extended period of separation from the community resulting from a post-sentence detention order may only result in increased isolation and alienation from the community upon release, thus making recidivism more, rather than less likely.^[337]

3.1.20 The Mental Health Legal Centre suggested that there should be monitoring, evaluation and coordination of services (including clear lines of responsibility), improvements to rehabilitation program release planning, ‘seamless provision of community supports’, and proper resourcing of the system.^[338]

The Council’s View

3.1.21 The Council believes that central to any post-sentence scheme and the protection of the human rights of those on orders under the scheme is the adequate provision of funding and resources at each level of operation. We are particularly concerned that all eligible offenders are provided with ample opportunities to address their offending and rehabilitation long before a post-sentence order is contemplated.
3.1.22 The Council recommends that regardless of whether the existing ESO scheme is retained and reformed, or a new high-risk offenders scheme is introduced, consideration should be given to providing additional funding and resources at various points in the system to support the proper operation of the scheme, including:
- to the DPP and Victoria Legal Aid for costs associated with the making of applications and appeals, including legal representation and the preparation of expert assessment reports;
- to the courts to accommodate the additional work that post-sentence schemes generate, including the court time involved in hearing applications for orders and reviews;
- to those involved in the assessment and treatment of offenders subject to post-sentence orders to ensure that there are appropriate assessment and treatment services available; and
- to those involved in finding or providing housing for offenders on post-sentence orders, including resources for the development of community-based and secure housing alternatives.
3.1.23 Without this investment being made, the Council has serious reservations about whether the objective of the scheme—to enhance community protection by providing for the care, control, treatment and rehabilitation of high-risk offenders—can be met. We believe that proper resourcing of the scheme is critical in order to effectively manage the challenges posed by high-risk offenders.

Recommendation 3: Resources and Funding

to support the role of the Director of Public Prosecutions, including in making applications for new orders, reviews and appeals, and the development of guidelines;
to support the provision of funding to Victoria Legal Aid for legal assistance to offenders, including funding for hearings under the scheme, the preparation of independent psychiatric and other medical reports, and appeals;
to manage the additional caseload of the Supreme Court (and, under the Serious Sex Offenders Monitoring Act 2005 (Vic), the County Court) involved in hearing applications for orders, reviews, breach proceedings and appeals;
to establish the proposed High-Risk Offenders Board and Risk Management Monitor and to put in place the necessary infrastructure to support the work of these new bodies;
to enable Corrections Victoria to carry out its responsibilities effectively under the legislation, including the management of offenders subject to orders, the provision of support to the screening body and High-Risk Offenders Board, and the development of operating guidelines and procedures;
to investigate and fund the development of community-based accommodation and secure housing alternatives for offenders subject to post-sentence orders;
to allow for the proper assessment and treatment of offenders subject to post-sentence orders, including funding for the delivery of treatment services and evaluation of risk assessment and treatment approaches; and
to run training and information sessions for the judiciary, legal practitioners, police, mental health practitioners and others involved in the delivery of services under the legislation.

The Victorian Human Rights Charter

Compatibility with Human Rights

3.1.24 The Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) was enacted in July 2006 to protect and promote human rights.^[339] Although the Charter is not necessarily a barrier to the introduction of a continuing detention scheme in Victoria, it does bring sharply into focus the need to ensure, as far as possible, that any scheme introduced is consistent with human rights and if it limits those rights, that such limitations are reasonable and can be properly justified.

3.1.25 Other Australian post-sentence detention schemes that the High Court has found to be constitutionally valid were introduced in jurisdictions without a Charter of Human Rights, and must be considered in that context. As Chief Justice Gleeson noted in Fardon v Attorney-General for the State of Queensland:

the lawfulness of systems of preventive detention is considered in the light of the particular constitutional context. In the United States, the right to substantive due process is significant. In Canada, the Charter of Rights and Freedoms must be considered.^[340]

3.1.26 Similarly, Justice McHugh, looking at the Queensland scheme, observed that:

it does not follow that, because State legislation requires State courts to make orders that could not be countenanced in a society with a Bill of Rights, the institutional integrity of those courts is compromised.^[341]

3.1.27 Key rights and principles relevant to the possible introduction of a continuing detention scheme include:

• the right to freedom of movement;^[342]

• the right to privacy and reputation;^[343]

• the right to freedom of thought;^[344]

• the right to liberty and security;^[345]

• the right to humane treatment when deprived of liberty;^[346]

• the right to a fair hearing;^[347]

• the presumption of innocence and the right to procedural fairness;^[348]

• the right not to be punished more than once;^[349] and

• the principle against retrospective criminal laws.^[350]

3.1.28 Under the Charter, each new bill introduced into Parliament must be accompanied by a ‘statement of compatibility’^[351] which must state whether or not, in the opinion of the member introducing the bill, the bill is consistent with human rights. The statement must also provide an explanation of how the proposed legislation is compatible with the Charter, and if any part is considered to be incompatible, the nature and extent of the incompatibility.^[352]

3.1.29 It could be argued that post-sentence continuing detention of its nature violates human rights and that such a scheme would therefore be incompatible with the Charter. There are two ways in which this might be addressed:

(1) By ensuring that there are adequate safeguards built into the legislation to protect human rights;

(2) By demonstrating that the restriction or degree of interference is reasonable and can be justified in accordance with the ‘reasonable limitations’ clause of the Charter. The Charter provides that ‘a human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom’.^[353]

3.1.30 The reality is that a scheme that detains people post-sentence will limit the right to liberty, no matter what safeguards are built into the scheme. The issue will be whether the restriction is reasonable and can be demonstrably justified in the circumstances.

Is the Restriction or Degree of Interference Reasonable and Demonstrably Justified in the Circumstances?

3.1.31 The issues that must be taken into account when considering what constitutes a reasonable limitation include:
- whether the limitation is provided for by an Act, regulation or under the common law, as any limitation on rights must be authorised by law;
- whether the purpose of the legislation is important (for example, whether it relates to an area of immediate concern to the community);
- whether there is any evidence available that supports the need for such legislation (for example, research findings or empirical data);
- whether the limitation on the right could be described as rationally and proportionately connected to the purpose of the legislation;
- whether there are any less restrictive ways of achieving the same purposes; and

• whether the limitation is a reasonable limit that ‘can be demonstrably justified in a free and democratic society based on human dignity, freedom and equality.^[354]

3.1.32 Figure 1 illustrates the steps that might be involved in assessing whether a particular restriction or limitation is reasonable and can be demonstrably justified.

Figure 1: When is a Limitation Reasonable and Demonstrably Justified?

(1) Is the limitation provided in an Act, regulation or common law? (Action which limits rights must be authorised by law.)

(2) If yes, is the purpose of the legislation important? (Clearly and precisely articulate the purpose of the limitation. Does it address a specific area of public or social concern that is pressing and substantial?)

(3) If yes, is material available that demonstrates that the purpose of the legislation is important? (Material may include research findings, consultation findings, reviews and empirical data.)

(4) If no, gather material and reconsider the policy proposal or legislation. If yes, is the limitation on the right rationally and proportionately connected to the objective you are trying to achieve? (Is the limitation likely to achieve the objective? Does the policy or legislation limit the right only to the extent necessary to achieve the objective?)

(5) If yes, does the limitation fall within the range of reasonable solutions to the problem? (Are there less restrictive means to achieve the purpose of the legislation? Incorporate safeguards where appropriate.)

(6) If yes, if the limit is imposed on the human right, does the weighing of the limit against the right strike the correct balance? (Does the balance accord with the values of a free and democratic society based on human dignity, equality and freedom? Pay particular attention to the nature of the human right and the importance of the values underlying the human right.)

(7) If yes, the limit contained in the policy proposal or legislation is probably justifiable as a reasonable limit on the human right under s 7. If no, the limit contained in the policy proposal or legislation is probably not justifiable as a reasonable limit on the human right under s 7.

3.1.33 Examples of issues that may support an argument that a restriction is reasonable include:
- Competing rights—if the interference with some human rights is necessary to protect other human rights under the Charter, the limitation may be found to be reasonable. Under any human rights scheme it is often necessary to balance competing rights: the issue is how that balance is appropriately struck.
- Safeguards—even if the safeguards in a scheme do not prevent the limitation of a particular human right, they may support an argument that the limitation represents the least restrictive means of achieving the purpose of the scheme.

The Least Restrictive Alternative

3.1.34 The principle of the least restrictive alternative is relevant both to the merits of introducing a continuing detention scheme, and to the structure of such a scheme, if introduced. It also is relevant to the operation of a reformed ESO scheme. In Chapter 2 we focused on the issue of whether this test could be met when justifying the introduction of a continuing detention scheme in Victoria. In this chapter we focus on the relevance of this principle to how a continuing detention scheme might be structured.

3.1.35 According to this principle, one of the central considerations of any continuing detention scheme should be that decisions under the scheme are made by reference to the least restrictive means of achieving the purpose or purposes of the scheme. The concept of the ‘least restrictive means’ or ‘least restrictive alternative’ is of particular relevance to where offenders under post-sentence orders are housed, the conditions of detention or supervision, and the way in which these offenders are managed.^[355] For example, if community protection can be enhanced by the control, care and treatment of an offender in the community, then this should always be preferable to detaining that offender.

3.1.36 Although the other Australian jurisdictions that have introduced continuing detention do not have formal instruments recognising human rights, such as a Human Rights Charter, courts have generally interpreted the relevant legislation in a way that is consistent with the ‘least restrictive alternative’ principle. For example, courts have approached the question of whether a continuing detention order should be made as a two-step process requiring consideration first of whether the risks posed by an offender can be safely managed by a less restrictive means, such as under supervision in the community.^[356] The New South Wales scheme expressly recognises this principle in providing that a continuing detention order may be made only if the court is satisfied to a high degree of probability:

that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision; and

• that adequate supervision will not be provided by an extended supervision order.^[357]

3.1.37 In a Victorian context, this principle is reflected in mental health and disability services legislation. For example, one of the criteria for involuntary commitment under the mental health legislation is that the person cannot receive adequate treatment ‘in a manner less restrictive of his or her freedom of decision and action’.^[358] Section 4(2)(b) of the Mental Health Act 1986 (Vic) further requires that any restriction on the liberty of patients must be kept to the minimum necessary in the circumstances. Victoria Legal Aid in its submission pointed to this approach as providing a possible model for structuring a continuing detention scheme.^[359]

3.1.38 During one of the focus groups held by the Council, a suggestion was made that all offenders assessed as eligible for the scheme should first be put on an extended supervision order and considered for continuing detention only if they demonstrated an unwillingness or a failure to comply with the conditions of extended supervision—which would take this protection a step further. A potential benefit of this approach might be to allow an offender’s risk of reoffending to be better assessed in a community environment, under close supervision. On the other hand, such an approach could be seen as unnecessarily placing the community at risk.

Continuing Detention and the Least Restrictive Alternative

3.1.39 Continuing detention schemes deprive an offender of his or her liberty despite the offender having fully completed the sentence set by the court for his or her offence. The significance of introducing measures that would displace a citizen’s fundamental human right to liberty, in our view, should not be underestimated.
3.1.40 While many of the schemes in operation require a court first to be satisfied that the offender’s risk cannot be managed by supervision in the community, we are concerned that they give only limited recognition of the ‘least restrictive alternative’ in the way they are structured and managed.
3.1.41 To better reflect this principle we recommend that:
- A high-risk offender (HRO) order that allows for both detention and supervision should only be considered as an option if the court is satisfied that the offender’s risk cannot be safely managed in the community by making the offender subject to supervision alone under a supervision HRO order;
- HRO orders that include detention should expressly allow for the possibility of the offender being subject to other less restrictive forms of control during the period of the order, in a similar way to standard sentences that provide for the possibility of parole.
3.1.42 This approach would both maximise the legislation’s compliance with the ‘least restrictive alternative’ principle, and provide the necessary flexibility to those administering the orders in managing offenders. Under the model proposed, increasing levels of freedom could be afforded to offenders who have demonstrated their progress under orders, while still providing the safety net of detention in cases where an offender is demonstrating behaviour of concern and/or this is considered the only means of safely containing the risk. Modifications to the arrangements under which offenders are managed could be effected without having to apply to a court. Such a model might also provide a greater incentive to offenders detained under a HRO order to work towards their rehabilitation, as by demonstrating their progress in treatment, they may increase their level of freedom.
3.1.43 We discuss the structure of the new high-risk offender order at [3.2.12]–[3.2.15].

3.2 A New Post-Sentence Scheme

Introduction

3.2.1 In the Discussion and Options Paper, we presented a possible model for continuing detention in Victoria to stimulate discussion and debate. The model drew on existing schemes operating in Queensland, Western Australia and New South Wales, as well as international approaches to the management of high-risk offenders. The package included possible reforms to indefinite sentences that might result in a more consistent model of management for high-risk offenders.
3.2.2 Feedback received in consultations and submissions has greatly assisted the Council in refining and building on the discussion model to create the post-sentence detention and supervision model referred to in this Report (the high-risk offender model). The high-risk offender model is illustrated in Figures 2 and 3 below.
3.2.3 The general principles that have guided the proposals in this Report are:
- the scheme must not be designed to punish the offender, but rather to protect the community;
- continuing detention should be a last resort, with a presumption in favour of the least restrictive alternative;
- the scheme should be targeted primarily to offenders who are at high risk of committing serious sexual offences against either adults or children, and include offenders convicted of murder, manslaughter or attempted murder;
- the state should provide the means by which an offender may meaningfully participate in rehabilitation and treatment;
- the scheme should aim to provide incentives to offenders to address factors related to their risk, while recognising the purpose of community protection as paramount;
- there should be independent oversight and coordination of agencies managing high-risk offenders and improved mechanisms to provide courts with the information they require;
- the legislation should, as far as possible, be consistent with the Victorian Charter of Human Rights and Responsibilities and the Victims’ Charter; and
- strong procedural safeguards should be built into the legislation.

3.2.4 Because continuing detention is a radical step, and should be seen as an exceptional measure, the Council considers that our recommended safeguards should be viewed as essential elements of the scheme. The critical importance of adequate safeguards was stressed by many,^[360] including the South Eastern Centre Against Sexual Assault:

All processes should be put in place to maintain the legal rights of offenders as well as protecting victims. Any reduction in offenders’ legal rights diminishes the rights of the whole community and will eventually impact on victims.^[361]

Relationship with the Extended Supervision Scheme

A New High-Risk Offender Scheme

3.2.5 We were specifically asked to consider how a continuing detention scheme would operate in relation to the existing power of the courts to place an offender on an extended supervision order under the Serious Sex Offenders Monitoring Act 2005 (Vic).
3.2.6 All three Australian schemes that provide for continuing detention also allow for the making of a supervision order. Integrating the power to make detention and supervision orders makes sense, as this ensures that the procedures that apply to both are consistent and that offenders under orders are governed by similar requirements.

3.2.7 During our consultation, it was generally assumed that, should a system of continuing detention be introduced, it would operate alongside the current extended supervision order (ESO) scheme.^[362]

3.2.8 The Council’s discussion model proposed replacing the current ESO scheme with a streamlined post-sentence scheme that would allow for the making of a single order: a high-risk offender order (HRO order). It was envisaged that the HRO order would allow offenders under orders to be managed either under supervision in the community (as under the current ESO scheme) or in detention, depending on which option was the less restrictive means of effectively managing the offender’s risk. The model also proposed the establishment of an independent High-Risk Offenders Panel to manage offenders subject to high-risk offender orders.
3.2.9 Consistent with the original proposals, the Council recommends that the management of offenders under post-sentence orders should be integrated into a single scheme. The original proposal in the discussion model for a high-risk offender order that would allow for both detention and supervision has been retained. However, consistent with schemes in other Australian jurisdictions, we have come to the view that the integrated scheme should nonetheless retain the option for the court to determine that the order is limited to non-custodial supervision. We believe that this appropriately recognises that detention is an extreme measure that should only be available where absolutely necessary to achieve community protection. For this reason, the Council recommends that the body responsible for determining whether an offender is placed on a high-risk offender order (the Supreme Court) should also determine whether the offender is managed on this order by way of:
- supervision in the community (a supervision HRO order); or
- a combination of supervision and detention (a detention and supervision HRO order).
3.2.10 This is consistent with the split between supervision orders and continuing detention orders in other states, but allows a more streamlined, flexible approach to managing those offenders who may be placed on orders.

An Alternative Approach: Reforming the SSOMA Scheme

3.2.11 As an alternative to the introduction of a continuing detention and supervision scheme, the Council has made suggestions as to how the existing extended supervision scheme could be reformed. These suggestions are included where relevant as an alternative to the high-risk offender model.

A High-Risk Offender Order

3.2.12 We believe that a significant limitation of the continuing detention schemes operating in Queensland, New South Wales and Western Australia is a lack of management flexibility. Once a court has determined that a detention order rather than a supervision order should be made, there is no power to allow for periods of supervised release in the community without an application to a court for the order to be replaced with a supervision order. This means that offenders under detention orders cannot be managed flexibly—for example, to provide offenders who are making good progress with increasing levels of freedom, with the safety net of being able to recall them back into custody at any time if necessary. This is because once a supervision order is substituted for a detention order, there is no power to recall an offender to custody if he or she is demonstrating behaviour that falls short of offending but is nevertheless of concern. In circumstances where such behaviour constitutes a breach of conditions, formal breach proceedings would need to be initiated and a court would then need to decide whether the offender should be imprisoned for a period, and/or a detention order substituted for the existing supervision order.
3.2.13 Arguably, providing greater flexibility in the way that detention orders are managed may also provide a greater incentive to offenders to work towards their own rehabilitation, because by demonstrating progress, they may increase their level of freedom. Such an approach also maximises legislative consistency with the principle of the ‘least restrictive alternative’.
3.2.14 Therefore the Council believes that should continuing detention be introduced in Victoria, the legislation should provide for two forms of HRO order: a supervision order, under which an offender is managed in the community, and a detention and supervision order, which allows the offender to be detained or managed in the community, depending on the least restrictive alternative. A detention and supervision order would expressly allow for the possibility of the offender being made subject to other less restrictive forms of control during the period of the order.
3.2.15 Decisions about whether an offender should be in custody or under supervision under a detention and supervision HRO order, and the setting of other conditions, would be the responsibility of a new independent body, referred to as the High-Risk Offenders Board. Under a supervision HRO order, the Board would set conditions but would not have the power to detain the offender.

Recommendation 4: A New High-Risk Offender Scheme: an Integrated Approach

If a continuing detention scheme is introduced in Victoria the Council recommends that:

(1) Legislation be enacted to provide for an integrated system of post-sentence orders, described as a high-risk offender scheme;

(2) The high-risk offender scheme should be consistent with the following principles:

the legislation must not be designed to punish the offender, but rather to protect the community;
continuing detention should be a last resort, with a presumption in favour of the least restrictive alternative;
the scheme should be targeted primarily to offenders who are at high risk of committing serious sexual offences against either adults or children, and include offenders convicted of murder, manslaughter and attempted murder;
the state should provide the means by which an offender can meaningfully participate in rehabilitation and treatment;
the scheme should aim to provide incentives to offenders to address factors related to their risk, while recognising the purpose of community protection as paramount;
there should be independent oversight and coordination of agencies managing high-risk offenders and improved mechanisms to provide courts with the information they require;
the legislation should, as far as possible, be consistent with the Victorian Charter of Human Rights and Responsibilities and the Victims’ Charter; and
strong procedural safeguards should be built into the legislation;

(3) This high-risk offender legislation should replace the Serious Sex Offenders Monitoring Act 2005 (Vic);

(4) The legislation should incorporate all of the safeguards set out in this Report;

(5) A high-risk offender order should consist of either:

supervision, allowing the offender to be managed in the community; or
detention and supervision, allowing the offender to be detained in custody or managed in the community, as appropriate.

Transitional Issues

3.2.16 The introduction of an integrated scheme raises complex transitional issues which will require careful consideration. The Council recommends that a new high-risk offender scheme should provide the capacity to supervise eligible offenders post-sentence in the community or in detention, and that new integrated management arrangements also should be introduced. It is likely that there will be a group of offenders who are subject to ESOs imposed under the SSOMA at the time when the new arrangements come into force whose status will need to be clarified.
3.2.17 The legislation will need to incorporate a mechanism to preserve the validity of those ESO orders until such time as individual offenders have had their cases reviewed by the Supreme Court. This group of offenders should also come under the jurisdiction of the High-Risk Offenders Board and be subject to other relevant new arrangements in the meantime.
3.2.18 We note that the eligibility criteria for the high-risk offender scheme are in some respects narrower and in others broader than the applicable criteria under the SSOMA. For example, we have recommended a narrower list of triggering sexual offences, but offences against both adults and children will be captured. The possible implications of these changes, and others such as the lifting of the age eligibility to 21 years, will need to be considered and factored into any transitional provisions.

Recommendation 5: Transitional Issues

If a high-risk offender scheme is introduced in Victoria, the Council recommends that:

(2) The legislation should incorporate a mechanism to preserve the validity of existing extended supervision orders pending that Supreme Court review.

New Agencies Under the Scheme: An Overview

Introduction

3.2.19 In this Report the Council recommends the establishment of two new bodies:
- The High-Risk Offenders Board; and
- The Risk Management Monitor.
3.2.20 This section provides an overview of these proposals. Our reasons, and more detailed proposals, are presented later in this Report.

The High-Risk Offenders Board

3.2.21 In its Discussion Paper, the Council suggested the establishment of a High-Risk Offenders Panel that would have a broad range of responsibilities in relation to high-risk offenders, including:
- screening eligible offenders for post-sentence orders;
- accrediting risk assessors authorised to prepare assessment reports;
- setting standards and guidelines for risk assessments and risk management; and
- managing offenders under orders.
3.2.22 After consulting on this issue, the Council believes that the role proposed for the Panel should be confined to those functions that are directly related to offender management. We have further recommended that the Panel should be renamed the High-Risk Offenders Board (HRO Board).
3.2.23 Under the Council’s proposals, the HRO Board would have responsibility for all high-risk offenders subject to a HRO order (or an extended supervision order, under a reformed ESO scheme) from their earliest release date. We have recommended that the responsibilities of the Board should broadly include:
- making decisions about how high-risk offenders should be managed, including making parole decisions in the case of offenders eligible for parole;
- setting the conditions of orders, including, in the case of detention and supervision HRO orders, deciding whether offenders should be detained or supervised in the community; and
- reviewing the progress of high-risk offenders under the management of the Board, and ensuring that appropriate services, including treatment services, are delivered.
3.2.24 The proposed functions, operating procedures and membership of the Board are discussed further in Section 3.7 of this Report.

Screening

3.2.25 Under the current extended supervision scheme an internal committee—the Extended Supervision Order Review Board (ESORB)—is responsible for screening eligible offenders and making recommendations about whether an application for an extended supervision order should be made to the County Court or Supreme Court. For reasons outlined in Section 3.5 of this Report, we recommend that screening of offenders should continue to be carried out in this way.
3.2.26 If a new HRO scheme is introduced, the Council recommends that the existing Board should be reconstituted as the High-Risk Offender Screening Committee.

The Risk Management Monitor

3.2.27 There are currently no formal arrangements for accrediting people who are authorised to prepare risk assessment reports, or for setting standards and guidelines for the preparation of such reports.
3.2.28 In its discussion model the Council proposed that the HRO Panel should have these responsibilities. In this Report the Council recommends that these functions should be assigned to a new office established for this purpose: the office of the Risk Management Monitor. We propose that this office should be independent of both the High-Risk Offenders Board and Corrections Victoria.
3.2.29 Under the Council’s proposals, the functions of the Risk Management Monitor would include:
- contributing to policy and practice in the area of risk assessment and management;
- undertaking and commissioning research on risk assessment methods, and best-practice treatment interventions with high-risk sexual offenders;
- developing guidelines and standards with respect to risk assessment reports and risk management plans;
- accrediting those authorised to make risk assessments under the scheme;
- auditing and monitoring the adequacy of treatment interventions;
- providing advice to the High-Risk Offenders Board and the responsible Minister on risk management and treatment interventions, including possible improvements; and
- providing education and training to practitioners and service providers on risk assessment and risk management.
3.2.30 The broad role of the Monitor would be to ensure that best-practice approaches are used in the assessment and management of high-risk offenders subject to post-sentence orders. In line with the responsibilities of this office, we suggest that the person appointed to this role should be a senior clinician with experience in sex offender treatment and risk assessment.

The Relationship between Agencies

3.2.31 The relationship between the three primary agencies proposed under the scheme is illustrated in Figure 3. As illustrated, the Risk Management Monitor would be independent of the HRO Screening Committee and the HRO Board.

The Application Process: An Overview

3.2.32 Under the Council’s proposals, applications for HRO orders would be made prior to the offender’s earliest release date (usually before the end of an offender’s non-parole period) unless there was new adverse evidence available concerning an offender’s level of reoffending risk (in which case the application would need to be made before the offender’s sentence expired).
3.2.33 Applications for HRO orders would be made by the Director of Public Prosecutions to the Supreme Court. The offender would come under the management of the HRO Board at his or her earliest release date (except in cases where the sentencing court had not fixed a non-parole period, in which case the offender would come under the management of the Board as soon as an order was made).
3.2.34 The continued need for an order, and whether the offender should be managed under a HRO supervision order, or a HRO detention and supervision order would be reviewed prior the order coming into operation (at the end of his or her sentence). The HRO Board would continue to manage the offender during the period of the HRO order. Applications for new orders could be made prior to an existing order expiring. All orders would be of two years’ duration.
3.2.35 The screening and application process is illustrated in Figure 2.

Figure 2: High-Risk Offender Model—Flowchart

(1) Plead guilty/convicted of relevant offence

(2) Standard Sentence: Maximum (and non-parole period)

(3) Files of eligible prisoners referred to HROSC for review ASAP after legislation commences. Files of eligible prisoners reviewed periodically by HROSC.

(4) HROSC: HROSC reviews files of eligible offenders and assesses who poses a high-risk of reoffending (high-risk eligible offenders). Is eligible offender assessed as high-risk?

(5) If no, offender completes sentence and is released. If yes, Accredited practitioner directed to do Risk Assessment and Lead Authority directed to prepare Offender Management Report (OMR).

(6) Upon receipt of Risk Assessment and OMR, HROSC decides whether to recommend the DPP to make an application for a HROO for the offender. Does HROSC decide to refer offender to DPP?

(7) If no, offender completes sentence and is released. If yes, HROSC sends risk assessment and OMR (with recommendations) to DPP for decision.

(8) DPP: DPP determines whether application for HROO should be made (latest date for application is earliest release date unless new evidence). Does DPP decide to make application for HROO?

(9) If no, offender completes sentence and is released. If yes, Application for HROO to Supreme Court. Risk assessment and OMR accompany application.

(10) Supreme Court: Is the application granted?

(11) If no, offender completes sentence and is released. If yes, court orders that the offender be placed on a HROO for a set period of 2 years, which commences at the expiry of the offender’s sentence, the offender is managed by HROB from NPP or immediately (whichever is later), and HROO be reviewed prior to its commencement.

(12) HROB: Offender managed during parole period by HROB.

(13) Supreme Court: Before expiry of offender’s sentence, Supreme Court review of continuing need for the order (i.e. the test is met) and the nature of order (i.e. supervision only or detention & supervision). Does the Supreme Court affirm or revoke the order?

(14) If revoked, offender completes sentence and is released. If affirmed, a decision is made about the nature of order.

(15) If Supervision HRO order, offender managed after sentence by HROB under supervision in community. If Detention & Supervision HRO order, offender managed after sentence by HROB in detention or under supervision in community

Figure 3: Overview of Agencies

Agency	Members	Functions
HRO Screening Committee (formerly ESORB)	Executive Director, Office for Children (DHS), Deputy Commissioner, Community Correctional Services and Sex Offender Management, Victorian Government Solicitor, Director, Offender Management Services, Director, Victims Support Agency, Victoria Police? Other?	Screening of eligible offenders, arranging assessment reports by accredited assessors, providing advice to DPP about whether to make an application
Risk Management Monitor	–	Contributing to policy and practice in the area of risk assessment and management, undertaking and commissioning research on risk assessment methods, and best-practice treatment interventions with high-risk sexual offenders, developing guidelines and standards with respect to risk assessment reports and risk management plans, accrediting those authorised to make risk assessments under the scheme, providing advice to the High-Risk Offenders Board and responsible Minister on risk management and treatment interventions, including possible improvements, providing education and training to practitioners and service providers on risk assessment and risk management, auditing and monitoring the adequacy of treatment interventions.
High-Risk Offender Board	Chair (current or retired Supreme Court Judge), Deputy chair (current or retired Judge or Magistrate or experienced member of legal profession), Victims’ Representative or Advocate, Community Representative, Others?	Approval of risk management plans, setting conditions on HRO orders, overseeing management of offenders on HRO orders

3.3 Purpose of the Scheme and of Conditions

The Current Extended Supervision Scheme

3.3.1 The purposes of post-sentence supervision and detention schemes are generally the protection of the community and/or the rehabilitation of the offender. The legislative purpose is relevant to the management of those who fall under its provisions, the procedures to be employed, the information required by a decision-maker, the length of the order that can be imposed, and any conditions which might be attached.
3.3.2 Table 2 in Appendix 1 compares the purposes of the Australian extended supervision and continuing detention schemes. The overriding purpose of the Victorian ESO legislation is to

enhance the protection of the community by requiring offenders who have served custodial sentences for certain sexual offences and who are a serious danger to the community to be subject to ongoing supervision while in the community.^[363]

3.3.3 The purposes of the conditions of extended supervision orders are to ensure the adequate protection of the community by monitoring the offender, and to promote the rehabilitation and the care and treatment of the offender.^[364] In contrast, the Queensland and Western Australian schemes express these as alternatives: to provide continuing control, care or treatment. On its face this suggests that control of an offender can be provided in place of the offender’s treatment. In Attorney-General (Qld) v Francis,^[365] the court interpreted the Queensland legislation in this way, suggesting that an order for continuing detention could be made on the basis of any one of these alternatives in isolation.^[366]

Issues and Consultation

3.3.4 The legislative purposes of a post-sentence scheme are important, as they may affect the constitutionality of the scheme and its compliance with the Victorian Human Rights Charter, and will guide decisions about the structure of the scheme and the management of those people made subject to it. If rehabilitation is an integral purpose of the scheme, then the state has a responsibility to manage offenders under these orders in a way that provides opportunities for access to appropriate treatment during their time on the order. On the other hand, if community protection is viewed as the sole or principal purpose, then treatment becomes a subsidiary issue. This raises concerns about using post-sentence schemes to ‘warehouse’ offenders without addressing the underlying causes of their offending,^[367] and has the potential to infringe upon an offender’s human rights. There are also cost implications in adopting this approach.^[368]

3.3.5 In his dissenting view in Fardon, Justice Kirby was sceptical about the Queensland legislation’s stated aim of rehabilitation:

If the real objective of the Act were to facilitate rehabilitation of certain prisoners retained in prison under a ‘continuing detention order’, significant, genuine and detailed provisions would have appeared in the Act for care, treatment and rehabilitation. There are none. Instead, the detainee remains effectively a prisoner.^[369]

3.3.6 In our consultations it was suggested that if a new scheme is introduced, one of its purposes should be to protect the community by providing control, care and treatment of offenders to facilitate their rehabilitation and reintegration into society. It was argued that the long-term protection of society can best be achieved by creating a reciprocal obligation between the state (to provide care and treatment) and the offender (to participate in treatment and rehabilitation).^[370] Victoria Legal Aid emphasised the importance of a rehabilitative purpose:

If the only purpose of the scheme is community protection, then the reality is that offenders are unlikely to ever be released. That is because such orders only provide complete protection while the offender is detained. As it is difficult to make accurate predictions of risk, judges are likely to err on the side of caution and extend detention orders to ensure the safety of the community. ... Unless the community is prepared to detain all relevant offenders for life, the scheme will merely defer the risk to the community, rather than reduce it. The only way to reduce the risk is to rehabilitate offenders. Detention, by itself, does not rehabilitate offenders. There must also be appropriate treatment programs. Therefore, we believe that the purpose of the continued detention scheme must specifically include the provision of treatment to offenders to facilitate rehabilitation. To ensure that this is not just ‘lip service’, we suggest that offenders should have a statutorily guaranteed right to access appropriate treatment.^[371]

3.3.7 Our discussion model linked community protection to the offender’s rehabilitation in its purpose: ‘to enhance community protection by providing for the control and care and treatment of high-risk offenders to facilitate their rehabilitation’.

3.3.8 There was general support for linking community protection with rehabilitation. One person submitted that the ‘aims of safety and rehabilitation are compatible with and necessary to each other’. ^[372] The South Eastern Centre Against Sexual Assault submitted that the primary purpose of a scheme should be rehabilitation and treatment and a secondary purpose community protection, as ‘if you achieve the first goal the second one will follow on’.^[373] The Office of the Child Safety Commissioner also supported the proposed purpose, emphasising that:

The key to protecting the community, and vulnerable children in particular, is addressing the risk management of the offender through rehabilitation involving treatment and support.^[374]

3.3.9 While there was support for linking rehabilitation with community protection, it was suggested that the purpose of the legislation should make it clear that the care and control of offenders does not necessarily facilitate their rehabilitation. It was thought that the purpose should make clear that the primary function of providing control and care of the offender is to enhance community protection:

Sex offender management legislation generally focuses on external control mechanisms rather than engaging the individual offender to change (a major flaw with the new Serious Sex Offenders Monitoring Act 2005 (Vic) as well). The SAC paper indicates that the purpose of continued detention includes the ‘care’ and ‘control’ of high-risk offenders to facilitate their rehabilitation. This is flawed reasoning ... such strategies alone do not reduce reoffending. The legislation should articulate that community protection is met by a balance of: (1) care and control for the community and (2) rehabilitation for the individual sex offender. More detail is required regarding strategies to engage individual offenders in behaviour change and incentives need to outweigh the threat of continued detention.^[375]

The Council’s View

3.3.10 The Council considers that the purpose clause of a new integrated post-sentence scheme should clearly set out the connection between community protection and the rehabilitation of offenders. While rehabilitation on its own may be insufficient to ensure community safety, community protection achieved solely through the ‘control’ or incapacitation of the offender is also problematic due to its short-term focus and punitive effect. Therefore the scheme should aim to protect the community in the short term through the control and care of the offender as well as protecting the community in the long term through the treatment, rehabilitation and reintegration of the offender, and orders should be required to meet all these purposes. This would also strengthen compliance with the Victorian Human Rights Charter.

Recommendation 6: Purpose

6—A Reformed Extended Supervision Scheme

6—B New High-Risk Offender Scheme

3.3.11 The purpose of conditions of orders should be the same as those of the legislation (to enhance community protection by providing for the care and control of high-risk offenders and by providing for their treatment and rehabilitation).

3.4 Scope of the Scheme: Eligible Offenders

Introduction

3.4.1 The Council endorses the view that the use of post-sentence orders should be limited to the ‘critical few’ offenders who are perceived as posing a serious and ongoing danger to the community and whose offences are likely to cause the most harm. Appropriately delineating the scope of such schemes—including what offences are covered and what the test and the standard of proof for that test should be—is clearly central to ensuring that the net is not cast too broadly.

The Current Extended Supervision Scheme

3.4.2 The Victorian ESO scheme currently applies to offenders serving a custodial sentence for a relevant offence at the time the application is made.^[376]

3.4.3 A ‘custodial sentence’ is defined as ‘an order made by the court sentencing an offender to be imprisoned or detained in a prison or police gaol in respect of an offence’.^[377] It includes hospital security orders.^[378] It does not include other forms of detention, such as Youth Justice Centre orders. Offenders can be sentenced to a Youth Justice Centre order up to the age of 21.

3.4.4 The offences covered by the ESO scheme are the same offences that trigger eligibility for registration under the Sex Offenders Registration Act 2004 (Vic) and include a wide range of contact and non-contact sexual offences against children, such as rape, indecent assault, the possession of child pornography, and loitering near schools. Although the scheme also covers other forms of sexual offences such as bestiality, sexual offences against adults are excluded from the scheme, as are non-sexual violent offences.^[379]

Issues and Consultation

Offences

3.4.5 The original rationale for selecting the group of offences that trigger eligibility for the ESO scheme was that they should be consistent with those that attract mandatory registration under the Sex Offenders Registration Act 2004 (Vic).^[380] However, given the very different consequences that flow from registration compared to a post-sentence order for supervision and/or detention, it could be argued that a deeper justification than legislative consistency is required.

3.4.6 In the Council’s discussion model, it was proposed to extend the current list of offences to include sexual offences committed against adults, and to exclude bestiality. Other options suggested were to exclude non-contact offences (i.e. offences that do not involve the offender having any physical contact with a victim, such as possession of child pornography) and to include homicides with a sexual element or motivation.

3.4.7 There was widespread support in submissions for the extension of the current scheme to sexual offences committed against adults.^[381] Some pointed to the lack of empirical basis for distinguishing between offenders who offend against children, and those who target adults.^[382] While some studies have found low overall rates of reconviction for another rape for released rapists (around 2.5%),^[383] other research has indicated that the rates of recorded sexual reoffending for this group are comparable to rates for child sex offenders, although this varies by type of offender and type of victim (e.g. incest vs extrafamilial).^[384]

3.4.8 In addition, some commentators point to a lack of evidence linking less serious forms of offending, such as non-contact sexual offences and bestiality, with the likelihood of offenders committing serious sexual offences.^[385] In its submission, the Office of Public Prosecutions suggested that eligible offences should be those designated ‘serious sexual offences’ in Schedule 1 of the Sentencing Act 1991 (Vic).^[386] Appendix 2 compares the offences included in the current Victorian ESO scheme to the sexual offences listed in Schedule 1. Offences in the schedule are those already categorised by the legislature as ‘serious’ and do not include non-contact offences.

3.4.9 While there was some support in submissions for non-contact offences to be excluded,^[387] others advocated their inclusion.^[388] It was suggested that the offence for which an offender is in gaol is not always a useful indicator as to the likely seriousness of future offences, and there is the possibility that offenders who initially commit less serious offences will progress in their offending behaviour.^[389] Others suggested that eligibility for an ESO should not be tied to the commission of a particular offence.^[390]

3.4.10 One consequence of limiting the triggering offences to the ‘serious sexual offences’ set out in Schedule 1 to the Sentencing Act 1991 (Vic) would be that Commonwealth sexual offences would no longer trigger eligibility. Such offences include very serious crimes, such as sexual penetration of a child outside Australia and other sexual conduct with a child outside Australia.^[391] While the Council sees no policy reason to distinguish between serious state and Commonwealth sexual offences, we suggest that there may be constitutional impediments to imposing a state post-sentence regime on offenders serving a sentence for a federal offence.

3.4.11 The Council’s terms of reference do not suggest that post-sentence detention necessarily should be limited to sex offenders. Arguably the range of offences under the existing ESO scheme, and schemes existing in other Australian jurisdictions, should at least guide the consideration of which offences to include in any new post-sentence scheme.

3.4.12 The targeting of post-sentence schemes to sex offenders in other Australian jurisdictions suggests that there are particular concerns about the risks of reoffending and the likely harm caused by these types of offenders. This was supported in our consultations.^[392] However, equally there were concerns that serious non-sexual violent offenders should be captured by the scheme.^[393] While the likelihood of serious violent offenders committing further serious offences might be low,^[394] the gravity of the harm risked, it was argued, justified such offenders being eligible for post-sentence orders. Some considered such an extension unnecessary, because of the existence of indefinite sentences for murder, manslaughter and other serious violent offences, as well as life sentences for murder.^[395]

3.4.13 A number of submissions supported the proposition that at the very least, homicides with a sexual element, or which involved the commission of a sexual offence, should be included as triggering offences in any post-sentence scheme.^[396] While the offences covered by other Australian continuing detention schemes are primarily confined to sexual offences, some US jurisdictions apply their civil commitment laws to offenders convicted of murder, manslaughter and other serious violent offences where the particular offence is ‘sexually motivated’. ‘Sexually motivated’ is defined to mean that the act or acts constituting the offence were committed in whole, or in substantial part, for the purpose of sexual gratification.^[397]

3.4.14 The original rationale for including this proposal in the discussion model was that if the predicate offences are limited to sexual offences, some high-risk sex offenders may not be eligible. This recognised that in some cases although there may have existed evidence of sexual offences having been committed against a murder victim, a decision may have been taken to prosecute the offender only for the crime of murder. It is often easier to secure a conviction in relation to the murder than in relation to possible sexual offences—particularly as the complainant is not available to give evidence.

3.4.15 If the homicide offences triggering the scheme were limited to those that involved the commission of a sexual offence or offences, the same problems of proving the sexual offences may arise. The problems may in fact be compounded by the passage of time. In the absence of a conviction for a sexual offence, the court may not only have to determine whether the offender presents an unacceptable risk of committing further sexual offences, but also whether the original offence met the criteria for eligibility. Applying a looser criterion, such as that the offences were ‘sexually motivated’, may provide courts with greater latitude, but the criterion would need to be appropriately defined. Arguably, it would be necessary to establish beyond reasonable doubt that the offence was sexually motivated in order to be consistent with the treatment of other offenders who have committed offences that trigger eligibility for post-sentence orders. This issue is dealt with in the context of the offence of loitering without reasonable excuse in, or near, a school, kindergarten or childcare centre or other public place regularly frequented by children, by including offenders convicted of murder ‘where there are reasonable grounds to believe that a sexual offence was also committed on the victim’.^[398]

3.4.16 Another solution, if the scheme was confined to sexual offenders only, may be to include the offences of murder and manslaughter as eligible offences in their own right. It is unlikely that most offenders who have been convicted of murder or manslaughter would be found to be appropriate candidates for this scheme. Murder carries a maximum penalty of life imprisonment, while both murder and manslaughter are included in the offences that may attract an indefinite sentence.^[399] In cases where the seriousness of the offence raises concerns about possible future violent offending, the court has the option to impose either a life, or an indefinite sentence.^[400] Given the low recidivism rate for homicide,^[401] it also is likely that even in the case of offenders sentenced to a finite sentence, the majority would be assessed as posing a low risk of committing a future serious sexual offence or homicide, and would therefore be eliminated at the screening stage. On the other hand, including homicide offences in the scheme could unnecessarily widen the pool of eligible offenders.

Mentally Ill Offenders

3.4.17 The majority of sexual offenders do not have a mental illness.^[402] While some studies have found a high incidence of personality disorders in sex offenders,^[403] these disorders alone are insufficient to constitute a ‘mental illness’.

3.4.18 In Victoria, the court can impose a restricted involuntary treatment order (RITO) or a hospital security order on an offender where the court is satisfied that:
- the offender is mentally ill and requires treatment for that illness;
- the treatment can be obtained by admission to and detention in an approved mental health service; and

• admission is required for the offender’s health and safety or for the protection of members of the public.^[404]

3.4.19 Restricted involuntary treatment orders are imposed in place of a sentence and are not available for serious offences^[405] such as murder, rape and sexual penetration of a child under 16. These orders can only be imposed for a period of up to two years;^[406] however, after this time, the offender may be made subject to involuntary detention under the arrangements provided under the Mental Health Act 1986 (Vic). In contrast, there is no restriction on the offences for which a hospital security order can be imposed. A court can only place an offender on such an order in cases where it would have imposed a term of imprisonment, if not for the offender’s mental illness.^[407] The order must be for a fixed term and the court must also set a non-parole period.^[408]

3.4.20 An extended supervision order may be made in relation to an offender who has been placed on a hospital security order,^[409] but not an offender who has been placed on a restricted involuntary treatment order. This is consistent with the premise that restricted involuntary orders are not intended to be punishment, but rather are intended to divert mentally ill offenders from the criminal justice system to the mental health system.^[410] As for extended supervision orders, restricted involuntary treatment orders may operate as a non-punitive means of enhancing community safety by treating offenders who are mentally ill.

Intellectually Disabled Offenders and Offenders with a Cognitive Impairment

3.4.21 At present, offenders with an intellectual disability are not excluded from the extended supervision scheme. Corrections Victoria has advised that two of the offenders made subject to an ESO have a registered intellectual disability.^[411] One offender on an ESO has an acquired brain injury (ABI).^[412]

3.4.22 It could be argued that intellectually disabled offenders, and possibly other offenders with low-level mental functioning, should be excluded from post-sentence orders because their particular needs may not be able to be addressed under management procedures developed in relation to the general sex offender population. For example, a criminal justice approach may not address these offenders’ potential difficulties with adhering to conditions and strategies to avoid recidivism. The Adult Parole Board also has made specific comment on the lack of programs available for sex offenders with an intellectual disability in its two most recent annual reports,^[413] and suggested: ‘The protection of the community demands that such programs be implemented as soon as possible.’^[414]

3.4.23 The Secretary to the Department of Human Services has the power to admit a person with an intellectual disability on an ESO to a residential treatment facility for compulsory treatment. A number of criteria must first be satisfied before the offender can be admitted, including a serious risk of violence to another person and the consideration of all less restrictive options.^[415] A person can only be admitted to a short-term residential treatment facility for a maximum period of five years,^[416] although if a new extended supervision order is made, the offender can be readmitted to a short-term treatment facility.^[417] Because currently ESOs can be made for up to 15 years, if an intellectually disabled offender is placed on an ESO for more than five years, alternative arrangements would need to be made for at least part of the order. Under the recommendations in this Report, the maximum length of post-sentence orders would be two years. This would allow for an offender’s detention in a short-term treatment facility for as long as he or she is subject to an order, provided the other criteria for admission are met.

3.4.24 New arrangements under the Disability Act 2006 (Vic) also allow for the civil detention of intellectually disabled people under a supervised treatment order (STO) in certain circumstances.^[418]

3.4.25 During our consultations, a suggestion was made that it may be more appropriate for offenders with an intellectual disability to be dealt with under the provisions in the Disability Act 2006 (Vic) than under interventions which are part of the criminal justice system, because of the service delivery focus of these provisions.^[419] However, the STO was developed in order to address the needs of a different type of client who is already receiving residential services— generally living in supported accommodation specifically designated for people with disabilities. In supported accommodation, a number of people with disabilities usually live together in the one residence. As these people may be particularly vulnerable, it may not be appropriate to house an offender who is believed to be at risk of reoffending in such a residence.^[420]

Young Offenders

3.4.26 Under the current ESO legislation, the definition of ‘eligible offender’ excludes any offender who is sentenced to detention in a Youth Justice Centre. If the goal of the legislation is community protection this may be an artificial distinction, given that some young offenders may present as serious a risk as adult offenders on their release from custody.^[421]

3.4.27 On the other hand, many believe young offenders should be treated differently from adult offenders. The Male Adolescent Program for Positive Sexuality submitted that ‘adolescents who commit sexual offences are developmentally and criminogenically different from adult offenders’.^[422] The Office of the Child Safety Commissioner and others submitted that it would be more appropriate for any proposed scheme of post-detention supervision and detention to be structured in a way that supports the current ‘dual-track’ system separating young and adult offenders, recognising the different circumstances of these two distinct groups.^[423] This would ensure that any new scheme was consistent with the general proposition that ‘young offenders should, as far as possible, be rehabilitated and reintegrated into the community as quickly as possible’.^[424]

The Council’s View

Offences

3.4.28 The eligibility of an offender for post-sentence detention or supervision involves two aspects: the predicate offences, which trigger eligibility for the scheme and the future offences that an offender must be found at risk of committing. Because of the problems inherent in assessing risk, we believe that post-sentence supervision and detention can only ever be justified in the most exceptional of cases where the level of harm that is sought to be averted is grave. For this reason, we consider that the future offences that the offender must be at risk of committing should be limited to serious sexual offences, murder, manslaughter and attempted murder.
3.4.29 After considering a number of possible approaches, we have come to the view that the ‘serious sexual offences’ in Schedule 1 of the Sentencing Act 1991 (Vic) are at the appropriate level of seriousness to trigger eligibility for a post-sentence scheme. In our view adopting this list of offences strikes the right balance between capturing the most serious sexual offences that cause the greatest concern and limiting the scope of the scheme so that the net is not cast too widely. We note that ‘serious sexual offences’ in Schedule 1 of the Sentencing Act 2001 (Vic) include offences committed against adults as well as children, and exclude non-contact offences.
3.4.30 The Council further recommends that the offences of murder, manslaughter and attempted murder should be included in the scheme. This will mean that offenders convicted of these offences who are sentenced to fixed term sentences and who are assessed as presenting a serious and ongoing risk of committing a future serious sexual offence or homicide, will be eligible for post-sentence orders. While this is a departure from the approach taken in other states, we believe that the gravity of the harm caused by homicides, and the lasting and devastating effects on victims’ families, justifies the inclusion of these offences. We further believe that to exclude these serious violent offenders from the scope of the scheme would be contrary to the intention of the legislation—to protect the community from unacceptable risks of serious harm (however rare the circumstances in which the use of these measures may be necessary).
3.4.31 In recommending this approach, we envisage that the numbers of offenders convicted of murder, manslaughter and attempted murder who are ultimately made subject to post-sentence orders will be very small. The recorded rates of reoffending by those convicted of homicide with another homicide or a sexual offence are extremely low. In the usual course, those few offenders convicted of murder, manslaughter or attempted murder who are assessed as presenting an ongoing danger are likely to receive a life sentence or indefinite sentence at the time of sentencing. However, we accept concerns expressed by some that there may be a case where the nature of the risk may only become apparent during the course of an offender’s sentence.

Mentally Ill Offenders

3.4.32 The Council recommends that, consistent with the current ESO scheme, offenders who are on restricted involuntary treatment orders should be excluded from any post-sentence supervision or detention, while offenders on hospital security orders should continue to be eligible for supervision and should also be eligible for post-sentence detention.

Intellectually Disabled Offenders and Offenders with a Cognitive Impairment

3.4.33 It seems to us that the current infrastructure that exists under the criminal justice system and the provisions of the Disability Act 2006 (Vic) does not provide an adequate solution for dealing with intellectually disabled sex offenders who are at a high risk of committing further serious crimes. Similar issues arise in relation to offenders who have low-level intellectual functioning, due for example to an acquired brain injury (ABI).
3.4.34 At the same time, the Council has concerns about intellectually disabled offenders and offenders with low-level intellectual functioning being subject to any post-sentence scheme because of the particular vulnerabilities of this group. We therefore believe that consideration should be given to developing a new order, or different arrangements for administering existing orders, to cater specifically to the needs of these offenders. If these offenders are to continue to be eligible for the same post-sentence orders that apply to the general offending population (extended supervision orders or high-risk offender orders), in our view it is imperative that special arrangements are put into place to ensure that the risk these offenders present is dealt with in a manner that takes into consideration their particular circumstances. In this context we note the comments of the Adult Parole Board identifying a need for sex offenders with an intellectual disability to have access to appropriate programs to reduce their levels of risk.

3.4.35 Finally, we note that the power to admit offenders with an intellectual disability on extended supervision orders to a residential treatment facility could be viewed by some as a form of continuing detention. However, we acknowledge that the power to admit a person to a residential treatment facility can only be exercised under the Disability Act 2006 (Vic) by the Secretary to the Department of Human Services if all less restrictive options have been tried or considered and found not to be suitable.^[425] Because the focus of these orders is on delivering treatment and other services, the use of this power could be viewed as preferable to a continuing detention scheme, which could allow for the detention of an offender with an intellectual disability in a prison environment.

Young Offenders

3.4.36 The Council believes that it is appropriate that any post-sentence scheme should be structured in a way congruent with the current ‘dual-track’ system, which separates adolescent and adult offenders and recognises the different circumstances of these two distinct groups. In line with this, we recommend that as is the case under the current ESO scheme, young offenders serving a sentence in a Youth Justice Centre should not be eligible for a post-sentence order under either a reformed ESO scheme or a new post-sentence scheme. In the interest of consistency with the current provisions relating to indefinite sentences, and the accepted definition of a ‘young offender’ under the Sentencing Act 1991 (Vic), we further recommend that any offender under the age of 21 years at the time an application is made should be specifically excluded from the scope of these schemes.

Other Eligibility Criteria

3.4.37 The current ESO scheme applies to offenders who are serving a ‘custodial sentence’.^[426] Because we recommend that new orders should be able to be made while an offender is on an existing post-sentence order, it may be necessary to clarify that offenders under existing post-sentence orders are also eligible for an order.

Recommendation 7: Scope of the Scheme: Eligible Offenders

7—A Reformed Extended Supervision Scheme

(2) Relevant offences should be defined as:

‘serious sexual offences’ as defined in Schedule 1 of the Sentencing Act 1991 (Vic) (see further Appendix 2, column 2); and
murder, manslaughter and attempted murder.

7—B New High-Risk Offender Scheme

(2) Relevant offences should be defined as:

‘serious sexual offences’ as defined in Schedule 1 of the Sentencing Act 1991 (Vic) (see further Appendix 2, column 2); and
murder, manslaughter and attempted murder.

3.5 Screening of Eligible Offenders

Current Approaches

The Extended Supervision Scheme

3.5.1 The current process for screening eligible offenders under the Serious Sex Offenders Monitoring Act 2005 (Vic), as established by Corrections Victoria, is illustrated in Figure 4. The Sex Offender Program (SOP) keeps a database of all eligible offenders. Prior to their release date all offenders who are assessed as presenting a high risk of reoffending have a clinical ESO assessment undertaken by SOP staff or external providers. This must be endorsed by the Manager of the SOP (or an external clinical psychologist in cases where the ESO assessment report has been prepared by the Manager of the SOP). ESO reports are sent to the Deputy Commissioner, Community Correctional Services and Sex Offender Management via the General Manager of the Sex Offender Management Unit (SOMU). Once Corrections Victoria has received the ESO report, a briefing is prepared for the Secretary to the Department of Justice that includes a recommendation as to whether the Secretary should make an application to the court for an ESO in relation to the offender.^[427]

3.5.2 The Secretary to the Department of Justice has now also established an Extended Supervision Order Review Board (ESORB) to assist in providing advice on the administration and outcome of assessments undertaken or arranged by Corrections Victoria. This Board is responsible for making recommendations to the Secretary concerning whether an application for an ESO should be made. Ultimately, however, the decision is that of the Secretary.^[428] The current membership of ESORB is:

Deputy Commissioner, Community Correctional Services and Sex Offender Management;
Director, Victims Support Agency;
Victorian Government Solicitor;
Executive Director, Office for Children (Department of Human Services), represented by Director, Juvenile Justice and Youth Services; and

• Director, Offender Management Services.^[429]

Figure 4: Process in Victoria for Assessing Eligible Offenders

(1) Sex Offender Program (SOP)

Keeps a database of all eligible offenders
Prior to their release date all eligible offenders who are assessed by SOP as a high risk of reoffending have a clinical ESO assessment
Clinical ESO assessment undertaken by departmentally approved assessor (Manager SOP, Deputy Manager SOP, or external provider)
ESO assessment subjected to peer review and must be endorsed by 2 clinicians who are also departmentally approved assessors
Extended Supervision Order Assessment Report completed

(2) Extended Supervision Order Review Board (ESORB): Deputy Commissioner, Community Correctional Services and Sex Offender Management; Director, Victims’ Support Agency; Victorian Government Solicitor; Executive Director, Office for Children (Department of Human Services) represented by Director, Juvenile Justice and Youth Services; Director, Offender Management Services

Advice and Recommendations about whether an application should be made
Briefing with recommendation as to whether an application for an Extended Supervision Order should be made

(3) Secretary to the Department of Justice

Makes decision about whether an application should be made
Makes applications for extended supervision orders

New South Wales, Queensland and Western Australia

3.5.3 All three jurisdictions with continuing schemes in Australia have introduced similar screening processes, including the establishment of interdepartmental committees, to identify which offenders should be subject to an application for continuing detention or extended supervision. These processes were detailed in the Council’s Discussion Paper.
3.5.4 There are some differences in the membership of the Victorian ESORB compared to the screening bodies in other jurisdictions. For example, both Queensland and Western Australia have police representation on their screening committees.
3.5.5 New South Wales also has established a separate body—the Serious Offender Review Council (SORC)—to manage serious offenders while under sentence. We discuss the responsibilities and membership of SORC at [3.7.5].

The Discussion Model

3.5.6 In our discussion model, it was proposed that responsibility for screening offenders and making recommendations would be assigned to the HRO Panel.^[430] It was suggested that this would ensure consistency of management and the accumulation of expertise in dealing with high-risk offenders, while allowing for appropriate oversight of the management of these offenders and the agencies managing them.^[431]

Issues and Consultation

3.5.7 Risk assessment reports provide an important information source for those screening eligible offenders, to identify those who the screening body considers should be subject to post-sentence orders. The screening process adopted, and the timing of this screening, influences the timing of these assessments. There is a general assumption that assessments are best done towards the end of an offender’s sentence to take into account his or her progress in treatment, and his or her behaviour in the community while on parole (if parole has been granted).

3.5.8 Forensicare, in its submission on the Issues Paper, questioned the logic of this approach, arguing that assessments of sex offenders are best done prior to sentencing. It suggested that to enable this to happen, ‘an independent pre-sentence assessment service [should] be established to provide sentencing judges with the clinical information necessary to enable them to make better sentencing decisions’.^[432] It submitted that the benefits of delaying assessments are overstated:

While logic might dictate that it is somehow easier (and more accurate) to assess one’s level of risk at the end of the sentence, this is simply not so. First the existing research shows clearly that the best predictors of future offending are static risk variables (such as deviant sexual preference and antisocial orientation). While some dynamic variables are useful for treatment targets, they pale in comparison to the predictive power of the static variables. Second, it is very difficult to quantify in any meaningful and accurate way how much an offender benefited from treatment and incarceration to reduce his level of risk. Some current research suggests that treating clinicians’ subjective appraisals of treatment progress may not accurately relate to ongoing offending risk.

As a result of these factors, from a risk assessment perspective, relatively little advantage is gained from assessing offenders’ risk levels at the end of their sentence (as is required by any post-sentence supervision or detention legislation) ...^[433]

3.5.9 In its later submission, Forensicare again recommended that a full pre-sentence assessment and report for sex offenders should be provided to courts at the point of sentencing. This, it was argued ‘would enable “baseline” data to be available on risk to assist in determining whether any application for continued detention or supervision is appropriate’, and would also ‘enable a better picture of changes in a person’s risk level over time’.^[434]

The Council’s View

3.5.10 The three Australian jurisdictions that have an established continuing detention scheme have put in place numerous administrative processes to facilitate the identification of eligible offenders and to ensure that the person responsible for making applications for detention or supervision is the person best equipped to make such decisions. Victoria has established similar administrative processes for screening cases eligible for extended supervision. If continuing detention is introduced in Victoria, an integrated system for identifying eligible offenders and briefing the body responsible for making applications will need to be established.^[435]

3.5.11 While we initially gave consideration to delegating this task to the High-Risk Offenders Board, we see no reason to change the current arrangements for screening, provided the decision of whether an application should be made is made by a person independent of Corrections Victoria and the responsible Minister, such as the Director of Public Prosecutions.
3.5.12 If the current ESO Review Board model is retained, we suggest the operating practices adopted ultimately should be a matter for Corrections Victoria. However, we suggest that consideration should be given to broadening the membership to include a Victoria Police representative.
3.5.13 We recommend that under either a reformed ESO scheme or a new post-sentence model all eligible offenders serving a standard fixed-term sentence of imprisonment should be reviewed on a regular basis by the screening body. We note that whatever screening practices and systems are adopted, it will be necessary for eligible offenders to be identified and assessed at an earlier stage than under the existing ESO scheme, as the presumption will be in favour of applications for post-sentence orders being made prior to the expiry of the non-parole period of the offender’s sentence.

3.5.14 The Council acknowledges that a possible concern with the model we advocate is that many offenders who will potentially be eligible for an order under the new scheme or a reformed ESO scheme may not have had an opportunity to have completed programs offered at the time they are assessed. Under Corrections Victoria’s current strategy, access to more intensive sex offender treatment modules only occurs close to an offender’s earliest release date.^[436] As the rationale for making an order at an earlier stage and bringing offenders under the management of the HRO Board is to decrease the offender’s risk of reoffending while he or she is still under sentence, thereby reducing the need for post-sentence detention or supervision, we do not see this as problematic. In this context we acknowledge views expressed in submissions that there is little benefit gained by deferring assessments to the end of an offender’s sentence, due to the significance of static risk factors in the prediction of future offending and the fact that subjective assessments of treatment progress may bear little relationship to an offender’s risk of reoffending.^[437] Such an approach is also more consistent with strong views expressed that the primary purpose of risk assessment should be to manage rather than to predict risk.^[438]

3.5.15 We further note that during consultations and in submissions, there was some support for a more rigorous assessment process to be instituted in Victoria for all sex offenders at the point of sentencing. While we have not made any specific recommendations in this regard, we see obvious benefits of such an approach in dealing with offenders sentenced for serious offences who may possibly be eligible for a post-sentence order. This information, if available, would provide a good basis for any screening body in determining whether the risk posed by an offender may justify the making of a post-sentence order, and in some cases may remove the need to arrange for the preparation of a separate assessment report for screening purposes. The issue of who should be authorised to carry out these assessments is explored in Section 3.6.

Recommendation 8: Screening of Offenders

8—A Reformed Extended Supervision Scheme

(1) Eligible offenders should be screened by means of administrative processes established by the Department of Justice for this purpose.

(2) The Extended Supervision Order Review Board should make recommendations to the Director of Public Prosecutions about who should be the subject of an application and the reasons for those recommendations.

(3) Membership of the Extended Supervision Order Review Board should be determined by the Department of Justice. Consideration should be given to expanding the membership of the Board to include a Victoria Police representative.

(4) The Adult Parole Board should be permitted to refer eligible offenders to the Extended Supervision Order Review Board for review.

8—B New High-Risk Offender Scheme

(1) Eligible offenders should be screened by means of administrative processes established by the Department of Justice for this purpose.

(2) The Extended Supervision Order Review Board should be renamed the High-Risk Offender Screening Committee.

(5) The Adult Parole Board should be permitted to refer eligible offenders to the High-Risk Offender Screening Committee for review.

3.6 Assessing Risk—Establishment of a Risk Management Monitor

Assessing Risk

The Current Extended Supervision Scheme

3.6.1 Under the current ESO scheme, all eligible offenders who are assessed as presenting a high risk of reoffending prior to their release dates have a clinical ESO assessment undertaken by SOP staff or external providers.^[439] This assessment must be endorsed by the Manager of the SOP (or an external clinical psychologist in cases where the ESO assessment report was prepared by the Manager of the SOP).^[440] An application for an extended supervision order must be accompanied by at least one assessment report.^[441] An offender is also permitted to obtain independent assessment reports^[442] and to have the hearing of the application adjourned to allow an independent report to be obtained.^[443]

3.6.2 An assessment report can only be made following a personal examination of the offender, but the expert may still make the assessment report even if the offender does not cooperate or does not cooperate fully.^[444] The Secretary to the Department of Justice may direct an offender to undergo a personal examination by a specified medical expert. An offender’s failure to comply with this direction—without reasonable excuse—is a criminal offence punishable by up to two years’ imprisonment.^[445] The court also has the power to order an offender to undergo a personal examination by a medical expert or any other person to enable that person to make a report or give evidence to the court.^[446]

3.6.3 In determining whether an offender is likely to commit a further offence if released into the community at the end of his or her sentence under the current scheme, a court is required to take into account any assessment report filed, any other report made, or any evidence given by a medical expert, and anything else that it considers appropriate. A ‘medical expert’ is defined in the Serious Sex Offenders Monitoring Act 2005 (Vic) as a psychologist, psychiatrist or other health service provider prescribed for the purposes of the making an assessment report under the Act.^[447]

3.6.4 An assessment report must set out the medical expert's assessment of the risk that the offender will commit another relevant offence if released in the community and not made subject to an extended supervision order, and his or her reasons for that assessment.^[448] The assessment report must also address a number of other issues, including:

whether or not the offender has a propensity to commit relevant offences in the future;
the pattern and progression of sexual offending behaviour and an indication of the nature of any likely future sexual offending behaviour;
efforts by the offender to address the causes of his or her sexual offending behaviour, including active participation in rehabilitation programs;
whether participation in rehabilitation programs has had a positive effect on the offender;
the relevant background of the offender;
factors that might increase or decrease any identified risks; and

• any other relevant matters.^[449]

3.6.5 A court may only begin to hear the application if satisfied that the offender has had a reasonable opportunity to obtain an independent assessment report.^[450] The offender is permitted to obtain more than one of these reports.^[451]

3.6.6 The Court must have regard to any assessment report filed by the Secretary or the offender and any other report or evidence from a medical expert. The Court may have regard to:
- whether the offender cooperated—or cooperated fully—in the preparation of any assessment report;
- if the offender did not cooperate—or did not cooperate fully—in the report preparation, his or her reasons for this;
- whether the report was made without a personal examination of the offender; and

• anything else that it considers appropriate.^[452]

Indefinite Sentences in Victoria

3.6.7 The factors a court must take into account in deciding whether an indefinite sentence should be imposed under the Sentencing Act 1991 (Vic) are:
- whether the nature of the offence is exceptional;
- relevant material from the transcripts of earlier court cases against the offender involving serious crimes;
- medical, psychiatric and other relevant reports;
- the risk of serious danger to members of the community if an indefinite sentence were not imposed; and

• the need to protect members of the community from that risk.^[453]

3.6.8 There is no requirement that an assessment report be prepared, nor does the legislation articulate what issues the medical, psychiatric or other reports must address under the Act. Because these provisions apply at sentencing, there is also greater emphasis placed on the nature of the offence for which the offender is being sentenced. The last two factors address issues of risk and community protection. Under the ESO scheme risk and community protection are articulated in the purpose of the scheme and in the test itself (which refers to the offender’s likelihood of reoffending). We explore possible changes to indefinite sentences in Section 3.23.

Queensland, Western Australia and New South Wales

3.6.9 Under the Queensland, Western Australia and New South Wales schemes, the Supreme Court may order the offender to undergo examinations by two psychiatrists.^[454] In New South Wales, if the court is satisfied at a preliminary hearing that the information provided would, if proved, justify the making of an extended supervision or continuing detention order, it must order two psychiatrists to examine the offender separately and to provide copies of their reports to the court.^[455] In introducing the legislation, the New South Wales Minister for Justice commented that the appointment of two court-appointed psychiatrists ‘is an important aspect of the scheme’ as ‘[i]t allows for a fair and independent medical opinion to be expressed’.^[456] In New South Wales a court must also take into account the results of any other assessments prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner.^[457]

3.6.10 Under both the Queensland and Western Australian schemes, an assessment report must include:
- the psychiatrist’s assessment of the level of risk that the offender will commit another serious sexual offence if released from custody, or if released from custody without a supervision order being made; and

• the reasons for the psychiatrist’s assessment.^[458]

3.6.11 The New South Wales legislation does not specify what information must be included in an assessment report prepared and provided to the court. However, in determining whether an order should be made, the court is required to take into account the results of any other assessments prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to:
- the likelihood of the offender committing a further serious sex offence;
- the willingness of the offender to participate in any such assessment; and

• the extent of the offender’s participation in any such assessment.^[459]

3.6.12 The court is also required to have regard to ‘the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious sex offence’.^[460]

3.6.13 The risk assessment must be prepared even if the offender does not cooperate or does not cooperate fully in the examination.^[461] To date all prisoners in Western Australia and Queensland have complied with court-ordered risk assessments.^[462] The content of risk assessment reports and the matters to which a court must have regard in Queensland, Western Australia and New South Wales are set out in the Discussion Paper at [6.144]–[6.149].

3.6.14 Under the Queensland scheme, the court must hear evidence called by the Attorney-General and by the offender (if the offender elects to give or call evidence).^[463] The Queensland Act provides that the ordinary rules of evidence apply to such evidence, subject to the power of the court to receive in evidence the following documents:

the offender’s antecedents and criminal history; and

• anything relevant to the issue contained in certified transcripts of, or any medical, psychiatric, psychological or other report tendered in, any proceeding against the offender for a serious sexual offence.^[464]

New Zealand

3.6.15 Under the New Zealand Parole Act 2002, which governs the making of ESOs, applications must be accompanied by a report prepared by either a psychiatrist or a psychologist.^[465] Reports are arranged by the Chief Executive Officer of the Department of Corrective Services.

3.6.16 Assessment reports must address:
- the nature of any likely future sexual offending by the offender, including the age and sex of likely victims;
- the offender's ability to control his or her sexual impulses;
- the offender's predilection and proclivity for sexual offending;
- the offender's acceptance of responsibility and remorse for past offending; and

• any other relevant factors.^[466]

Who Should Assess Risk?

3.6.17 In consultations, some questioned whether those entrusted to prepare assessment reports fully appreciate the limitations of assessing future risk, particularly if they only have limited experience and expertise in the area.^[467] The category of ‘other health provider’ referred to in the Serious Sex Offenders Monitoring Act 2005 (Vic) was viewed as being overly broad. In line with these concerns, one submission argued that ‘only psychiatrists and psychologists with particular expertise in the area of sexual offending and the prediction of risk should be permitted to undertake such assessments’.^[468]

3.6.18 Other concerns involved the potential conflict of roles where the same mental health professional who is treating an offender is responsible for preparing an assessment report concerning that offender’s risk, and ethical issues concerned with risk assessments based on disclosures made in the context of a therapeutic relationship. Potential negative impact on the treatment of offenders—who may be concerned about how information disclosed in the course of treatment might be used against them—was another issue identified.^[469] It was suggested that this could adversely affect treatment outcomes for all sex offenders, as such concerns were unlikely to be confined to those who ultimately were the subject of post-sentence orders.^[470]

3.6.19 To ameliorate this problem and maintain the professional integrity of the treatment process, some mental health professionals suggested that an independent assessment should be conducted by someone who has not been associated with the treatment process, or by an independent panel with expertise in sex offender risk assessment.^[471] Separating risk assessment from treatment, it was submitted, could also reduce the possibility of offenders being discouraged by the potential negative legal consequences of disclosing information about the extent of their offending behaviour to the treating clinician, and allow for a more objective assessment to be made of their risk of reoffending.^[472]

3.6.20 A contrary argument was that independent assessors may have only limited knowledge of the types of programs offered by Corrections Victoria, and would therefore be disadvantaged by not being part of ‘the feedback loop’ concerning the extent of behaviour disclosed by offenders in the course of treatment.^[473] Separating treatment from assessment, it was submitted, ‘risks creating parallel services that mitigate against a team approach to managing behaviour in the future’.^[474]

3.6.21 The small number of qualified practitioners in this area was also viewed as a potential barrier to separating risk assessment from treatment. To address these deficiencies, a suggestion was made at one of the community focus groups that the establishment of an HRO Panel could be used to spearhead an initiative to produce National Risk Assessment Guidelines and to establish an Australia-wide pool of accredited risk assessors on which all jurisdictions with post-sentence schemes could draw.^[475] This approach could widen the pool of available risk assessors and ensure that the same person who is delivering treatment to an offender is not also responsible for preparing the assessment report that may be used to support an application for a post-sentence order.

The Council’s View

Introduction

3.6.22 In the Council’s view, courts approaching the issue of an offender’s risk are highly likely to place substantial weight on views expressed by mental health practitioners, including those expressed in any assessment reports prepared. Given the complexity of the task of assessing individual risk, we are concerned about potential misinterpretations of these views and risk assessments. We believe that this, together with the serious consequences that may follow a finding that an offender presents a serious risk, justifies a cautious approach to who is permitted to prepare these assessments, and the form in which this information is ultimately presented to the court.
3.6.23 The Council shares concerns that the criteria under the Act for those who are permitted to assess risk are overly broad. While we acknowledge that the pool of people with this expertise in Victoria is limited, it seems to us that at the very least, those who are entrusted to prepare assessment reports that may result in the post-sentence supervision or detention of an offender should have some demonstrated expertise in the area of sex offending or serious violent offending and in assessing risk. We are also sympathetic to concerns about the potential for conflict of roles, and negative effects on treatment, should those involved in the treatment of an offender ultimately be responsible for assessing their risk for the purpose of supporting an application for a post-sentence order.
3.6.24 In the Council’s discussion model we aimed to address some of these issues by suggesting that assessment reports should be court-ordered and either carried out by a dedicated assessment body (such as CPAV in the MACNI model) or by practitioners accredited by the proposed High-Risk Offenders Panel, which might also set standards and guidelines for risk assessments.
3.6.25 After consulting on this issue, we believe that risk assessments are best undertaken prior to the application being made (as is the case under the current ESO scheme). One of the benefits of this approach is that this information will be available to inform the decision as to whether an application for a order should be made. It also removes the need for a preliminary court hearing to make orders allowing for the preparation of assessments. Under the model proposed in this Report, the screening body (whether this is the existing ESO Review Board, or another body established for this purpose) would be responsible for arranging for assessment reports. The DPP will also be able to request separate reports if necessary, and the offender would retain the right to seek an independent assessment as well.

Establishment of a Risk Management Monitor

3.6.26 We continue to believe that a system of accreditation for risk assessors should be introduced, to provide more detailed guidance on how assessments are to be conducted, and the form of these reports. However, we no longer think it appropriate to give this responsibility to the body that will also have responsibility for overseeing the management of offenders.
3.6.27 We considered three alternative options. The first was the establishment of a separate Risk Management Authority in Victoria, similar to that which exists in Scotland. This approach would help to ensure high-quality reports and a rigorous risk assessment process, as well as building expertise in Victoria. However, we were concerned that the establishment of such a new body would require a significant ongoing commitment of funding that may not seem warranted if a post-sentence scheme is limited, as we believe it should be, to the ‘critical few’. We were conscious, too, of concerns expressed by Forensicare that such an approach would not only be resource-intensive, but could also potentially limit the time senior clinicians may have available to perform risk assessments should these clinicians be involved in developing and delivering training.
3.6.28 The second alternative we considered was the establishment of an interdepartmental working party or committee that could assume some of these responsibilities, such as accreditation of risk assessors and developing risk assessment guidelines and standards. The membership of such a committee might include representatives from Corrections Victoria and the Department of Human Services, and could draw on the expertise of mental health practitioners in developing operating guidelines and procedures.
3.6.29 However, the development of standard practices and guidelines in this area is only one of our concerns. We are also mindful of the importance of ensuring that treatment programs are appropriate and consistent with best practice, and that the processes adopted for assessing and managing risk similarly take into account developments in the field. Finally, there is clearly a compelling need to expand the number of people who are qualified to carry out assessments.
3.6.30 Taking these issues into account, the Council believes that consideration should be given to establishing a new independent office: the Office of the Risk Management Monitor. We propose that this office would have a number of roles, primarily concerned with contributing to policy and practice in the area of risk assessment, risk management and treatment, including:
- undertaking and commissioning research on risk assessment methods, and best-practice treatment interventions with high-risk sexual and violent offenders;
- developing guidelines and standards with respect to risk assessment reports and risk management plans;
- accrediting those authorised to make risk assessments under the scheme;
- auditing and monitoring the adequacy of treatment interventions;
- providing advice to the High-Risk Offenders Board and the responsible Minister on risk management and treatment interventions, including possible improvements; and
- providing education and training to practitioners and service providers in risk assessment and risk management.

3.6.31 The Risk Management Monitor would operate alongside the Corrections Inspectorate, which has more general responsibilities in relation to monitoring and reporting on the operations, conduct and performance of correctional services.^[476]

3.6.32 The new proposed role would have some similarities to the Office of the Senior Practitioner under the Disability Act 2006 (Vic). The Senior Practitioner is a new role established following recommendations made by the Victorian Law Reform Commission,^[477] and has general responsibility for ensuring protection of the rights of people with disabilities who are subject to restrictive interventions and compulsory treatment.^[478] The Senior Practitioner is also responsible for developing appropriate standards and guidelines for the use of restrictive interventions and compulsory treatment, including the development of treatment plans.^[479] This office is funded by, but independent of, the Department of Human Services.

3.6.33 The Senior Practitioner has a number of special powers under the Act including the capacity to issue directions to service providers; to require information and reports; to visit and inspect any premises where disability services are being provided; to investigate, audit and monitor the use of restrictive interventions and compulsory treatment; and to inspect and make copies of, or take extracts from, any document relating to any person who is subject to any restrictive intervention or compulsory treatment.^[480]

3.6.34 The Risk Management Monitor might similarly be given powers to visit and inspect premises where treatment services are being delivered; investigate, audit and monitor services and treatment; see any person involved in the delivery of services to the offender; and request information from Corrections Victoria and others involved in the treatment of the offender.
3.6.35 It is envisaged that the person appointed to fulfil the functions of the Risk Management Monitor would be a senior clinician with experience in sex offender treatment and risk assessment. This is consistent with both the suggested functions of such an office, and the intended purpose of the scheme: to reduce the risk to the community posed by a small group of high-risk sexual and violent offenders, using therapeutic approaches.
3.6.36 We believe that the range of responsibilities suggested for this role will ensure that optimal use is made of the expertise of the person appointed to this role and that he or she is an independent person who has a whole-of-system perspective on the operation of the scheme. The Monitor will also perform an important function by providing advice to the HRO Board and Screening Board or Committee on issues associated with risk assessment and management.
3.6.37 While we have constructed the role of Risk Management Monitor with the administration of a continuing detention and supervision scheme in mind, we see no reason why the appointee could not take on a broader role in relation to the assessment and treatment of sex offenders more generally.

3.6.38 Directions and guidelines that could usefully be developed by this office might include, for example, guidelines on who is permitted to prepare an assessment report, how such assessments are to be conducted, and the form of assessment reports. Such guidelines might also set out the issues that should be addressed in the report, and suggest standard information on risk and other findings in the research literature that should be referred to.^[481] This office might also have responsibility for overseeing training, which over time might increase the pool of professionals appropriately qualified to conduct risk assessments in Victoria.

Recommendation 9: Risk Assessment and Accreditation

9—A Reformed Extended Supervision Scheme

(1) A system for accrediting people authorised to conduct assessments under the Serious Sex Offenders Monitoring Act 2005 (Vic) should be established.

(3) Section 7 of the Serious Sex Offenders Monitoring Act 2005 (Vic) should be amended to state that an assessment report can only be prepared by a person accredited for these purposes.

(5) The Director of Public Prosecutions should be permitted to request the Extended Supervision Order Review Board to arrange additional reports if required.

(8) Standards and guidelines should be developed for risk assessments conducted under the Serious Sex Offenders Monitoring Act 2005 (Vic). These standards and guidelines should include guidance on:

who is permitted to prepare an assessment report;
how information required for assessments is to be gathered;
the assessment process;
information to be included in the assessment report; and
the form in which assessment reports are to be produced.

9—B New High-Risk Offender Scheme

(1) A system for accrediting people authorised to conduct assessments under the new scheme should be established.

(4) The Director of Public Prosecutions should be permitted to request the screening body to arrange additional reports if required.

(7) Standards and guidelines should be developed for risk assessments conducted under the new scheme. These standards and guidelines should include guidance on:

who is permitted to prepare an assessment report;
how information for assessments is to be gathered;
the assessment process;
information to be included in the assessment report; and
the form in which assessment reports are to be produced.

Recommendation 10: Risk Management Monitor

(1) Consideration should be given to establishing a new independent office of the Risk Management Monitor.

(2) The person appointed to this office should be a senior clinician with experience in sex offender treatment and risk assessment.

(3) The functions of the Risk Management Monitor should include:

contributing to policy and practice in the area of risk assessment and management;
undertaking and commissioning research on risk assessment methods, and best-practice treatment interventions with high-risk sexual and violent offenders;
developing guidelines and standards with respect to risk assessment reports and risk management plans;
accrediting those authorised to make risk assessments under the scheme;
auditing and monitoring the adequacy of treatment interventions;
providing information and advice to the screening body, the High-Risk Offenders Board and the responsible Minister on risk assessment, treatment and management issues, including possible improvements; and
providing education and training for practitioners and service providers in risk assessment and risk management.

(4) The Risk Management Monitor should be given any special powers necessary to perform his or her functions effectively, such as the power:

to visit and inspect any part of the premises where treatment and other services are being provided to a person under the management of the High-Risk Offenders Board, other than a private residence;
to investigate, audit and monitor treatment interventions in relation to high-risk offenders;
to see any person involved in the delivery of services to offenders under the management of the High-Risk Offenders Board;
to inspect and make copies of, or take extracts from, any document relating to arrangements for the treatment and management of offenders under the High-Risk Offenders Board; and
to request information from Corrections Victoria and others involved in the treatment and management of the offender.

3.7 The Management of Offenders

Existing Approaches

Extended Supervision Order Scheme

3.7.1 Both the Adult Parole Board and the Secretary to the Department of Justice can issue instructions and directions to offenders subject to ESOs.^[482] In practice, this means that responsibility for offenders under ESOs is split between the Adult Parole Board and Corrections Victoria. The Adult Parole Board has no explicit power to override instructions or directions made by the Secretary; nor does the Secretary have any control over those issued by the Adult Parole Board. However, both the Parole Board and the Secretary have the power to vary an instruction or direction they have issued, or which has been issued by the other.^[483] Employees of the Department of Justice who have been provided to the Adult Parole Board by the Secretary are also subject to the directions of the Board.^[484]

3.7.2 Unlike other jurisdictions, such as the United Kingdom, there are no formal arrangements for coordinating agency responses to the management of offenders who have reached the end of their sentence. The day-to-day management of offenders subject to ESOs is the responsibility of Corrections Victoria. The Australian Community Support Association also has received funding from the Department of Justice to assist in locating appropriate accommodation for, and providing social supports to, offenders under orders.^[485]

Queensland

3.7.3 In Queensland, all sex offenders sentenced to more than 12 months’ imprisonment are assessed and an Offender Management Plan (OMP) is developed. The OMP sets out an intervention strategy to meet the offender’s needs, risk and responsivity and includes goals to assist the offender in finishing the plan prior to his or her earliest release date. The OMP is reviewed at least annually to assess the offender’s progress and determine new long-term or short-term goals if necessary.^[486]

3.7.4 After cases are referred to the Attorney-General to decide whether to apply for a continuing detention or extended supervision order, two draft Individual Management Plans (IMPs) are prepared: one for the offender’s management in custody (in case a continuing detention order is made) and one for the offender’s management in the community (in case a supervision order is made). IMPs detail what is expected of the offender (such as participation in treatment programs) and the responsibilities of corrective services personnel.^[487] The IMP and the Offender Management Plan are reviewed every three months by the Offender Progression and Review Committee to assess ‘compliance, effectiveness, progress and risk’.^[488]

Serious Offenders Review Council (NSW)

3.7.5 New South Wales has a Serious Offenders Review Council (SORC), which is an independent statutory authority established by the Crimes (Administration of Sentences) Act 1999 (NSW). The functions of the SORC include the provision of advice on the security classification, placement and case management of prisoners who are classified as ‘serious offenders’.^[489] The SORC also has a number of other advisory roles, including in relation to release decisions made by the Parole Authority^[490] and to applications made by prisoners to the Supreme Court to set a specified term and a non-parole period for existing life sentences.^[491] The membership of the SORC includes judicial members, officers of the Department of Corrective Services, and community representatives.

Risk Management Authority (Scotland)

3.7.6 As discussed at [2.3.40]–[2.3.42], Scotland established a Risk Management Authority (RMA) to oversee the management of offenders on orders for lifelong restriction through the accreditation and regulation of treatment providers. The RMA has responsibility for offenders on these orders both while they are in custody and once they have been released into the community under supervision, creating a more streamlined scheme for dealing with high-risk offenders.

3.7.7 Once an offender is made the subject of an order for lifelong restriction, a Risk Management Plan is developed for that offender by the Lead Authority^[492] (in consultation with relevant persons or agencies).^[493] The plan is intended to be an ‘inter-agency, collaborative’^[494] document, which assesses the risk in relation to that specific individual, the measures to be taken for the minimisation of risk, and how such measures are to be implemented.^[495] The plan must provide for supervision in the community and arrangements for recall of licence.^[496] Once the Lead Authority has drawn up the plan, it must be submitted to the Risk Management Authority for approval.^[497]

Multidisciplinary Team Approaches

3.7.8 Another approach to managing high-risk offenders and people with complex needs is the use of multidisciplinary teams involving a number of agencies who come together to deliver services. A local example is the Victorian Multiple and Complex Needs Initiative (MACNI). This initiative manages people with a cognitive impairment who are referred to the scheme by service providers, court support services or correctional services, or by self-referral to the Regional Coordinator.^[498] The coordinator is the initial point of contact for referrals and provides advice as to whether the person appears to meet the eligibility criteria. The person can then be referred to the Multiple and Complex Needs Panel (‘the Panel’), established under the Human Services (Complex Needs) Act 2003 (Vic).^[499] The Panel then considers whether the person meets the criteria set out in the Act. If deemed to be eligible, the person is then referred to Care Plan Assessments Victoria (CPAV) for assessment.^[500] The CPAV team currently includes people experienced in working in the disability sector, social workers, and a forensic psychologist. Once the person has been assessed, the CPAV makes a recommendation to the Panel about whether a care plan should be implemented. Draft care plans are prepared by the CPAV and can be adopted by the Panel, with or without modification.^[501] The care plan coordinator is required to provide reports to the Panel when requested and/or every six months.^[502]

3.7.9 The Minister for Health has reported a number of positive outcomes for those subject to care plans, including improved stability in accommodation arrangements, a decrease in accident and emergency department admissions, better identification of health care requirements, and improved cooperation and goodwill between service providers.^[503]

3.7.10 Other examples of this kind of approach to managing high-risk and high-needs offenders are the Multi-Agency Public Protection Panels operating across the United Kingdom (see further [2.3.34]–[2.3.39]), and the Risk Assessment Management [504]gram operating in Colorado.⁵⁰⁴

Issues

Coordination of Service Delivery

3.7.11 Under the existing ESO scheme, Corrections Victoria bears the primary responsibility for the day-to-day management of offenders under orders. One of the consequences of this is that it must deal with a host of issues, such as locating suitable accommodation and programs in the community, that overlap with the responsibilities of other agencies.

3.7.12 In Queensland the lack of coordinated service delivery was been the subject of judicial comment in the early years of the operation of this scheme. For example, in Attorney-General (Qld) v Francis, Justice McKenzie raised two specific problems in relation to the implementation of plans: first, there was no single person within the Department of Corrective Services in Queensland with overall responsibility for putting the plan into effect; and secondly, there was a lack of clarity about what action should be taken, and by whom.^[505] Justice MacKenzie observed that:

Where there is an administrative task of complexity, and one which may involve more than one discipline, there is plainly an advantage in having consultative mechanisms in place to ensure a coordinated effort.^[506]

Treatment Programs

3.7.13 A number of concerns were raised in submissions and during consultations about the general operation of sex offender treatment programs.^[507] Some questioned whether mandated sex offender treatment would lead to any real behavioural change,^[508] and expressed concerns about offenders participating in treatment programs to achieve parole eligibility, and failing to disclose a continuing interest in offending against children.^[509]

3.7.14 Many viewed the timing of the provision of sex offender programs as problematic. Several submissions supported the provision of more resources to ensure that all potentially high-risk offenders were assessed prior to sentencing or as early as possible thereafter, to ensure that appropriate treatment regimes were put in place as soon as possible during their sentences and continued once they were eligible for release to assist with reintegration into the community.^[510]

3.7.15 There was also support for the enabling legislation of a continuing detention scheme to provide for a specific management regime that would include the provision of treatment and would also place the onus on the correctional authorities to ensure that sufficient opportunities for treatment and rehabilitation are provided.^[511] A related concern was that continuing detention orders may deny ‘prisoners access to post-prison community-based release programs—thereby removing social supports that might improve their chance of reintegrating into the community’.^[512]

3.7.16 A number of possible improvements to the current management of high-risk offenders were suggested in submissions and in the course of our consultations.^[513] These included:

Independent pre-sentence assessments for all offenders convicted of serious sexual offences, to give the judge a better understanding of the issues and the person’s treatment needs.

• Early assessment in prison by a sex offender treatment team and early development and implementation of a individualised treatment plan, in line with principles of therapeutic jurisprudence. It was suggested that tailored plans to facilitate an offender’s rehabilitation and reintegration should be offered both during sentence and while a person is on a post-sentence order.^[514] A need was also identified for the introduction of clear processes and defined responsibilities for formulating and implementing these plans,^[515] and for a focus on treatment options, rehabilitation and support of offenders to reduce the risk of harm.

• The management of high-risk offenders under a service delivery model, such as the Risk Assessment Management Program in Colorado.^[516]

The Discussion Model

3.7.17 As a result of our consultation and research on approaches in other jurisdictions, the discussion model proposed the establishment of a High-Risk Offenders Panel. We suggested that the HROP would encourage shared responsibility across relevant service agencies and increase the level of interagency coordination. It was suggested that the functions of the Panel could include:
- coordinating the assessment of offenders, including the accreditation of those who are qualified to assess risk;
- screening eligible offenders serving a standard fixed-term sentence for a possible application by the DPP for a high-risk offender order;
- overseeing the management of high-risk offenders subject to an HRO order or indefinite sentence; and

• providing information to the courts and to the relevant Minister.^[517]

3.7.18 It was proposed that the High-Risk Offenders Panel would actively manage all offenders under post-sentence orders. The role of the Panel would include approving Offender Management Plans (OMPs) for all offenders subject to HRO orders. These would set out the obligations of Correction Victoria and other agencies, and the goals for and expectations of the offender with respect to rehabilitation. The benefits of this approach, it was argued, would be to encourage a multidisciplinary team approach to the management of high-risk offenders and ensure there were clear lines of responsibility for delivering services.

The Need for a Specialist High-Risk Offenders Management Body

Consultations and Submissions

3.7.19 There was some support for the establishment of an independent authority to oversee the operation of the new post-sentence scheme.^[518]

3.7.20 Victoria Police recommended against putting the HRO Panel on a statutory footing, but suggested that such a panel could be established ‘to inform and assist the Attorney-General and the Department of Justice in their functions under the scheme’.^[519]

3.7.21 The Mental Health Legal Centre expressed concern that a body such as the proposed HRO panel could be overly cautious in making decisions about release:

we are concerned that the panel of experts may be similarly overcautious [as the Mental Health Review Board] and risk assessments applied to these ‘high risk offenders’ are not balanced by independent assessments as there is a dearth of independent practitioners available.^[520]

3.7.22 One submission was against the establishment of a HRO Board or similar body on the basis that it would create ‘yet another administrative body which has significant resource implications’ and which ‘diverts dollars from service delivery’.^[521] Another concern was that the proposed membership of the Panel could result in representatives from different agencies ‘competing for sex offender treatment resources, creating a conflict of interest regarding “independence”’.^[522]

3.7.23 This submission favoured a model focused on service delivery, such as the Risk Assessment Management Program operating in Colorado or the Compulsory Drug Treatment Program operating in New South Wales. The sex offender re-entry courts discussed at [2.3.46]–[2.3.51] is another example of this type of model. The submission proposed that the ‘service delivery model could be developed by Corrections Victoria as the lead agency using a Memorandum of Understanding or cont[523]ts between agencies’.⁵²³ Local examples of similar partnership arrangements include the Family Violence Courts in Victoria. The submission argued that this model would have a number of advantages over the discussion model for the mana[524]ent of high-risk offenders.⁵²⁴

3.7.24 However, this type of model is predicated on the assumption that an order is made at the point of sentencing rather than post-sentence, and depending on the length of the order, could raise proportionality concerns (see further [2.3.59]–[2.3.60]). The use of the courts to ‘case manage’ offenders could also be seen as quite resource-intensive.
3.7.25 Another issue, should a HRO Board be established, is the potential overlap between its role and that of the Adult Parole Board while an offender is still under sentence. In its submission, the Supreme Court of Victoria cautioned:

Functions should not be imposed on the Adult Parole Board which are likely to detract from the Board’s core function of determining release on parole after the expiry of the non-parole period of a sentence.

The Parole Board should not be placed in a position of determining issues already considered by the Court on a HRO application. Equally the Court should not be placed in a position of making orders contradicting decisions of the Board.^[525]

3.7.26 Another submission raised similar concerns about the potential for an HRO Panel to undermine the role of the Adult Parole Board.^[526] The Supreme Court recommended that in light of these issues, ‘the structure of HRO applications and orders may need to encompass parole determinations to prevent such conflicts’.^[527]

The Council’s View

3.7.27 The Council recommends that a new body—the High-Risk Offenders Board (HRO Board)—should be established. We remain of the view that there is merit in establishing a new body with overall responsibility for managing high-risk offenders and monitoring offenders’ progress from the time an application for a high-risk offender order is granted. We consider the establishment of this body to be central to the successful functioning of the integrated supervision and detention scheme outlined in this Report, should such a scheme be introduced. It could also play a useful role in a reformed ESO scheme.
3.7.28 Establishment of a new body to manage high-risk offenders would ensure better continuity and consistency of management of these offenders, minimise risks of ‘double-handling’ of cases, and allow for the more active management of offenders both during and after sentence.
3.7.29 Such a framework may also ensure a higher level of support to Corrections Victoria in managing the complex range of issues that typically arise in dealing with this group of offenders. Under the model proposed, Corrections Victoria would retain principal responsibility for managing offenders, but the delivery of services would be shared among a number of agencies, and service delivery coordinated under the direction of the new HRO Board. Having a clear ‘chain of command’ with clearly defined responsibilities at each level also would increase accountability.
3.7.30 We recognise that some might consider that the Adult Parole Board could fulfil this role. Although we acknowledge the Board’s expertise and excellence in managing offenders on parole, we have serious concerns about the appropriateness of the Adult Parole Board carrying responsibilities for post-sentence management. In our view, the Adult Parole Board has a clearly defined and well-understood role in relation to offenders under sentence, and to extend this to encompass a post-sentence role risks detracting from the performance of its core functions. We further believe that this small group of offenders considered to present an ongoing and serious risk to the community would benefit from a specialist and more intensive model of management.
3.7.31 In our Discussion Paper we suggested that the HRO Panel should have a broad range of responsibilities, ranging from the assessment and screening of offenders to the management of offenders under orders. After consulting on this issue, the Council believes that the proposed HRO Board (previously the HRO Panel) should have a more clearly defined role and that some of the responsibilities we originally suggested should be delegated, to avoid overburdening the Board with functions not directly related to its management role.
3.7.32 Under our revised proposals, accreditation of risk assessors and standard-setting for risk assessments would be the responsibility of the Risk Management Monitor—a psychiatrist or psychologist with expertise in the area of risk. The screening of offenders would continue to be undertaken by an internal screening committee (the HRO Screening Committee, replacing the existing ESO Review Board).
3.7.33 The responsibilities of the HRO Board would therefore be confined to managing offenders both during parole eligibility and under an HRO order once an application for an HRO order was granted. Once an offender came under the management of the HRO Board, the Board would be responsible for deciding whether to grant parole and would set the conditions of parole. Upon the expiry of the offender’s sentence, the Board would set all conditions of HRO orders, and for offenders on detention and supervision orders, would decide whether the offender should be detained or supervised in the community. This represents a departure from the current ESO scheme, under which the court making an order, the Adult Parole Board, and the Secretary to the Department of Justice all have a role in setting conditions (see further [3.16.1]–[3.16.3]).
3.7.34 To avoid the problems identified by the Supreme Court and others concerning a potential overlap between the role of the HRO Board and the Adult Parole Board, we recommend that the HRO Board should have sole responsibility for managing offenders once an application for an order has been granted and the offender has served his or her non-parole period. We therefore recommend that the HRO Board should be given the same powers to manage the parole process for these offenders as the Adult Parole Board currently has under the Corrections Act 1986 (Vic).

3.7.35 As is the case with decisions made by the Adult Parole Board, we recommend that the decisions and recommendations of the HRO Board should not be subject to appeal.^[528] This will ensure that offenders are managed during the parole period in a way that is consistent with the management of those who come under the jurisdiction of the Adult Parole Board, and that there is sufficient flexibility to manage issues relating to risk. The implications of this are discussed further in the following section.

3.7.36 The continued need for an HRO order would be reviewed by the Supreme Court prior to the expiry of the offender’s sentence. At that time, the Lead Agency would be required to submit a draft Post-Sentence OMP to the Board, who would then direct any necessary alterations to be made. A copy of this report would be provided to the DPP, the offender and the court to inform the formal review process. The Supreme Court would determine whether the offender is to be managed on the HRO order under supervision in the community, or managed under a detention and supervision order.
3.7.37 Should the existing ESO scheme be retained and reformed, rather than a new integrated HRO scheme introduced, there are a number of options that might be considered in addition to, or in place of, the establishment of an HRO Board. For example, the role of the Board in coordinating the development of the OMP and overseeing the delivery of services under the OMP could be assigned to an interdepartmental committee.
3.7.38 Under both the integrated HRO scheme and a reformed ESO scheme, local teams could also be established, modeled on the Multi-Agency Public Protection Panels operating in the UK, to assist in the management of offenders under orders. The membership of these teams could include, for example, Correctional Services staff, representatives of Victoria Police, the Department of Human Services, and other agencies and individuals involved in providing support and services to offenders in regions where offenders are housed.

Recommendation 11: Establishment of a High-Risk Offenders Board

11—A Reformed Extended Supervision Scheme

the establishment of an interdepartmental committee to oversee and coordinate the development and delivery of services to offenders subject to extended supervision orders;
the establishment of local multidisciplinary offender management teams with representatives of Corrections Victoria, Victoria Police, the Department of Human Services, and other agencies and individuals involved in providing support and services to offenders in regions where offenders are housed.

11—B New High-Risk Offender Scheme

A High-Risk Offenders Board should be established. This Board should have responsibility for managing high-risk offenders subject to high-risk offender orders.

High-Risk Offenders Board—Procedures

Procedures of the Adult Parole Board and Similar Bodies

3.7.39 The Victorian Adult Parole Board currently manages offenders subject to ESOs. While the majority of Australian parole boards are subject to the rules of natural justice, the Victorian Adult Parole Board, together with those in Western Australia and the Northern Territory, are exempt from these requirements.^[529] In New Zealand, as in Victoria, the Parole Board manages offenders on ESOs. The Board’s proceedings are subject to the rules of natural justice.^[530]

3.7.40 The rules of natural justice, also referred to as ‘procedural fairness’, are principles that developed at common law to ensure that the decision-making processes adopted by the courts and administrators were fair.^[531] The rules of natural justice include:

the hearing rule, which requires a decision-maker to provide a person whose interests may be adversely affected by a decision the opportunity to present his or her case;
the bias rule, which requires the decision-maker to act impartially, and to appear to act impartially; and

• the ‘no evidence’ rule, which requires a decision to be based upon ‘logically probative evidence’.^[532]

3.7.41 There are no formal provisions allowing for decisions made by the Adult Parole Board to be appealed. However, under the common law, the Supreme Court has a power to review the procedures of the Board on certain grounds—such as, for example, where it is alleged the Board has exceeded its powers.^[533]

3.7.42 The Mental Health Review Board^[534] and the Forensic Leave Panel^[535] are two examples of administrative bodies that are called on to make decisions that affect the rights and liberty of people—in this case, people with a mental illness. The Board and the Panel, while not required to conduct proceedings in a formal manner, nor bound by evidentiary rules or practices,^[536] are bound by the rules of natural justice.^[537] Patients have a right to appear before the Board or Panel in person and may be represented at the hearing.^[538] The Mental Health Review Board may also appoint a person to represent the patient in the proceedings.^[539] Proceedings before both the Board and the Panel are closed to members of the public, but may be opened to the public if the Board or Panel is satisfied that it would be in the best interests of the patient or in the public interest.^[540]

3.7.43 In the case of the Mental Health Review Board, appeals against decisions of the Board may be made to the Victorian Civil and Administrative Appeals Tribunal by a person whose interests are affected.^[541] There is also a power to refer questions of law to the Supreme Court for determination.^[542]

Natural Justice and Disclosure of Information

3.7.44 The LIV opposed the introduction of continuing detention, but submitted that if a body such as the HRO Board were established, it should be subject to the rules of natural justice and the decisions of the Board should be appealable.^[543]

3.7.45 On the one hand, it could be considered appropriate to require the proposed High-Risk Offenders Board to be bound by the rules of natural justice, at least from the time of expiry of the offender’s sentence and the coming into force of the HRO order, given the exceptional nature of post-sentence orders. On the other hand, the involvement of legal representatives and procedural requirements in the conduct of hearings, including information relied on in making decisions, might be seen as an unnecessary fetter on the Board’s ability to respond flexibly to changes in an offender’s circumstances and to manage an offender’s risk safely. Applying the rules of natural justice to the administration of an order authorised by the Supreme Court could also be seen as unnecessary and as likely substantially to increase the costs involved in administering such orders.
3.7.46 Another issue is the disclosure of information provided to the High-Risk Offenders Board. In some cases the Board, in changing the conditions of the order or recalling an offender to detention, may be acting on information provided confidentially by the offender’s friends or family members, or others working with the offender who might be concerned about his or her behaviour. Should the Board be required to disclose this information or its source to the offender, it may decrease people’s willingness to provide information to the Board.
3.7.47 The Mental Health Act 1986 (Vic) and the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) both specifically address the issue of disclosure of sensitive patient information related to Mental Health Review Board and Forensic Leave Board proceedings. This legislation provides that on an application made by or on behalf of an authorised psychiatrist, or in the case of the Forensic Leave Panel, the Secretary to the Department of Human Services, the Board or Panel may order that the patient is not entitled personally to inspect or otherwise have access to documents, or a document or part of a document given to the Board or Panel in connection with the hearing, if satisfied that inspection or access by the patient would:
- cause serious harm to the patient’s health or the health or safety of another person; or
- involve the unreasonable disclosure of information relating to the personal affairs of any person; or

• breach a confidentiality provision imposed by a person who supplied information that is contained in the documents or document.^[544]

3.7.48 Should either Board make such an order, however, it may allow a person who is representing the patient before the Board to inspect and have access to these documents.^[545] Arguably, if the HRO Board is given similar powers, some of the above concerns may be addressed.

3.7.49 A related issue is whether the HRO Board should make specific provision for information not to be disclosed more generally. There are provisions in the Corrections Act 1986 (Vic) prohibiting the disclosure of confidential information, including 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, except to the extent necessary to perform official duties, powers or functions of that position.^[546] There are a number of specific exceptions to this, including giving evidence or producing a document to a court in the course of criminal proceedings or proceedings under the Act, where the person has the written authority of the Minister for Corrections to do so; disclosing information to people on the Victims Register for the purposes of making victim submissions; and providing information to the police for the purpose of enforcing an order, or where the security or good order of the prison or the safety or welfare of the prisoner is at risk.^[547] Disclosure of confidential information other than authorised is punishable by five penalty units (around $535).^[548]

3.7.50 The Mental Health Act 1986 (Vic) also has a specific secrecy provision that prohibits a person who is or has been a member of the Mental Health Review Board, or who is or has been present at any proceedings of the Board, to directly or indirectly, make a record of, or divulge or communicate to any person, any information that was acquired by the person in connection with being a Board member or being present at proceedings, or make use of the information for any purpose other than the performance of official duties or the exercise of a function or power.^[549] An exception is made in circumstances where the Board has authorised a person to publish or broadcast a report of its proceedings,^[550] as well as court proceedings, or where the production of information is authorised or required by legislation.^[551] A similar provision exists in relation to proceedings of the Forensic Leave Panel.^[552] A failure to comply with these requirements is subject to a penalty of 10 penalty units (approximately $1,070).^[553]

The Council’s View

3.7.51 The Council believes the HRO Board should operate under similar arrangements to those that currently govern the Adult Parole Board. This will ensure that offenders managed by the HRO Board while under sentence are managed in a manner consistent with that of offenders managed by the Adult Parole Board. Post-sentence, while an offender is on a HRO order, it will ensure that there is flexibility in the management of offenders by the HRO Board. This is particularly important given the importance of balancing the rights of offenders with the interests of community protection.
3.7.52 We acknowledge that there may be some concerns in relation to this position, particularly in a post-sentence context where the need to protect the rights of offenders is critical. However, we believe that the proposed High-Risk Offender scheme contains a range of other important and relevant safeguards. The fact that the Supreme Court makes the initial determination about the nature of an HRO order, and is responsible for making any subsequent HRO orders, demonstrates a strong commitment to the protection of offenders’ rights. Significantly, the Board cannot order an offender to be held in detention unless the Supreme Court specifically has authorised this through the making of a detention and supervision HRO order. Prescribing the types of conditions that the Board can impose on an offender in the legislation also may serve to protect against the Board setting conditions that are unnecessary and/or that may operate unfairly. If established, the Risk Management Monitor would also have a role in reviewing the operation of the scheme, and where there are concerns about offenders being treated unfairly, bring this to the attention of the Board and/or the responsible Minister.
3.7.53 While under our proposals there will be no formal right to procedural fairness, we consider it important that the Board operate, as far as possible, consistently with those principles. This is one of the reasons for recommending that the Chairperson should be a current or retired judge of the Supreme Court, and that the Deputy Chairperson should also be legally qualified. We discuss the membership of the Board below.
3.7.54 If, contrary to our recommendations, it is determined that decisions made by the High-Risk Offenders Board should be subject to appeal, we suggest that any appeals should be made to the Court of Appeal. This will avoid the possibility of a decision made by the Board, presided over by a judge or retired judge of the Supreme Court, being subject to review by a single judge of the same court.
3.7.55 Due to the sensitive nature of the information with which the Board is likely to deal, and the serious damage that could result from the disclosure of confidential information about an offender, including his or her accommodation arrangements, we recommend that similar provisions relating to the disclosure of confidential information to those which currently protect the procedures of the Adult Parole Board and other similar bodies should apply to Board proceedings. We discuss this issue further in Section 3.22 of this Report.

Recommendation 12: High-Risk Offenders Board—Procedures

(1) The High-Risk Offenders Board should be governed by the same arrangements that currently govern the operation of the Adult Parole Board, for example:

The Board should not be bound by the rules of natural justice;
There should be no provision for appeals on the merits of board decisions.

(2) The High-Risk Offenders Board should as far as possible operate consistently with the principles of natural justice.

High-Risk Offenders Board—Role and Powers

The Current Approach

3.7.56 As discussed above, both the Adult Parole Board and the Secretary to the Department of Justice have the power to issue instructions and directions to offenders subject to extended supervision orders. Both may issue any instructions or directions that they consider ‘necessary to ensure the effective and efficient implementation and administration of the conditions of the order’.^[554] The Adult Parole Board is required to report annually to the Minister on the number of offenders in respect of whom an extended supervision order was made, and the operation of the Serious Sex Offenders Monitoring Act 2005 (Vic) during the relevant period.^[555] The Minister may also require the Board to provide information on these matters on request,^[556] and to provide reports and recommendations concerning offenders who are serving a prison sentence or who are the subject of an extended supervision order, or an application for an ESO.^[557] See further [3.22.32].

3.7.57 Employees of the Department of Justice who are provided to the Adult Parole Board by the Secretary are also subject to the directions of the Board.^[558] When required by the Secretary to the Department of Justice, corrections officers also must report either to a court or to the Adult Parole Board about a person subject to an ESO.^[559]

3.7.58 The general functions and powers of the Adult Parole Board under the Corrections Act 1986 (Vic) include powers to:

• summon any person to attend a board hearing at a time and place specified, and to give evidence and produce any document;^[560]

• examine any person on oath summoned to attend a board hearing;^[561]

• give directions to community corrections officers in relation to a parole order or home detention order;^[562]

• give directions to employees of the Department of Justice who are provided by the Secretary to the Department of Justice in relation to an extended supervision order;^[563]

• order a prisoner to be released on parole;^[564]

• revoke a parole order before it comes into operation;^[565]

• vary the terms and conditions to which a parole order is subject;^[566] and

• cancel a prisoner’s parole.^[567]

3.7.59 While on parole, an offender must:
- not commit any further offences;
- notify a community corrections officer of any change of address or employment within 48 hours of the change;
- not leave the state of Victoria without the written permission of the Regional Manager;
- carry out the lawful instructions of community corrections officers;
- be under the supervision of a community corrections officer;
- report as and when directed by the community corrections officer; and

• make himself or herself available for interview by the community corrections officer at such time and place as directed by the community corrections officer.^[568]

3.7.60 Additional conditions that may be set include:
- that the offender report at least twice a week to the supervising community corrections officer;
- that the offender be employed or undertake an approved educational or training program, or personal development program;

• if not employed, or in an approved educational or training program, that he or she undertake unpaid community work as directed by the Regional Manager;^[569]

that the offender be assessed and treated for alcohol or drug addiction, or submit to medical, psychological or psychiatric assessment and treatment;
that he or she submit to testing for alcohol or drug use; and

• that the offender must reside as directed by the Board.^[570]

3.7.61 In its most recent annual report, the Parole Board noted that it carefully monitored the release of sex offenders granted parole.^[571] The Board observed:

It is commonplace for strict conditions relating to appropriate accommodation, curfews and other matters such as contact with victims, other offenders and young persons, to be placed upon the parole order of such offenders. It is not uncommon for restrictions to be placed upon such offenders in regards to geographical areas which they are forbidden to enter.^[572]

3.7.62 The Parole Board also has a broad range of powers in relation to offenders who are subject to an extended supervision order. The instructions and directions the Board may issue include instructions and directions as to:
- where the offender may live;
- times at which the offender must be at home;
- places or areas that the offender must not visit or may only visit at specified times;
- treatment or rehabilitation programs or activities that the offender must attend and participate in;
- the types of employment in which the offender must not engage;
- community activities in which the offender must not engage;
- people or classes of people with whom the offender must not have contact;
- forms of monitoring (including electronic monitoring) of the offender’s compliance with the extended supervision order to which he or she must submit; and

• personal examinations by a medical expert to provide a report to the Board to assist in determining the need for, or form of, any instruction or direction under the Act.^[573]

Issues

3.7.63 The OPP supported the suggested functions for the High-Risk Offenders Panel, as proposed in our Discussion Paper.^[574] The OPP further suggested the Panel (now the HRO Board) should have responsibility for overseeing or monitoring the assessment and treatment of offenders during sentence, including offenders undergoing an indefinite sentence, ‘to ensure that access to assessment, treatment and rehabilitation is available to prisoners from an early stage’.^[575]

3.7.64 South Eastern CASA suggested that a body such as the proposed Board might also have a role in providing input into the development of treatment programs and risk assessments, and might take on an overseeing or advisory role in this regard.^[576]

3.7.65 The Springvale Monash Legal Service Inc recommended that the Board should have a role in directly consulting with prisoners on their progress under sentence and orders ‘so as to better understand their concerns and frustrations with their treatment, and to understand their perspective on their own progress towards conciliation’.^[577] The Legal Service further submitted that consultations with those who had already served a period of post-sentence detention should take place, as such persons ‘will be able to offer an invaluable perspective on such schemes, and offer opinions on how to maximise their success while minimising potential harm to offenders’.^[578]

3.7.66 Both the OPP and the South Eastern Centre Against Sexual Assault supported requiring a body such as the HRO Board to produce annual reports.^[579]

The Council’s View

3.7.67 Under the Council’s recommended model, the role of the High-Risk Offenders Board would be to manage high-risk offenders from their earliest release date (usually the end of the non-parole period), and to oversee the development of an Offender Management Plan (OMP) and the delivery of services to the offender under that plan. It is envisaged that because this Board would only be responsible for the small number of offenders subject to post-sentence orders, it would be possible for the Board to intensively manage these offenders. The Board may also develop specialist knowledge and expertise about effective strategies to minimise the risks this small class of offenders may pose to the community.
3.7.68 While the offender is still under sentence, the Board would be responsible for making decisions about whether he or she should be released on parole, and setting the conditions with which an offender must comply while on parole (during sentence) and while on an HRO order (post-sentence). For offenders made subject to a detention and supervision HRO order by the Supreme Court, the Board would have power to determine whether the offender should be detained in custody, or supervised in the community.
3.7.69 Although under our proposals the Board would have the power to impose any conditions it believes necessary, in setting these conditions the Board would be required to keep in mind whether the conditions meet the purposes of the legislation: that is, to enhance community protection by providing for the care and control of high-risk offenders and by providing for their treatment and rehabilitation. Unlike the current extended supervision order scheme under which responsibility for setting conditions is split between the Adult Parole Board and the Secretary to the Department of Justice, the Council’s proposals would give the HRO Board sole responsibility for this task.
3.7.70 The primary day-to-day responsibility for managing offenders under sentence and on post-sentence orders would remain with Corrections Victoria, which would be designated as the ‘Lead Agency’ for the purposes of the scheme. Once an application for a post-sentence order was granted, Corrections, as the Lead Agency, would be required to develop a detailed Offender Management Plan, which would be approved by the HRO Board. The OMP would address the management of the offender during sentence and post-sentence (in custody and/or in the community). The OMP would detail the obligations of the Lead Agency and other agencies as well as the rehabilitation goals and obligations of the offender. The Lead Agency would be required to consult any other service providers with responsibilities under the plan. An interagency approach would be particularly important in the case of offenders who are eligible for release during the parole period and who may be supervised post-sentence in the community under a supervision HRO order, as there would need to be collaboration with other agencies to provide housing, employment and treatment services.
3.7.71 The draft Offender Management Plan would be sent to the HRO Board for approval. If the HRO Board formed the view that the plan failed to address the issues raised in the risk assessment, or those raised by the court at the time the order was made, or in any other way failed to provide adequate strategies to manage the offender, the HRO Board could direct the lead agency to redraft and resubmit the plan. This plan would be updated on a regular basis, with annual reviews by the HRO Board.
3.7.72 The Offender Management Plan would identify a Case Manager who would be responsible for the implementation of the plan and would report to the HRO Board on a regular basis. An OMP progress report would be submitted to the HRO Board prior to a review or where necessary (for example, if the offender was not complying with obligations under the order).
3.7.73 The Council further recommends that the HRO Board should have the power to issue formal directions to the Lead Agency and other agencies in relation to both the development and implementation of the plan, to avoid a situation where an offender, for whatever reason, does not receive the required care and services. To establish an agreed framework for cooperation and collaboration, we suggest that it may be helpful for the Board, once established, to enter into memoranda of understanding with agencies likely to be involved in the delivery of services to and/or management of high-risk offenders either detained or supervised in the community.
3.7.74 We recommend that as for the existing ESO scheme, any employees of the Department of Justice provided to the High-Risk Offenders Board by the Secretary should be subject to the directions of the Board. Officers should also be required to report to the Board at its request about a person subject to an HRO order.
3.7.75 To achieve a level of transparency in the HRO Board’s operation and the scheme more generally, it is suggested that the HRO Board should be subject to similar reporting requirements as the Adult Parole Board under the current extended supervision order scheme, including the production of annual reports on the number of offenders subject to orders. This issue is discussed further at [3.22.32]–[3.22.36].

Recommendation 13: High-Risk Offenders Board—Role and Powers

(2) The additional functions and powers of the Board specific to its role in managing high-risk offenders should include:

to approve and review Offender Management Plans;
to set the conditions of orders and to review and vary the conditions of orders;
to oversee the compliance of offenders with the conditions of their orders and their obligations under Offender Management Plans; and
to oversee the delivery of services under Offender Management Plans, including, if necessary, issuing directions to agencies involved in the delivery of these services.

Composition of the HRO Board

Issues and Consultation

3.7.76 Similar bodies established in Australia and internationally provide a possible guide to the membership of the HRO Board. For example, in Scotland, the Risk Management Authority is made up of members appointed by the Scottish Ministers.^[580] Current members include the Chair of the Parole Board, two forensic psychologists (with specialist expertise in the area of risk management) and the former Governor of the Scottish Prison Service.^[581] The membership of the MAPPPs in the United Kingdom, which manage offenders falling into the highest-risk category, consists of senior probation officers, senior police officers, probation officers, representatives of the Local Education Authority, health representatives, victim liaison officers, local housing providers, social services and other relevant service providers.

3.7.77 A local example is the Multiple and Complex Needs Panel set up in Victoria to deal with people with a mental disorder, acquired brain injury or intellectual impairment who have exhibited some form of high-risk behaviour and require supervision and support. The MACNI Panel has 14 members appointed by the Minister responsible for the Department of Human Services on the basis of their ‘significant knowledge of, or significant experience in providing welfare services, health services, mental health services, disability services, drug and alcohol treatment, offender services or housing and support services’.^[582]

3.7.78 Following the Scottish model, the membership of the HRO Board could include a member of the Adult Parole Board, a senior person with relevant corrections experience, and professionals with expertise in working with perpetrators of sexual assault (such as psychologists or psychiatrists). Similar to the NSW SORC, the Panel might also include people with experience in working with victims of crime, such as the Centres Against Sexual Assault, and other community representatives.

3.7.79 Victoria Police recommended that if a body such as the HRO Board is established, it should have a core membership ‘with the ability to access information from additional members as required’.^[583] It recommended that the ‘core group’ should include representatives of Corrections Victoria, Victoria Police and the Office of Public Prosecutions, and should also include a forensic psychiatrist.^[584] The Council notes that if the DPP has responsibility for applications under the scheme it would not be appropriate for a representative of the OPP to be a member of such a body.

3.7.80 The OPP also supported including on the Board a senior person from Corrections involved in sex offender management, and a forensic psychologist or psychiatrist.^[585]

3.7.81 The Office of the Child Safety Commissioner suggested that the membership of the HRO Panel should include:
- a member of the Adult Parole Board;
- a senior representative with corrections experience;
- a senior member of Victoria Police;
- a senior representative from the Office of Housing;
- professionals with specialist expertise in working with sex offenders; and

• a senior person with sexual assault counselling and policy experience and knowledge of children’s development and the impact of trauma.^[586]

3.7.82 The OCSC submitted that whatever the composition of the Board, ‘it is essential that ... members have adequate expertise in assessing the level of risk posed by an individual offender and what [is] required to manage this risk through rehabilitation’.^[587]

3.7.83 The OCSC agreed with views that prosecuting authorities and those involved in the daily management of offenders should not be represented on the Board, to avoid any potential conflict of interest. However, it shared concerns that due to the small pool of persons with specialist expertise in sexual offence treatment, ‘appointments to the [Board] will critically deplete the availability of suitable professionals to provide assessment and treatment’.^[588]

3.7.84 South Eastern CASA suggested that the membership of the Panel should include a forensic psychiatrist or psychologist, a social worker, experts in the field of offending/criminology, victim advocates, people with legal expertise such as lawyers and police officers, and community representatives.^[589]

3.7.85 Springvale Monash Legal Service Inc, while opposed to the concept of continuing detention, suggested that if such a scheme were introduced, provision should be made for any bodies established, such as the High-Risk Offenders Board, to allow the opinions and assessments of prisoners and prison staff to be taken into account. The Legal Service submitted:

While it may be impractical or politically untenable to give members of these groups a position on the HRO [Board], it is entirely appropriate that the [Board] include members with extensive experience in working with these groups, whose formal responsibility it is to liaise with them, both for the purposes of determining general policy, and providing alternate perspectives on the circumstances of specific ‘difficult’ cases.^[590]

The Council’s View

3.7.86 The Council has not finally resolved the precise composition of the Board, as it considers that this is a matter best determined by government after further consultation with the Adult Parole Board, the Department of Justice and other relevant stakeholders if our recommendation to establish such an authority is acted on. However, it seems to us that given the nature of the proposed functions of the Board, at a minimum a current (or possibly retired) Supreme Court judge should be appointed to chair the Board and that the Deputy Chairperson should be, if not a judicial member, then an experienced legal practitioner. Although we do not recommend that the Board’s decisions or the manner in which these decisions have been reached should be subject to appeal, there is a clear interest in the Board operating as far as possible in accordance with the rules of procedural fairness. The appointment of a judicial member or members and other legally qualified members will also help to enhance public confidence in the operation and independence of the Board.
3.7.87 For reasons of independence, and to avoid potential conflicts of interest, we would caution against the representation of Corrections Victoria, the OPP, Victoria Police or other agencies likely to be involved directly or indirectly in the delivery of services or day-to-day management of offenders subject to orders. Such representatives, however, could perform an important function in providing relevant information to the HRO Board and could be permitted to attend Board meetings as observers.
3.7.88 We also see a benefit in broader community representation on the Board, including at least one member with a victims’ perspective. The appointment of community members will properly recognise the significant public interest in the work of the Board in enhancing public safety through the reduction of risk, and ensure that community views are factored into decisions concerning release and the types of conditions that might be imposed for community protection purposes.
3.7.89 While it may also be beneficial to have a forensic psychiatrist or psychologist on the Board with expertise in the management of sex offenders, we acknowledge concerns that the appointment of such a person may further deplete the small pool of professionals who are qualified to undertake risk assessments. On this basis, should the Office of the Risk Management Monitor be established, we suggest that this person could take on an advisory role in relation to the Board. Again, due to concerns about independence and the potential for conflicts of interest, we would recommend against appointing the Monitor to the Board as a member.

Recommendation 14: High-Risk Offenders Board—Composition

(1) The membership of the High-Risk Offenders Board should be determined in consultation with the Adult Parole Board, the Department of Justice and other relevant stakeholders.

(2) A current or retired Supreme Court judge should be appointed to chair the Board. The Deputy Chairperson should be a judicial officer or an experienced legal practitioner.

(3) The Board should also include community representatives, including at least one member representing the interests and views of victims of crime.

3.8 Who Should Apply?

The Current Legal Context

Extended Supervision Orders

3.8.1 In Victoria, the Secretary to the Department of Justice may apply to the Supreme or County Court (depending on where the offender was sentenced for the relevant offence) for an extended supervision order of up to 15 years in relation to eligible offenders.^[591] The application must be accompanied by an assessment report by a psychologist, psychiatrist or specified health service provider.^[592]

New South Wales, Queensland and Western Australia

3.8.2 In Queensland and New South Wales, the State Attorneys-General may apply to the relevant Supreme Court for post-sentence orders.^[593] In Western Australia, the Director of Public Prosecutions may file an application,^[594] although the Attorney-General also has the power to do so.^[595] (See further Table 4 in Appendix 1).It would seem that all the applications made to date in Western Australia, have been made by the Director of Public Prosecutions.^[596]

Issues and Consultation

3.8.3 Our discussion model proposed giving the Director of Public Prosecutions, rather than the Secretary to the Department of Justice, responsibility for applying for orders under a new scheme. This proposal was developed in response to concerns that the person charged with deciding whether to apply for an order, and for making the application, should be independent of government.

3.8.4 Some support was expressed for this proposal.^[597] Others, while agreeing that the decision should be made by someone independent of government, expressed some uncertainty about whether this responsibility should be given to the DPP or a new statutory office should be created for this purpose.^[598] The Law Institute of Victoria was concerned about the potential for the DPP to be influenced by information and opinions formed at the time the person was prosecuted for the original offence:

The LIV agrees that the decision to make an application for [an order] should be removed from the political process and that it is appropriate for an independent body to play this role. The LIV submits that the Director of Public Prosecutions (DPP) is probably the most appropriate body to make the application on the recommendation of the High-Risk Offenders Panel ... However, the LIV does have some concerns about the DPP playing this role. The Office of Public Prosecutions (OPP) would have prosecuted the case originally and may have already formed opinions based on material which was not admissible at trial or even on charges which were discharged or on which the defendant was acquitted.^[599]

3.8.5 Significantly, the Office of Public Prosecutions did not support this aspect of the model, recommending that the decision whether or not to apply for an order should be made by either the Secretary to the Department of Justice or the Attorney-General, on the advice of the High-Risk Offenders Panel. In opposing the DPP taking on this role, the OPP submitted:

The functions of the DPP, as enshrined in the Public Prosecutions Act 1994, relate to the curial process and cease at the conclusion of any appellate hearings arising from the prosecution.

The DPP plays no part in the management of offenders during their sentence or at the conclusion of any sentence. These are more appropriately categorised as executive, rather than prosecutorial, functions.^[600]

3.8.6 The OPP distinguished the role played by the DPP in relation to review hearings for offenders on indefinite sentences and for those subject to supervision under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) from the proposed role on the following basis:

By contrast, the DPP’s role in relation to the review of persons on indefinite sentences is appropriate and defensible, because the DPP makes applications that such persons be indefinitely detained during the court process, and the nature of the order made at the time of sentence necessitates the DPP’s continued involvement in the review process. The DPP presently also plays a role in relation to the review of persons subject to supervision in accordance with the CMIA. However, in relation to these hearings, the DPP appears as amicus curiae and does not play an active role in the review process, although we do provide a degree of administrative/logistic support to that process.^[601]

3.8.7 The OPP submission suggested that concerns over the possible politicisation of the process could be addressed, first by allowing the Attorney-General or the Secretary to make applications on the recommendation of the independent HRO Panel proposed in the discussion model, and secondly by having the court decide whether or not to grant an application. The Council notes that as we have refined the discussion model to retain the current screening process (rather than setting up an independent screening body) the first safeguard referred to by the OPP would no longer be present. Alternatively, the OPP submitted, ‘a new independent person or authority should be provided for in the legislative scheme’.^[602]

3.8.8 Victoria Police were in favour of the Attorney-General, rather than the DPP, having responsibility for applying for orders.^[603]

3.8.9 Apart from the question of who should make the application, issues arise about the responsibilities of the person charged with making the application. For example, in Queensland, once the Attorney-General decides to make an application for supervision or continuing detention, there are a number of procedural requirements about the form of the application and supporting documentation required.^[604] The Western Australian legislation also sets out the duties of the DPP under the Act, such as a duty to disclose all evidence to the offender.^[605]

The Council’s View

Who Should Make the Application?

3.8.10 As we have already noted, post-sentence orders are extraordinary measures. Until recently the role of the courts did not extend to issues of post-sentence management. While the functions of the DPP currently are confined largely to the prosecution of criminal matters, sentencing, and appeals against conviction or sentence, in our view this is not a sufficient basis on which to rule out the possible involvement of the DPP in relation to post-sentence orders. We note in this context that the DPP already has considerable responsibilities that fall outside the traditional role of this office under the Confiscation Act 1997 (Vic). We further note that in Western Australia, which permits either the Attorney-General or the Director of Public Prosecutions to make the application,^[606] it seems that the DPP has been responsible for making all the applications for orders under the scheme (see above [3.8.2]).

3.8.11 After having considered the range of views expressed to us, including those expressed by the OPP, the Council remains of the view that the DPP is best placed to handle applications for post-sentence orders. We believe that due to the politically charged nature of these applications, it is desirable for the application process to be removed as far as possible from the political process and to be free from any suggestion of political interference.^[607] The independence of the DPP from government, and the experience of both the DPP and OPP in dealing with indefinite sentences and other sentencing matters requiring assessments to be made of future risk, suggest the DPP is well placed to carry out this role. Independent consideration of whether or not an application should be made is an important safeguard, given our recommendation that an internal screening board should continue to be responsible for the initial screening of eligible offenders.

3.8.12 The Council accepts that the OPP opposes this proposal, and suggests that these responsibilities should not be assigned without further consultations taking place. We also believe this new role should not be conferred without the provision of additional resources and funding to allow the DPP to carry out these new responsibilities.
3.8.13 An alternative option to ensure the independence of the application process would be to establish a new independent statutory office with responsibility for deciding whether an application should be made, and in relevant cases, making applications for orders.

What Information Should be Provided?

3.8.14 The Council recommends that the screening board should provide the DPP with a report that includes recommendations as to whether an application should be made.^[608] A copy of any assessment reports prepared, and other supporting documentation, should accompany this advice. The DPP should not be bound by these recommendations and should have the power to request the screening body to arrange additional assessment reports if he or she believes that this would better inform the decision about whether an application should be made.

3.8.15 There will also need to be appropriate arrangements put in place to ensure the provision of information to the DPP by the Department of Justice, and others who may have information relevant to the making of an application. In New South Wales, to inform the making of the decision, the Attorney-General has a power to compel the production of any document, report, or other information in a person’s possession or under that person’s control that relates to the behaviour, or physical or mental condition, of any offender.^[609] A failure to comply with such a requirement is an offence punishable by 100 penalty units or up to two years’ imprisonment.^[610] While it may be inappropriate to give the DPP such a power, we believe the person responsible for making the decision about whether or not an application should be made, and the type of order to be applied for, should have access to any information that may assist in making these decisions.

Recommendation 15: Body Responsible for Applying for an Order

15—A Reformed Extended Supervision Scheme

(1) The Director of Public Prosecutions, rather than the Secretary to the Department of Justice, should determine whether or not an application for an extended supervision order should be made.

15—B New High-Risk Offender Scheme

(1) The Director of Public Prosecutions should determine whether or not an application for an high-risk offender order should be made.

(2) The Director of Public Prosecutions should have the power to apply for a high-risk offender order under the new scheme.

3.9 Timing of Applications and Commencement of Orders

Introduction

3.9.1 The cut-off point for making applications for orders and the time at which the order comes into effect are relevant to both the scheme’s purpose and its compatibility with human rights. If rehabilitation of the offender is an important component of the scheme, applications should be made as early as possible so that if an offender is found to pose an unacceptable risk, the intensive management of the offender by the High-Risk Offenders Board can begin immediately and the offender is placed on notice that he or she should participate in those rehabilitation opportunities that are offered.

Applications for Orders

The Current Legal Framework

Extended Supervision Orders

3.9.2 An application for an extended supervision order must be made while an offender is serving a relevant custodial sentence, or, in particular circumstances, another custodial sentence served concurrently or cumulatively with the relevant custodial sentence.^[611] In Victoria there are no limitations placed on when an application must be made, apart from the requirement that the offender must still be under sentence at the time of the application.

New South Wales, Queensland and Western Australia

3.9.3 In Queensland and New South Wales, applications must be made in the last six months of an offender’s sentence.^[612] In Western Australia, if the person is in custody, an application cannot be filed ‘unless there is a possibility that the person might be released from custody within the period of 6 months after the application is made’.^[613] This suggests that, similar to Queensland and New South Wales, applications must be made towards the end of an offender’s sentence. (See further Table 4 in Appendix 1).

Issues and Consultation

3.9.4 In considering the preferable cut-off point for making applications the Council compared the Victorian approach to those of other jurisdictions and consulted widely.
3.9.5 Our discussion model proposed that, under a new scheme, applications for orders should be made no later than two-thirds of the way through an offender’s non-parole period (or if no non-parole period was set, two-thirds of the way through an offender’s sentence). It was suggested that an application could only be made after this point if there was new evidence concerning the offender’s risk. For example, if an offender had been sentenced to 15 years’ imprisonment with a non-parole period of 12 years, an application would need to be made by the time the offender had served eight years of his or her sentence.
3.9.6 The reason for the discussion model proposal was to ensure, as a matter of fairness, that offenders were aware at a much earlier stage that they may be subject to a post-sentence order. It was hoped that this would provide a greater incentive for them to commit to programs to reduce their risk, and that it would also ensure that there was sufficient time to plan for their eventual release and reintegration.
3.9.7 The importance of alerting offenders early in their sentence (or at sentence) about their eligibility for a post-sentence scheme was referred to by many who made submissions and participated in consultations. One submission suggested that engaging an offender earlier in the process, at the point of sentencing, would provide a better means of encouraging compliance:

Sex offender management legislation generally focuses on external control mechanisms rather than engaging the individual offender to change (a major flaw with the new Serious Sex Offenders Monitoring Act 2005 (Vic) as well) ... The way it is ... proposed, two-thirds of the way through the sentence an application for continued detention is made and so the onus is on the offender to participate in programs in order to reduce risk. This approach uses a threat of punishment if the offender does not comply. (I cannot imagine where further imprisonment would not be considered punishment by an offender, despite the discussion in the SAC paper). However, the offender may disregard this process as the threat is not immediate, s/he will appeal and so on and may realise too late that participation in programs should have occurred. A therapeutic approach would make the possibility of continued detention clear at the sentencing phase with specific individualised conditions regarding what the offender should do (eg targeted programs, agree to community supervision) rather than what the offender should not do (eg loitering, Internet access) in order to earn his or her way into community release rather than off continued detention. This approach is more engaging than threatening. ^[614]

3.9.8 The OPP was among those who supported the discussion model approach, including limiting the making of applications to the first two-thirds of an offender’s non-parole period.^[615] However, the OPP suggested that the success of this approach would depend on there being ‘early assessment and treatment of offenders whilst in custody’.^[616]

3.9.9 A number of submissions emphasised the importance of rehabilitation as a ‘first priority of any system’.^[617] Early assessment to identify high-risk offenders and the provision of treatment opportunities to offenders throughout their sentences are both central to facilitating an offender’s rehabilitation while under sentence. This was the driving purpose behind the early application date originally contemplated by the Council.

3.9.10 As discussed at [2.3.12], currently treatment programs provided to offenders are intensified in the period immediately before they become eligible for parole. With this approach to the timing of treatment, there is a risk that by setting a cut-off date that is too early, the offender may not yet have begun treatment.
3.9.11 Some of those we consulted supported a later cut-off point for applications than that proposed in the discussion model. For example, Victoria Police supported a deadline for applications similar to that under the current ESO scheme and schemes in relevant Australian jurisdictions, submitting that applications:

should be permitted at any time up to the completion of the offender’s sentence (including any period of parole). Generally the application should be made in the final year of an offender’s custodial sentence to allow for the subject to make full use of any rehabilitation opportunities. The scheme must be flexible enough to allow for any exceptional cases.

The Council’s View

3.9.12 The Council is of the opinion that offenders eligible for post-sentence orders should be screened as early as practicable during their sentence (see further Section 3.6). Those who are assessed as high-risk should be offered immediate access to comprehensive treatment and rehabilitation programs, regardless of whether they are ultimately made subject to a post-sentence order.
3.9.13 The Council acknowledges that under the current system the most intensive provision of treatment for offenders is in the period immediately preceding the end of the non-parole period. The cut-off date for applications proposed under the discussion model, therefore, may be reached before the commencement of intensive treatment.
3.9.14 Although we believe it is essential that a post-sentence scheme be accompanied by a significant boost in funding and resources for the provision of treatment for offenders in general, and high-risk offenders in particular, we are mindful that a new scheme must also be compatible with current treatment practices. Providing some flexibility in the timing of applications for post-sentence orders may allow evidence about the treatment programs that have been provided and the offender’s progress in those programs to be taken into account by a court in determining the application.
3.9.15 For this reason, we recommend that in cases where the court has fixed a non-parole period, applications should be made towards the end of this period unless new adverse evidence relevant to an offender’s risk becomes available after this time (in which case the application must be made before the expiry of his or her sentence).
3.9.16 We recognise that in some cases a court may have chosen not to fix a non-parole period. In these circumstances, we suggest, as a matter of practice, that applications should be made no later than two-thirds of the way through an offender’s sentence (as per the discussion model). This will ensure that offenders who are ineligible for parole will still have the benefit of being managed by the HRO Board during sentence, and be provided with opportunities to reduce their risk prior to the expiry of their sentence and the court’s initial review of the HRO order (or extended supervision order, under a reformed ESO scheme).

Commencement of Orders

The Current Extended Supervision Scheme

3.9.17 The current Victorian scheme, like post-sentence schemes in other Australian jurisdictions, is premised on orders commencing upon the completion of an offender’s sentence.

Issues and Consultation

3.9.18 Our discussion model proposed that although applications for orders should be made early, orders would only commence at the time of expiry of the offender’s sentence.

3.9.19 A major issue that arose in consultations was that if applications for post-sentence orders are made shortly before the expiry of an offender’s sentence and orders only commence once the sentence has expired, orders may be made to compensate for a lack of treatment during an offender’s sentence.^[618] There was concern that if offenders on long sentences were provided with insufficient rehabilitation opportunities during sentence, the mechanism of post-sentence orders could be used to extend the period of control over such offenders, instead of the state addressing these deficiencies.

3.9.20 One way to alleviate this problem could be the involvement of an independent body such as the proposed High-Risk Offenders Board, which would begin intensive management of high-risk offenders at an earlier stage during their sentence.^[619] This could be built into the high-risk offender scheme: for example, upon granting an application a court could also make an order that the management of the offender is to be transferred to the HRO Board.

3.9.21 As discussed in Section 3.7 of this Report, the HRO Board would have similar powers and responsibilities to the Adult Parole Board in managing the offender during parole, and would provide more intensive management and have the capacity to direct agencies to provide services. Granting an application for a HRO order and transferring the management of the offender to the HRO Board would also place the offender on notice that a lack of cooperation (including a failure to participate in treatment offered) would be relevant to whether the HRO order would be affirmed at the conclusion of his or her sentence and what type of HRO order would be made (i.e. a supervision HRO order only, or a detention and supervision HRO order allowing for the offender’s continuing detention).

The Council’s View

3.9.22 The Council recommends that as is the case under the existing ESO scheme, the initial application for a HRO order should only be able to be made while an offender is serving a custodial sentence for a relevant offence, or in particular circumstances, another custodial sentence served concurrently or cumulatively with the custodial sentence imposed for that offence. Applications for second and subsequent orders similarly should be made while an offender is subject to an existing post-sentence order.
3.9.23 We recommend that if an application is determined prior to the expiry of an offender’s non-parole period, the offender should be managed by the HRO Board from the date at which he or she becomes eligible for parole. If the application for an order is finalised once the offender has already reached parole eligibility, or the offender is not eligible for parole, the management of the offender should be transferred immediately.
3.9.24 Before the end of the sentence, the court would be required to review whether or not a post-sentence order was still required, and if so, whether the offender should be managed by way of supervision in the community or by way of detention and supervision as directed by the HRO Board. The review of orders is discussed at Section 3.18 of this Report.
3.9.25 The timing of applications is illustrated in Figure 5. For the purposes of illustration, a 15-year sentence with no non-parole period, and a 15-year sentence with a non-parole period of 12 years has been used.

Figure 5: Timing of Applications

Sentences with no non-parole period: 10 years suggested date by which application should be made (guideline only) under the final model. Maximum 15 years final cut-off for application under the final model and the current scheme.

Sentences with non-parole period: 12 years non-parole period cut-off for application (unless new evidence) under the final model. Maximum 15 years final cut-off for application under the final model and the current scheme.

Recommendation 16: Timing of Applications and Commencement of Orders

16—A Reformed Extended Supervision Scheme

(1) An application for an extended supervision order should only be permitted to be made:

while an offender is serving a custodial sentence for a relevant offence (a ‘relevant sentence’), or is serving another custodial sentence served concurrently with, or cumulatively on, a relevant sentence or on another sentence that was uncompleted at the time the relevant sentence was completed (as currently provided under section 4(1)(b) of the Serious Sex Offenders Monitoring Act 2005 (Vic)); or
while an offender is subject to a current extended supervision order.

(5) The continuing need for the extended supervision order and conditions of the order (if the court sets conditions) must be reviewed before the expiry of the offender’s sentence.

16—B New High-Risk Offender Scheme

(1) The high-risk offender legislation should provide that an application for a high-risk offender order should only be permitted to be made:

while an offender is serving a custodial sentence for a relevant offence (a ‘relevant sentence’), or is serving another custodial sentence served concurrently with, or cumulatively on, a relevant sentence or on another sentence that was uncompleted at the time the relevant sentence was completed (as currently provided under section 4(1)(b) of the Serious Sex Offenders Monitoring Act 2005 (Vic)); or
while an offender is subject to a current high-risk offender order.

(4) Before the expiry of the offender’s sentence, the court must review the continuing need for the high-risk offender order.

3.9.26

3.10 The Legal Test and Standard of Proof

Introduction

3.10.1 There are a number of factors that a court must take into account in determining whether a post-sentence order should be made. This section examines:
- the legal tests that apply to the current Victorian ESO scheme, other post-sentence schemes and related provisions, such as those relating to indefinite sentences;
- the onus and standard of proof that applies to these tests;
- the process for assessing risk and information used by the court to determine whether the legal test has been satisfied, including assessment reports; and
- differences between clinical risk assessments and the legal test under the ESO scheme.

The Current Legal Framework

Introduction

3.10.2 Table 3 in Appendix 1 compares the legal test for assessing risk and the standard and onus of proof in the Victorian extended supervision scheme with the tests in the New South Wales, Queensland, and Western Australian supervision and continuing detention schemes. In our Discussion Paper we compared the tests in Australian and international post-sentence schemes,^[620] as well as the test used to determine whether an offender should be sentenced to an indefinite sentence in Victoria.^[621] The Council has drawn from these tests in formulating its recommendations.

The Current Extended Supervision Scheme

3.10.3 In Victoria, a court may only make an extended supervision order if it is satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence if released in the community after serving a prison sentence and not made subject to an extended supervision order.^[622] The Secretary to the Departmentof Justice has the onus of proving this likelihood.^[623] The standard of proof of a ‘high degree of probability’ lies between the criminal standard of proof (beyond reasonable doubt) and the civil standard of proof (on the balance of probabilities).^[624]

3.10.4 A decision under the scheme involves two stages:
- the court must be satisfied that there is a high degree of probability that the offender is likely to (or will) commit a relevant offence; and

• if the court is so satisfied, it must decide whether to exercise its discretion to order an extended supervision order.^[625]

3.10.5 The majority of the High Court in Fardon referred to the court’s discretion in finding the Queensland scheme constitutionally valid.^[626]

Indefinite Sentences in Victoria

3.10.6 Indefinite sentences are a sentencing option available under the Sentencing Act 1991 (Vic) for certain high-risk offenders.^[627] In determining whether an indefinite sentence should be imposed a court must be satisfied, to a high degree of probability, that the offender is a serious danger to the community because of:

his or her character, past history, age, health, or mental condition;
the nature and gravity of the serious offence; and

• any special circumstances.^[628]

3.10.7 Unlike the current test that applies to ESOs, the offender’s danger to the community is determined having regard to his or her past behaviour, existing character and other circumstances, rather than solely on predictions of the likelihood that he or she will reoffend.

Queensland, Western Australia and New South Wales

3.10.8 The New South Wales post-sentence scheme adopts the same legal test and standard of proof as the Victorian ESO scheme. Before a supervision or detention order can be made, the court must be satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision, or detained.^[629]

3.10.9 In both Queensland and Western Australia the Supreme Court must be satisfied that the offender is a ‘serious danger to the community’ in the absence of an order for supervision or detention.^[630] ‘Serious danger’ is defined as an ‘unacceptable risk that the offender will commit a serious sexual offence’^[631] if released from custody or if released from custody without an extended supervision order being made. The court must be satisfied by acceptable, cogent evidence and to a high degree of probability that the evidence in the case is of sufficient weight to justify the decision.^[632] The Attorney-General in Queensland, and the Director of Public Prosecutions in Western Australia, have the onus of satisfying the court that the person is a serious danger to the community.^[633]

3.10.10 The test set out in the Queensland scheme was one of the matters that the majority of the High Court in Fardon referred to in concluding that the Queensland scheme was constitutionally valid.^[634]

3.10.11 In practice, the Queensland and Western Australian test is a two-stage test which requires the court impose the least restrictive order designed to meet the purposes of the legislation. The court must consider:
- whether the offender is a serious danger to the community; and

• if so, whether a supervision order would be sufficient to protect the community, or whether it is necessary to make an order for continuing detention.^[635]

3.10.12 The New South Wales test also includes a presumption that the offender’s risk will be managed according to the least restrictive alternative—the Supreme Court must be satisfied to a high degree of probability that the offender is likely to commit a further serious offence if he or she is not detained and that adequate supervision will not be provided by an extended supervision order.^[636] The criteria for making the order are similar to those in Queensland, but the safety of the community is set out first.^[637]

3.10.13 As in Victoria, the other Australian legislative schemes provide the courts with a discretion, once the legal criterion is satisfied, as to whether or not to make an order.

Issues and Consultation

Clinical Assessments and the Legal Test

3.10.14 As discussed in Section 2.2 and in the Council’s earlier Di[638]ssion Paper,⁶³⁸ there are a number of challenges faced in predicting the likelihood of an individual offender reoffending. One of the criticisms of the current legal test for ESOs—that ‘the offender is likely to commit a relevant offence’—is that it exists independently of any reasonably reliable method of predicting individual (as opposed to group) risk. For example, while a high-risk group may be said to have reoffending rates between 30 and 60 per cent, what this translates to is that an individual within that high-risk group ‘can be said with 95% confidence to have a reoffending rate between 3% [639] 95%’.⁶³⁹ Due to the real problems in accurately identifying the risk posed by a particular individual who falls into a ‘high-risk group’, it could be argued that the current test for ESOs (that the offender is likely to commit another specified offence) and standard of proof (a high degree of probability) are already impossibly high.

3.10.15 However, as recognised by the Victorian Court of Appeal, the process of assessing risk is a qualitatively different one from determining whether the legal test has been satisfied, which requires consideration of a broader range of issues:

The question whether the offender is likely, in the relevant sense, to re-offend is a question of fact to be answered by the application of a legal criterion. There is no one-to-one correspondence between the lawyer’s high degree of probability and the medical expert’s high risk of re-offending.^[640]

3.10.16 Problems in assessing risk, therefore, may not necessarily pose a barrier to finding that the legal test has been satisfied. Due to the current wording of the Victorian test, however, there is a danger that the forensic and legal tests may become blurred. In Victoria the issue is further complicated by the requirement that an assessment report set out the medical expert's assessment of the risk that the offender will commit another relevant offence if released in the community and not made subject to an extended supervision order, and his or her reasons for that assessment.^[641]

3.10.17 As the Floud Working Party writing on these issues in the early 1980s recognised, risks or the likelihood of reoffending, objectively determined, do not necessarily translate to dangers calling for preventive measures:

Risks are objectively determinable, at least in principle ... Dangers, on the other hand, are subjectively determined; which is not to say they are necessarily irrationally determined, only that the magnitude of a risk, however accurately determined, does not establish it without further argument as acceptable or unacceptable. Determining the magnitude of a risk is one thing; judgment that it represents a danger demanding to be averted by preventive measures is another.^[642]

3.10.18 The Floud Working Party addressed this issue by suggesting that in order to justify preventive measures, what is required is more than a simple prediction of the likelihood of reoffending; in such cases courts must make a predictive judgment involving both ‘an evaluation of someone’s character—his disposition to act in a certain way’ and a prediction of ‘the probability that in the foreseeable circumstances he will actually [act] in that certain way’.^[643] The first involves a subjective assessment of character, and the second a more objective assessment of individual risk. The Working Party suggested that ‘[t]hese elements are not clearly distinguishable’ and ‘[f]or practical purposes they are inextricable’.^[644]

3.10.19 While in theory a court may take a range of matters into account, it could be expected that courts making decisions about whether the legal test is satisfied will be highly influenced by the views and opinions of medical experts. The ability of courts to satisfy themselves that particular individuals have a high likelihood of reoffending therefore is predicated, at least to some extent, on an assumption that clinicians are able accurately to predict the future behaviour of individual offenders to a high degree of certainty. It has been argued that a major clinical limitation of continuing detention legislation is the assumption that clinicians can predict risk to a level that justifies the detention of particular individuals.^[645]

3.10.20 The New Zealand Court of Appeal recently considered a provision cast in similar terms to the Victorian test for ESOs: it cautioned against courts merely ‘rubber-stamping’ assessment reports prepared by the Department of Corrections in determining such applications:

We wish to make it clear, however, that first instance Judges need not accept it as necessary, or right, to rubber stamp opinions of health assessors advanced by the Department of Corrections in ESO applications ... What is required is a careful assessment of all the historical and current factors, along with expert opinions of others, bearing in mind that an ESO can have substantial ongoing impact on an offender who has already completed the sentence imposed by the Court for the offending. The risk of re-offending has to be such that it cannot properly be ignored when viewed against the gravity of likely re-offending. Naturally, every case requires individual judgement and assessment. Jurisdiction to make the ESO arises only if there is a real and ongoing risk of committing relevant sexual offences.^[646]

3.10.21 Another danger is that clinical risk assessments are removed from their primary context, which is one of treatment and intervention.^[647] The position of health professionals under post-sentence schemes has been criticised on the basis that it may take health professionals out of their therapeutic role and place them in a compromising, policing role, making them the ‘agents of a particularly draconian form of social control’.^[648] It is therefore critical to differentiate the role in court of forensic clinicians who give an opinion about the probability of risk, and the role of judges who must decide on the unacceptability of the risk.^[649]

The Test and Standard of Proof

3.10.22 In our preliminary consultations issues were raised about how the legal test should be formulated, what the onus of proof should be, risk assessment and the matters that the court should consider in deciding whether the test was satisfied. These are set out in the Council’s Discussion Paper at [6.177]–[6.180].
3.10.23 In our discussion model we proposed that a simplified version of the Queensland test be adopted if a new high-risk offender scheme is introduced. We also proposed that the requisite standard of proof be ‘a high degree of probability’.

3.10.24 The concept of ‘unacceptable risk’ is a common one in the bail context in Victoria. Under the Bail Act 1977 (Vic), accused persons are entitled to be released on bail, unless the prosecution satisfies the court that if they are released on bail they would fail to appear in court, commit an offence while on bail, endanger the safety or welfare of members of the public and/or interfere with witnesses or otherwise obstruct the course of justice.^[650] In the bail context there is no set standard of proof. The prosecution must establish only that there is a ‘sufficient likelihood of the occurrence of the risk, having regard to all relevant circumstances’ to show why bail should not be granted; ‘[t]he degree of likelihood of the occurrence of the event may be only one factor which bears upon whether the risk is unacceptable’.^[651]

3.10.25 Assessments of the acceptability or unacceptability of risk require consideration of three separate issues:
- the nature of the risk (the particular outcome to be avoided, such as the sexual abuse of a child);
- the degree of risk that the particular outcome may occur; and
- the severity of the harm that may be caused if it does occur.

3.10.26 In circumstances where the possible harm is serious (such as sexual abuse), a minimal risk that the risk will come to fruition may be sufficient to find that the risk is an unacceptable one.^[652] Under the Queensland and Western Australian schemes, the phrase ‘unacceptable risk’ is not defined. A moderate degree of risk in some cases has been found to be ‘unacceptable’.^[653]

3.10.27 A benefit of a test that relies on the unacceptability of risk, rather than likelihood of reoffending, is that it is more consistent with medical assessments of risk. It provides courts with greater latitude to find that a risk is unacceptable, even if it cannot be determined with a high degree of confidence that an individual offender is likely to reoffend. It also recognises that: ‘determinations about the proper use of predictions are, in the end, not a statistical or scientific matter, but a political and social judgment about what risks are unacceptable, and what responses to risks should be allowed’.^[654] The Queensland Supreme Court recognised this in considering the meaning of ‘unacceptable risk’ in Attorney-General (Qld) v Sutherland:

the assessment of what level of risk is unacceptable, or alternatively put, what order is necessary to ensure adequate protection of the community, is not a matter for psychiatric opinion. It is a matter for judicial determination, requiring a value judgement as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty.^[655]

3.10.28 Such a test, however, is not without its detractors. For example, one of the arguments made in challenging the constitutionality of the Queensland scheme in Fardon was that the test was ‘devoid of practical content’.^[656] The Chief Justice, in dismissing this argument, commented:

On the contrary, the standard of ‘unacceptable risk’ was referred to by this court in M v M in the context of the magnitude of a risk which would justify a court in denying a parent access to a child. The court warned against ‘striving for a greater degree of definition than the subject is capable of yielding’. The phrase is used in the Bail Act 1980 (Qld), which provides the courts may deny bail where there is an unacceptable risk that the offender will fail to appear (s 16). It is not devoid of content, and its use does not warrant a conclusion that the decision making process is a meaningless charade.^[657]

3.10.29 In the context of the indefinite sentencing provisions, it has been argued that the absence of clear criteria for determining whether the discretion should be exercised results in what are essentially arbitrary decisions of dangerousness, as ‘[i]f a fact about which the court is required to make a finding cannot be objectively determined, then it is arbitrary, in the sense that it is “subject to individual will or judgment” and “not attributable to any rule or law”’.^[658] Other commentators have expressed similar concerns that substantive tests of ‘dangerousness’ should be adopted to limit indefinite detention schemes’ potential to capture ‘false positives’ and the potential for excessive use of such provisions.^[659]

3.10.30 In consultations relating to the discussion model a number of different views were expressed concerning both the test and the standard of proof that should be adopted. Some supported both the test and the standard of proof proposed in the discussion model.^[660]

3.10.31 Victoria Police, while supporting the proposed test, submitted that the standard of proof should be the lower civil standard (on the balance of probabilities).^[661] However, the civil standard of proof could be seen as too low, given the serious consequences for an offender of a continuing detention order being imposed. The need to establish that the test had been met to a ‘high degree of probability’ was one of the factors referred to by the High Court in Fardon in upholding the constitutionality of the Queensland scheme.^[662]

3.10.32 Victoria Legal Aid and the Criminal Bar Association were among those who argued for a higher criminal standard of proof (beyond reasonable doubt).^[663] The Supreme Court of Victoria was also in favour of the criminal standard of proof in determining whether the offender is an unacceptable risk:

The standard of proof required should be the criminal standard of beyond reasonable doubt. The deprivation of liberty is a serious matter and should not be determined on any lesser standard. The limitations of scientific prediction are not a justification for lowering that standard.^[664]

3.10.33 The Victorian Court of Appeal recognised in R v Carr that applying a criminal standard of proof—beyond reasonable doubt—to tests involving predictions of future behaviour may well be impossible to satisfy:

The standard of proof required is a high degree of probability which lies somewhere between the criminal and civil standards. The imposition of an indefinite sentence involves, to some extent, a prediction about the risk to the community that the offender poses if he or she were not indefinitely detained. Such a determination could never be reached if the standard of proof required were beyond reasonable doubt.^[665]

3.10.34 The Criminal Bar Association supported a test that involved a finding that the person ‘will commit a serious sexual or serious violent offence’, but accepted, as a matter of practicality, that a lower standard of proof than the criminal standard was appropriate; it did so on the basis that any person detained would be detained in a treatment facility, rather than a correctional centre:

Whilst some have suggested that the test should be beyond reasonable doubt, it seems to us that there is some unreality with the test at this level. The determination is not concerned with whether a person has committed a criminal offence. It is concerned with the mental functioning of a person who is an ongoing danger to themselves and/or the community. Further that person is not being sentenced to a term of imprisonment but rather to an in-house facility to receive on-going treatment. In these circumstances we believe that the test should be whether ‘there is a high probability that the person will commit a serious sexual or serious violent offence’.^[666]

3.10.35 Another submission supported a test that focused on the likelihood of committing a relevant offence, and argued that if the test were to emphasise the unacceptability of an offender’s risk, this should be defined. This submission supported the adoption of the criminal standard of proof.^[667]

3.10.36 Victoria Legal Aid shared concerns about the use of ‘unacceptable risk’ as the legal criterion, also arguing for a test that required proof of an offender’s likelihood of reoffending. VLA considered that:

Having regard to the infringement of human rights involved in making a continued detention order ... the test should require a high degree of probability that the person is likely to commit another serious offence. For example, ‘the offender is more likely than not to commit a relevant offence if released’.^[668]

Discretion and the Principle of Reciprocal Obligation

3.10.37 As discussed above, all jurisdictions with post-sentence schemes give the court discretion as to whether or not to make an order. Factors relevant to the court’s discretion might include not only an offender’s level of participation in programs and compliance with previous orders, but also whether the state has made all reasonable efforts to provide that offender with treatment and other services during the period of the sentence or previous order. The principle of reciprocal obligation as it applies in the sentencing context^[669] was discussed in the Pathways to Justice Report:

whilst acknowledging that resources will always be constrained, a just sentencing system should recognise that there is a reciprocal obligation between the offender and the state. When the state imposes a sentencing order upon an offender ... it expects the offender to comply with its terms. On the other hand, the offender has a right to expect that the services explicitly or implicitly linked to these orders, whether they be supervision, treatment or the provision of community work, will be adequately provided. All too often it is said that an offender has been ‘set up to fail’ because no, or inadequate, treatment or other services were provided following the imposition of the sentence.^[670]

3.10.38 In consultation for the Pathways report some questioned how this principle would operate in practice if the state has only limited capacity to provide services to offenders. Other criticisms included:

(a) the meaning of ‘deficiency’; (b) the ability of the courts to assess competing claims to resources, particularly where the services were provided by generic agencies not specifically funded to provide services to offenders and (c) what the consequences would be of taking deficiency of services into account. It [was] suggested that a better reform would be to improve pre-sentence reports to ensure beforehand that agencies are able to provide the necessary services suitable for offenders.^[671]

3.10.39 A number of those whom we consulted supported putting the principle of reciprocal obligation on a statutory footing should a continuing detention scheme be introduced in Victoria.^[672] The Criminal Bar Association argued that before an order can be made, the state should have to establish, beyond reasonable doubt, that all reasonable steps have been taken to provide opportunities for the offender’s rehabilitation, including giving the offender full information about available programs and if necessary, designing programs to meet the offender’s needs.^[673] An order should only be made, the CBA argued, if the court is satisfied that the circumstances giving rise to the alleged need for the order arise solely because of the behaviour of the prisoner while in the prison system, and not because of a failure of, or manipulation by, the prison system itself.^[674] A lack of financial or program resources to meet the offender’s needs should not be sufficient to satisfy this onus.^[675]

3.10.40 Victoria Legal Aid also supported legislative recognition of this principle. VLA pointed to a lack of reciprocal obligation as a deficiency of the Queensland legislation, as it ‘contains no provisions contemplating additional therapeutic supports or imposing any obligation on corrective services to rehabilitate the prisoner during the additional detention period’.^[676]

3.10.41 Although the Queensland legislation does not expressly recognise the obligations of the state, in practice plans for the management of offenders on continuing detention or supervision orders detail not only the obligations of the offender but also the responsibilities of corrective services staff.^[677] In Fardon, Justice Gummow interpreted the power of the court on a review under the Queensland scheme consistently with a principle of reciprocal obligation. Justice Gummow found that a court may be permitted to refuse an order for further detention (upon review) ‘by reason of failure by the appropriate authorities to implement the earlier order [for continuing detention]’, and suggested that ‘[a]n example would be an order for treatment of the prisoner to facilitate rehabilitation, an objective of the Act’.^[678]

The Council’s View

The Legal Test and Standard of Proof

3.10.42 The Council continues to be concerned that couching the test in terms of ‘likelihood’ runs the risk of blurring the legal and forensic test and will result in a test that may, in fact, be less transparent than one that recognises the true nature of the exercise—to assess the danger a particular offender is believed to pose to the community. Mental health professionals have argued that it is never possible to determine that an individual is more likely than not to reoffend—only that the person falls into a ‘high-risk’ group.
3.10.43 While we accept some of the limitations of a test of ‘unacceptable risk’, on balance we have decided that this is the better approach. This test, in our view, more clearly distinguishes the legal test from the forensic test, while acknowledging that the court’s decision, concerned as it is with future behaviour, necessarily must involve an element of subjective judgment.
3.10.44 We recommend that the standard of proof should be a high degree of probability—as it is for the current ESO test, and the tests applying in other Australian jurisdictions with detention and supervision schemes. In doing so, we acknowledge the strong support on the part of many for a standard of proof of ‘beyond reasonable doubt’. However, because the test is still concerned with the sufficiency of the evidence to support a finding of the risk of future offending, we believe that the level of certainty required by a standard of ‘beyond reasonable doubt’ could never be attained.
3.10.45 To protect against an overly broad provision that would capture those who do not present a serious danger to the community, we further recommend that the court be required to take into account a range of factors in determining whether the criterion has been satisfied. We recommend that these factors should include those set out in the current Serious Sex Offenders Monitoring Act 2005 (Vic), together with additional factors going to the offender’s risk, the need to protect the community from that risk, and any less restrictive means of managing the offender’s risk other than making an HRO order.
3.10.46 In identifying the elements and factors a court must take into account in assessing the unacceptability of risk, we have drawn from the existing indefinite sentence provisions in the Sentencing Act 1991 (Vic) and the factors identified as relevant in an assessment report under the Serious Sex Offenders Monitoring Act 2005 (Vic), and factors listed in the Queensland, New South Wales and West Australian legislation relevant to determining if the legal test is satisfied.

3.10.47 Our view that risk and community protection concerns alone should not be considered a sufficient basis on which to make a high-risk offender order is reflected in the requirement that the court must also be satisfied that the risk could not adequately be managed by less restrictive means. A similar requirement has been imported into the Disability Act 2006 (Vic) in relation to the making of supervised treatment orders by the Victorian Civil and Administrative Tribunal.^[679]

3.10.48 Finally, as the HRO order carries with it the potential to deprive an offender of his or her liberty, we recommend that a court should only be permitted to make a detention and supervision HRO order if the court first is satisfied that adequate supervision to manage the offender’s risk could not be provided under a supervision order alone. Under this test, there will be a clear presumption that the offender will be managed under supervision in the community.

Discretion and the Principle of Reciprocal Obligation

3.10.49 The court’s discretion as to whether or not to make an order is a crucial component of post-sentence schemes and the Council recommends that this should be retained in either a reformed ESO scheme or a new integrated HRO scheme. The principle of reciprocal obligation, which requires the state to provide opportunities for rehabilitation as well as requiring the offender to take up these opportunities, is clearly a relevant guideline for courts to take into account in the exercise of this discretion, including whether an order should allow for supervision only or for both supervision and detention. We note that courts are already interpreting the schemes operating in other jurisdictions consistently with this principle.
3.10.50 While the Council considered the option of making explicit reference to relevant principles that should guide the exercise of the discretion in the legislation, on balance we decided against this approach. There is likely to be a broad range of considerations to which a court will need to have regard in making its determination, and any attempt to list relevant factors risks elevating those contained in the legislation above others that might be equally as relevant. While the same criticism could be made of listing factors related to unacceptable risk, we believe the importance of the factors articulated to the assessment that must ultimately be made justifies listing them in this instance.
3.10.51 We believe that it is preferable to build the principle of reciprocal obligation into the way that risk management plans under the scheme are developed and managed. This will ensure that the obligations placed on both offenders and the state are clear and specific enough to allow for a proper assessment of whether those obligations are being met. Should a High-Risk Offenders Board be established, the monitoring of compliance with the obligations in treatment plans will fall largely to the Board, with the court also playing an important role through the review process. Under the recommended changes to the existing ESO scheme, should a Board not be established, the court would have responsibility for setting conditions and approving the broad terms of an offender’s risk management plan. The plan would set out the obligations of both the offender and agencies involved in the delivery of the plan. This could be taken into account by the court in reviewing orders, and in making decisions about whether the discretion to make a new order should be exercised when existing orders are close to expiring.

Recommendation 17: Test, Onus and Standard of Proof

17—A Reformed Extended Supervision Scheme

(a) the risk the offender would pose to the community if an extended supervision order were not made, taking into account:

the nature of and the circumstances of the offender’s commission of the previous offence or offences;
the pattern and progression of offending behaviour on the part of the offender;
the offender’s character, relevant background, age, health or medical conditions;
efforts made to date by the offender to address the causes of his or her offending behaviour, including whether he or she has actively participated in any rehabilitation programs, and if not, the reasons for this;
any assessment report, filed in court, whether by or on behalf of the Director of Public Prosecutions or the offender (including any information in that report relevant to the matters outlined above);
any other report made or evidence given by a medical expert (including any information in that report relevant to the matters outlined above);

(b) the need to protect the community from this risk; and

(c) whether there are any less restrictive means of managing the offender’s risk other than making an extended supervision order.

(3) Under section 11(2) of the Serious Sex Offenders Monitoring Act 2005 (Vic), the Director of Public Prosecutions, rather than the Secretary to the Department of Justice, should have the onus of proving the test.

(4) As section 11(5) of the Serious Sex Offenders Monitoring Act 2005 (Vic) currently provides, the offender and the person making the application should have the right to dispute evidence, including any report filed in whole or in part, and to lead evidence on the disputed matters, and in the case of reports filed, to cross-examine the author of the report on its contents, in any applications under the scheme.

(5) The court should continue to be permitted, under section 34 of the Serious Sex Offenders Monitoring Act 2005 (Vic), in hearing and determining any applications under the Act, to have regard to:

whether the offender cooperated—or cooperated fully—in the preparation of any assessment report;
if the offender did not cooperate—or did not cooperate fully—in the report preparation, his or her reasons for this;
whether the report was made without a personal examination of the offender; and
anything else that it considers appropriate.

17—B New High-Risk Offender Scheme

(2) Before making a detention and supervision high-risk offender order, the court must be satisfied that adequate supervision of the offender could not be provided by supervision alone.

(3) In determining whether there is an unacceptable risk that the offender will reoffend if not made subject to a high-risk offender order, the court should be required to have regard to—

(a) the risk the offender would pose to the community if a high-risk offender order is not made, taking into account:

the nature of and the circumstances of the offender’s commission of the previous offence or offences;
the pattern and progression of offending behaviour on the part of the offender;
the offender’s character, relevant background, age, health or medical conditions;
efforts made to date by the offender to address the causes of his or her offending behaviour, including whether he or she has actively participated in any rehabilitation programs, and if not, the reasons for this;
any assessment report, filed in court, whether by or on behalf of the Director of Public Prosecutions or the offender (including any information in that report relevant to the matters outlined above);
any other report made or evidence given by a medical expert (including any information in that report relevant to the matters outlined above);

(b) the need to protect members of the community from this risk; and

(c) whether there are any less restrictive means of managing the offender’s risk other than making a high-risk offender order.

(4) The Director of Public Prosecutions should have the onus of proving the test.

(6) The court should be permitted, in hearing and determining an application in relation to a high-risk offender order, to have regard to:

whether the offender cooperated—or cooperated fully—in the preparation of any assessment report;
if the offender did not cooperate—or did not cooperate fully—in the report preparation, his or her reasons for this;
whether the report was made without a personal examination of the offender; and
anything else that it considers appropriate.

3.11 The Offender’s Right to be Heard

The Current Extended Supervision Scheme

The Right to be Present

3.11.1 The offender must be present at the hearing of an application for an ESO unless the offender acts in a way that makes the hearing in his or her presence impracticable, in which case the court has the power to order that the offender be removed and the hearing be continued in the offender’s absence. If the offender is unable to be present at a hearing because of illness or for any other reason, the court may proceed with the hearing in the offender’s absence if satisfied that doing so will not prejudice the offender’s interests, and that the interests of justice require that the hearing should proceed even in the offender’s absence.^[680]

Right to be Heard and to be Legally Represented

3.11.2 There is specific provision for an offender to be legally represented at the hearing of any applications under the scheme. A court may only begin to hear the application if satisfied that the offender has had a reasonable opportunity to obtain legal representation.^[681]

3.11.3 The scheme also includes an implied right to be heard. If an offender does not agree with an assessment report filed with the court or any other report or evidence given by a medical practitioner, the offender may file a notice of intention to dispute that report or evidence, in whole or in part. Once such a notice is filed, the offender can then lead evidence on the disputed matters and/or cross-examine the author of the report as to its contents.^[682]

The Right to Legal Assistance

3.11.4 In Queensland and New South Wales, Legal Aid organisations have developed policies for providing legal aid for respondents to applications under the schemes.^[683] In Victoria, Victoria Legal Aid is developing a guideline and set of fees for the extended supervision order scheme.^[684] It has been funding these matters over the past 12 months on an ad hoc basis, subject to a means test.^[685] Victoria Legal Aid (VLA) advises that:

VLA currently provides funding to offenders to oppose applications for extended supervision orders. These grants of assistance are means-tested but there is effectively no merits test—i.e. VLA presently adopts the view that all applications will ordinarily qualify. Funding covers preparation and attendance at application hearings and supporting experts’ reports. Details of the fees are set out at Tables P and Z of Chapter 6 of the VLA Handbook. ^[686]

Issues and Consultation

3.11.5 In submissions that addressed the issue, there was support for ensuring that a post-sentence scheme explicitly recognises the right to be heard, the right to legal representation, and the right to adequate legal assistance (including specialist advocacy) for offenders.^[687] VLA submitted that appropriate funding should be made available to it to provide this representation.^[688] VLA supported the inclusion of provisions giving the offender ‘the right to receive legal assistance in accordance with the Legal Aid Act 1978 (Vic) and the guidelines fixed by the Board of VLA’.^[689] In relation to the provision of funding for legal assistance, VLA submitted that:

funding for a continued detention order scheme should cover hearings, reviews, and psychiatric reports. We note that in these cases, it may be necessary to pay higher fees to engage experts with appropriate expertise. We suggest that there should be the same approach to means and merit—with appropriate fees to be fixed by the Board of VLA. We also suggest that appeals should also be funded if there are reasonable grounds for the appeal... VLA considers that it is appropriate for an offender who can afford the full cost of legal representation to pay for that representation privately. We are not persuaded that that there is sufficient justification for making an exception for continued detention order cases.^[690]

The Council’s View

3.11.6 The right to a fair hearing, including the right to be heard and to legal representation, are enshrined in the ICCPR and in the Victorian Human Rights Charter.^[691] Under the Victorian Charter, this right applies to people who have been charged with a criminal offence. Whether or not these Charter rights would also be relevant to a post-sentence scheme may depend on how such proceedings are construed. In Victoria and Western Australia, the relevant legislation designates post-sentence proceedings as criminal in nature.^[692] In contrast, the proceedings in New South Wales are civil in nature.^[693] It is arguable that given the serious consequences that can flow from an order for post-sentence supervision or detention, these Charter rights must be recognised.

3.11.7 The Council is of the firm view that the provisions governing the appearance of and representation for offenders under the current ESO scheme should be incorporated into a new HRO scheme. This is important both as a matter of fairness and taking into account the more serious consequences of an order that may permit continuing detention. In line with this, we recommend that the following protections should be included:
- The offender should have a right to be present at hearings unless he or she acts in a way that makes the hearing in the offender’s presence impracticable, in which case the court should have the power to order that the offender be removed and the hearing be continued in the offender’s absence.
- If an offender is unable to be present at a hearing because of illness or for any other reason, the court should be permitted to proceed with the hearing in the offender’s absence if satisfied that doing so will not prejudice the offender’s interests, and that the interests of justice require that the hearing should proceed even in the offender’s absence.
- The offender should be entitled to be legally represented at the hearing of any applications under the scheme and a court should only be permitted to begin to hear the application if satisfied that the offender has had a reasonable opportunity to obtain legal representation.
3.11.8 If the ESO scheme is reformed, rather than a new scheme introduced, the existing protections in the ESO scheme should be retained.
3.11.9 The Council also recommends that there should be express recognition of an offender’s right to receive funding for legal assistance, including funding for:
- all mandatory hearings under the scheme including applications for orders and the initial review;
- all applications by the Director of Public Prosecutions, for example an appeal or an application for a review of the order by the Director;
- psychiatric and other medical reports;
- appeals by the offender (where there are reasonable grounds for the appeal); and
- the offender’s applications for review (where there are reasonable grounds for the application).
3.11.10 If the extended supervision scheme is reformed without the establishment of an HRO Board, the Council has recommended that the court responsible for making the order should also set the conditions of the order. In these circumstances, the Council recommends that funding should also be provided for applications for review of the conditions of ESOs, where there are reasonable grounds for the application.
3.11.11 The Council endorses views that appropriate fees should be fixed by the Board of VLA and that the current approach to means and merit should be retained. Under this approach, once an offender meets the means test, all mandatory hearings under the scheme will meet the merits test.

Recommendation 18: Right to be Heard and to Legal Representation and Assistance

18—A Reformed Extended Supervision Scheme

(4) The offender should be entitled to legal assistance in accordance with the Legal Aid Act 1978 (Vic) and the guidelines fixed by the Board of Victoria Legal Aid including assistance for:

all mandatory hearings under the scheme, including applications for orders and the initial review;
all applications by the Director of Public Prosecutions, for example an appeal or an application for a review of the order by the Director;
the offender’s applications for review where there are reasonable grounds for the application;
appeals by the offender where there are reasonable grounds for the appeal; and
psychiatric and other medical reports.

18—B New High-Risk Offender Scheme

(4) The offender should be entitled to legal assistance in accordance with the Legal Aid Act 1978 (Vic) and the guidelines fixed by the Board of Victoria Legal Aid, including assistance for:

all mandatory hearings under the scheme, including applications for orders and the initial review;
all applications by the Director of Public Prosecutions, for example an appeal or an application for a review of the order;
the offender’s applications for review (including a review of the nature of the order) where there are reasonable grounds for the application;
appeals by the offender where there are reasonable grounds for the appeal; and
psychiatric and other medical reports.

3.12 The Role of Victims

Introduction

3.12.1 In the traditional adversarial system, a crime victim has no special status beyond his or her position as a potential witness for the prosecution.^[694] However, over the past decade or so, there has been a change in the status of victims, with the recognition and promotion of their rights and interests, including the development of rights charters and the provision of support services and benefits.^[695] Victims’ interests have also been recognised by the courts: for example in R v P,^[696] the Federal Court said:

There is no question that increasing public concern about the position of victims of crime in the criminal justice system has been accompanied by repeated instances of judicial recognition that loss or damage suffered by a victim is a factor to be taken into account in the sentencing process ... [T]hat reliable information of that nature should be presented is in the public interest, not only in the interest of the injured victim ... since a proper sentence should not be based on a misconception or ignorance of the salient facts.^[697]

3.12.2 The Victorian Parliament has now enshrined the rights of victims in a Victims’ Charter established by the Victims' Charter Act 2006 (Vic).^[698] The Victims’ Charter allows the Secretary to the Department of Justice to provide any person on the Victims Register with information pertaining to a relevant offender, such as the length of any sentence imposed, the likely date of release, and the making of an extended supervision order.^[699]

The Current Legal Framework

Extended Supervision Orders

3.12.3 Under the current ESO scheme, the Secretary to the Department may notify victims on the Victims Register of the making of an ESO.

3.12.4 The Victims’ Charter specifically recognises the right of a person included on the Victims Register to make a submission to the Adult Parole Board on the types of instructions and directions it may give to an offender who is subject to an extended supervision order.^[700] The Victorian extended supervision legislation makes similar provision for submissions.^[701] Before giving an offender any instruction or direction, the Adult Parole Board must consider any victim’s submission in relation to the matter; and may give that submission the weight that it sees fit in deciding whether to give an offender an instruction or direction.^[702]

3.12.5 Under the Victorian scheme, the Adult Parole Board must not give a victim’s submission to the offender unless doing so is in the interests of fairness and justice and the Board has asked the victim whether he or she:
- consents to the submission being provided to the offender;
- wishes to amend the submission so that it can be provided to the offender; or

• wishes to withdraw the submission.^[703]

3.12.6 If the victim does not comply with the Board’s request—for example, does not consent to the submission being provided to the offender, does not amend the submission so that the offender can be provided with a copy, and does not withdraw the submission—the Board must not release a copy to the offender but may reduce the weight it otherwise would have given the victim’s submission if the person who made the submission had complied with the request.^[704]

Other Jurisdictions

3.12.7 Under the Western Australian scheme, proceedings are taken to be criminal proceedings.^[705] Under section 42(4)(b), a court can receive in evidence anything relevant contained in ‘any report’ tendered in a proceeding against a person for a serious sexual offence. Arguably, this would allow the court to consider a victim impact statement that has already been tendered.^[706]

3.12.8 Under the New Zealand scheme, the victim is entitled to be advised of any hearing in relation to an extended supervision order.^[707] A victim may make a written submission to the court and, with the leave of the court, may appear and make oral submissions at the hearing as to whether an extended supervision order should be made.^[708] Victims must also be advised if the Parole Board imposes any special conditions on an order and must have the opportunity to make submissions in relation to the imposition of any such conditions.^[709]

Issues and Consultation

Introduction

3.12.9 In our consultation it was submitted that the rights of victims need to be acknowledged and protected in any continuing detention scheme.^[710] There are two aspects to victims’ rights under a post-sentence scheme: (1) the right to be notified of an application for a post-sentence order and (2) the degree to which the victim should have a right to make submissions in relation to the application.

The Right to be Notified

3.12.10 Those who addressed this issue in our consultations were generally supportive of notifying relevant victims who are on the Victims Register of the making of an application for a post-sentence order, as well as the outcome of any applications.^[711] The South Eastern Centre Against Sexual Assault, which supported this approach, pointed to the distress that a failure to notify victims about an offender can cause. The South Eastern CASA also expressed concern about the form of the notification:

Victims need to be informed of applications before the court, outcomes of applications and release of [an] offender in a timely and sensitive manner which is not simply a letter in the mail which may arrive and may be read. Contact needs to be verbal and preferably from someone with whom the victim has a relationship... Victims find reading about, running into and hearing about their offender distressing, especially if they have not been warned that there is going to be publicity or the person has been released. A number of SECASA clients have found out about their offenders’ situation on the front page of the Herald Sun without any warning from the authorities...It is important that victims are aware of processes that are taking place that relate to their offender otherwise they appear to feel disempowered and at risk .^[712]

3.12.11 The Centres Against Sexual Assault Forum also advocated face-to-face contact when notifying victims about applications, rather than letters. The Forum suggested that it could also be beneficial to victims to have a contact person to help them navigate their way through the system and understand how they can have input.^[713]

3.12.12 The Office of Public Prosecutions, while agreeing that victims should be notified of applications, pointed to the possible issues that might arise if a suppression order were made. The OPP suggested:

If victims who are on the Victims Register are entitled to be informed of the Court’s decision to grant an application for a High Risk Offender Order, then consideration should be given to how this interrelates with the provisions dealing with suppression of details which may identify the person subject to this order. Particularly if the legislation provides for mandatory suppression of identifying details, it might be appropriate for an offence to be created dealing with disclosure of the identifying details of an offender placed on a High-Risk Offender Order, and victims should be warned that such disclosure may constitute an offence.^[714]

The Right to Make Submissions

3.12.13 The purpose of post-sentence orders is relevant to the potential role of past victims. As offenders who are eligible for post-sentence orders have already been punished for the original offence, their further punishment is not an appropriate purpose of orders. Similarly, post-sentence orders cannot be used to re-sentence an offender based on a perception that the original sentence was insufficient.

3.12.14 In line with this, it could be argued that the role of past victims should be confined to ensuring that any conditions set are appropriate, and that the court should take into account any concerns they might have about their safety. Consistent with this approach, a community member in his submission suggested that ‘[i]f submissions from victims [are] allowed, they should be strictly limited to issues of that person’s safety’ and that the victim should have the onus of proof in relation to these matters.^[715] This submission expressed concerns that the process for making post-sentence orders should be objective, and the purpose of hearings not viewed as ‘a therapy process for victims’.^[716]

3.12.15 Some submissions took this even further, suggesting that there should be no role for victims in relation to setting conditions under post-sentence orders.^[717] The Mental Health Legal Centre (MHLC) expressed concerns that similar provisions under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) requiring courts to take into consideration the views of victims and their families had sometimes resulted in courts introducing ‘onerous and unnecessary conditions’ in order to ‘appease’ them. The MHLC saw a danger of the same thing occurring in relation to continuing detention.^[718]

3.12.16 However, a number of submissions supported a role for victims in the application process. Submissions that addressed the issue generally focused on the right of victims to make submissions about the conditions of a post-sentence order (particularly in relation to accommodation), rather than on the decision to make the order in the first place.^[719] Victoria Police supported protecting the same rights that are protected under the current Victorian ESO scheme. The Centres Against Sexual Assault Forum suggested ‘it is essential that victims be given the opportunity to make a submission to any application hearings’. CASA Forum added that:

While it has been suggested that there is little effect on sentencing outcomes when victim impact statements have been taken into account, the overall therapeutic value in being able to tell their story cannot be underestimated. Victim empathy is an important aspect of treatment work with offenders and with often very little opportunity for them to be confronted with harm they have caused; this would create an avenue for this.^[720]

3.12.17 The South Eastern Centre Against Sexual Assault submitted that:

The crime that impacted on the victim has been dealt with. Post-sentence detention is about the probability of future criminal activity. A statement should be tendered about the conditions the offender should be placed under such as not living in the same suburb as the victim ... Whilst victims generally find it therapeutic to tell their story this should have been possible at the original sentencing and in any therapy they have undertaken. There is also the possibility of additional trauma by having to retell a story. However, it is important that victims are aware of processes that are taking place that relate to their offender otherwise they appear to feel disempowered and at risk. ... Victims should be aware of the application and there must be a process to enable their views about where in relation to the victim’s residence the offender should be housed. Victims for obvious reasons, find it confronting to be residing in the same neighbourhood as an offender and running the risk of meeting them in the supermarket or milk bar.^[721]

3.12.18 In contrast, the Office of Public Prosecutions envisaged a broader role for victims:

If a new post-sentence scheme is introduced victims of crime who are on the Victims Register ... should be entitled to make a written submission to the court as to their views concerning the offender being made subject to an order, and any conditions which may form part of that order. Similar provisions to those presently contained in the Serious Sex Offenders Monitoring Act 2005 ought to be included, dealing with the circumstances in which victim submissions can be released to the offender.^[722]

The Council’s View

The Right to be Notified

3.12.19 The Council believes that the DPP should be required to make all reasonable efforts to notify victims on the Victims Register of an application, and the outcome of the application, for an HRO order, (or reformed ESO order). This is different from the current scheme in two respects.
3.12.20 First, in contrast to the current ESO legislation, which provides that the Secretary to the Department may notify victims, the Council recommends that the DPP must notify victims on the Victims Register.
3.12.21 Secondly, victims are currently notified when an ESO has been made. Our recommendation would see them involved at an earlier stage in the process. We recommend that victims on the Victims Register be notified of an application for an order, as well as the outcome of any application. This would provide victims with sufficient time to decide whether or not to make a submission to either the HRO Board or the court concerning the conditions of the order.
3.12.22 We also recommend that a process should be put in place to advise victims about any information in a case that has been suppressed and clearly explain to them the consequences of disclosing such information. The Council’s recommendations in relation to suppression orders are set out in Section 3.22 of this Report.

The Right to Make a Submission

3.12.23 The Council believes that a person included on the Victims Register should have the right to make a submission about the types of conditions that may be given to an offender who is subject to a post-sentence order. We believe that the body responsible for setting conditions should be required to consider a victim’s submission, but retain full discretion as to the weight it accords such a submission in deciding whether to give an offender an instruction or direction.
3.12.24 The Council is also of the view that—as in the current ESO scheme—a victim’s submission must not be provided to the offender unless doing so is in the interests of fairness and justice and the victim has been asked whether he or she:
- consents to the submission being provided to the offender;
- wishes to amend the submission so that it can be provided to the offender; or
- wishes to withdraw the submission.
3.12.25 If the victim does not comply with the request—for example, does not agree to the submission being provided to the offender, does not amend the submission so that the offender can be provided with a copy, or does not withdraw the submission—the Council recommends that a copy should not be released to the offender. However, in this case the body responsible for setting conditions should be permitted to reduce the weight it otherwise would have given the victim’s submission if the person who made the submission had complied with that request.

Recommendation 19: Role of Victims

19—A Reformed Extended Supervision Scheme

consents to the submission being provided to the offender;
wishes to amend the submission so that it can be provided to the offender; or
wishes to withdraw the submission.

If the victim does not agree, the Adult Parole Board must not release a copy to the offender but may reduce the weight it otherwise would have given the victim’s submission.

19—B New High-Risk Offender Scheme

consents to the submission being provided to the offender;
wishes to amend the submission so that it can be provided to the offender; or
wishes to withdraw the submission.

If the victim does not agree, the Board must not release a copy to the offender but may reduce the weight it otherwise would have given the victim’s submission.

3.13 Interim Orders

The Current Legal Framework

Victorian Extended Supervision Scheme

3.13.1 Provided that an application for an ESO is made while an offender is serving a relevant sentence, the court may continue the application even if that sentence has expired prior to the final hearing date.^[723] An offender who has finished his or her sentence is served with a notice to attend the hearing. The court may issue an arrest warrant for the offender if, for example, it is thought that the offender is unlikely to attend the hearing.^[724] There is no power to supervise the offender during the period between the completion of the sentence and the final hearing date, for instance by making an interim supervision order.

Other Australian Post-Sentence Schemes

3.13.2 In contrast, the other Australian schemes allow courts to make an interim supervision or continuing detention order.

3.13.3 Table 5 in Appendix 1 compares the power under these schemes to make interim orders pending the final hearing of the application. Under the Queensland and New South Wales legislation, if the court forms the view that the final hearing may occur after the offender’s sentence has expired, the court may make an interim extended supervision order or an interim continuing d[725]ntion order.⁷²⁵ In Western Australia, there is no power to make an interim supervision order, only to detain an offender in custody until the[726]nal hearing.⁷²⁶ In New South Wales, an interim order can be made for a period of up to 28 days after the date the offender’s sentence is due to expire. The interim order can be renewed but the total period of the order must not excee[727]hree months.⁷²⁷

3.13.4 In both Queensland and Western Australia, the legislation permits an offender to tender evidence at preliminary hearings, including in relation to applications for interim orders.^[728] In contrast, as noted in Attorney-General (NSW) v Gallagher,^[729] the New South Wales scheme does not allow evidence tendered by the Attorney-General in support of an interim order to be challenged, or for the offender to lead any evidence.

3.13.5 The Discussion Paper noted a number of issues in relation to interim orders in Victoria and the other relevant Australian jurisdictions, which the Council took into account in developing its discussion model.^[730]

Issues and Consultation

3.13.6 Although there is power under the Victorian scheme to compel an offender whose sentence has expired to attend the final hearing of the application for an extended supervision order, there is no power to supervise the offender during the period between the completion of his or her sentence and the final hearing date.
3.13.7 The Council’s discussion model included provision for interim orders to be made pending the final determination of an application for a post-sentence order, or by the Court of Appeal on hearing an appeal and quashing a decision concerning the making of an order and remitting it back for rehearing to the court that made the original decision. It was proposed to allow the court to compel an offender to attend any hearings to take place after his or her release, and also to place an offender on an interim high-risk offender order. It suggested that the offender should be permitted to tender evidence and to challenge evidence tendered by the DPP in support of an application for an interim order.

3.13.8 Some of those whom we consulted supported the power to make an interim order.^[731] There was also support for the court’s ability to renew such orders.^[732] The Office of Public Prosecutions supported the Court of Appeal also having the power to make interim orders.^[733]

3.13.9 Others were opposed to providing the ability to apply for interim orders, on the basis that applications should be made well in advance of an offender’s sentence expiring. For example, a member of the community who opposed the availability of interim orders suggested that providing for interim orders would be ‘punishing someone for administrative inefficiency or laziness’.^[734] He submitted:

If there is a desire to take away someone’s liberty then the State should be responsible for ensuring the process has commenced in time to complete the process before the completion of the person’s sentence.^[735]

The Council’s View

3.13.10 The Council believes that the power to make interim order is a necessary component of a post-sentence scheme. Interim orders will allow an offender to be supervised or detained in the following circumstances:
- the hearing of an application is unlikely to be finalised before the expiry of an offender’s sentence;
- on an appeal, the Court of Appeal decides to quash a decision concerning the making of an order and to remit the matter back to the original court that heard the application for rehearing;
- under a new HRO scheme, on breach of a supervision HRO order, where the court determines it appropriate to detain the offender under a detention and supervision HRO order until the breach matter is finally determined.
3.13.11 The power to make an interim detention and supervision HRO order on breach of a supervision HRO order may be particularly important if offenders on post-sentence orders are housed separately from the general prison population; in these circumstances, there may be good reasons for preferring the offender’s detention in HRO detention facilities over the detention of the offender in a remand centre or police watchhouse.
3.13.12 The Council suggests that while there should be a power to make an interim order in cases where an offender’s sentence is due to expire, this power should be exercised rarely. This is because in most cases an application would be made prior to an offender’s earliest release date (usually the end of the non-parole period). While we advocate a move away from applications being made at a late stage in the offender’s sentence, we consider that it would be useful to allow for interim orders, to cater for unexpected or urgent situations, and where it is in the interests of justice to grant such an order. In deciding whether or not to grant an interim order, we recommend that the court should be required to take into account the reasons why the application was not finalised before the expiry of the offender’s sentence. In the context of a new HRO scheme, there should also be a presumption that the offender is to be managed in the community on an interim supervision HRO order, rather than being detained.
3.13.13 The Council has also reached the view that, as in New South Wales, there should be strict time limits on the length of interim orders. The maximum length of an interim order should be 28 days. The Council recommends that there should be a capacity to renew interim orders, but, as in New South Wales, the total cumulative period should not exceed three months.
3.13.14 The offender should have the right to challenge evidence tendered in an application for an interim order and the right to lead evidence in such applications, consistent with the Queensland and Western Australian schemes.
3.13.15 The Council considers that the use of interim orders should be closely monitored and details included in the annual reports required under the scheme. Similarly, the proportion of cases in which an interim order was made should be considered in any evaluation of the scheme.

Recommendation 20: Interim Orders

20—A Reformed Extended Supervision Scheme

(3) The court should be permitted to make an interim extended supervision order if satisfied that:

the offender’s sentence or existing extended supervision order will expire before the proceedings are determined;
the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order; and
it is in the interests of justice to do so, taking into account the reasons why the application was not finalised before the expiry of the offender’s sentence or existing extended supervision order.

(4) The Court of Appeal should also be permitted to make an interim order if satisfied that:

it is appropriate to quash an existing order concerning the making of an extended supervision order, and to remit the matter back to the original court for rehearing; and
the offender is no longer under sentence, or the offender’s sentence or existing extended supervision order will expire before the proceedings are determined.

(5) The maximum length of an interim order should be 28 days. The interim order should be renewable but the total cumulative period should not exceed three months.

(6) In an application for an interim order, the offender should be permitted to tender evidence and challenge evidence tendered by the applicant in support of the application.

20—B New High-Risk Offender Scheme

(3) The court should be permitted to make an interim high-risk offender order if satisfied that:

the offender’s sentence or existing high-risk offender order will expire before the proceedings are determined;
the matters alleged in the supporting documentation would, if proved, justify the making of an high-risk offender order; and
it is in the interests of justice to do so, taking into account the reasons why the application was not finalised before the expiry of the offender’s sentence or existing high-risk offender order.

(4) The Court of Appeal should also be permitted to make an interim order if satisfied that:

it is appropriate to quash an existing order concerning the making of a high-risk offender order, and to remit the matter back to the original court for rehearing; and
the offender is no longer under sentence, or the offender’s sentence or existing high-risk offender order will expire before the proceedings are determined.

(5) Before making an interim detention and supervision high-risk offender order, the court must be satisfied that adequate supervision of the offender could not be provided by supervision alone.

(6) The maximum length of an interim order should be 28 days. The interim order should be renewable but the total cumulative period should not exceed three months.

(7) In an application for an interim order, the offender should be permitted to tender evidence and challenge evidence tendered by the applicant in support of the application.

3.14 Directions Hearings

The Current Legal Framework

3.14.1 Under the Victorian extended supervision scheme, the court may set a date for a directions hearing to be conducted in relation to applications under the scheme (including applications for orders and review and renewal of orders).^[736] The scheme also gives the court ancillary powers, such as the power to adjourn hearings under the scheme.^[737]

3.14.2 Schemes in other jurisdictions provide for a preliminary hearing with a threshold test which, if made out, results in an order for a risk assessment. In Queensland, Western Australia and New South Wales, once an application is filed a date is set for a preliminary hearing. In New South Wales, the preliminary hearing must be within 28 business days of the application being filed or on such further date as the court may allow.^[738] In Queensland and Western Australia the preliminary hearing must be within 14 days of the application being filed.^[739]

3.14.3 In Queensland and Western Australia the purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the prisoner is a serious danger to the community in the absence of an order for supervision or continuing detention.^[740] Under both schemes, if the court is satisfied that there are reasonable grounds for this belief it must set a final hearing date to determine the application and may order the offender to undergo examinations by two psychiatrists whom the court has nominated to prepare independent reports. Such an order is referred to as a ‘risk assessment order’.^[741]

Issues and Consultation

3.14.4 The discussion model made provision for a preliminary hearing, consistent with the other Australian schemes. The model proposed that if a threshold test is passed at the preliminary hearing, the court may order a risk assessment and set the matter down for a final hearing. The Office of Public Prosecutions supported this aspect of the discussion model.^[742]

3.14.5 However, as the Council’s final proposal provides for the risk assessment to be carried out prior to the application being made, it may not be necessary to include a formal preliminary hearing with a threshold test in the scheme.

3.14.6 Victoria Police advocated ‘the ability of the scheme to provide for a flexible approach’ which ‘may require preliminary hearings in some instances’ but not as ‘a mandatory part of the process’.^[743]

The Council’s View

3.14.7 The Council prefers the current approach under the Victorian extended supervision scheme, which allows the court to set a date for a directions hearing to be conducted in relation to the hearing of the application but does not include it as a mandatory part of the process.
3.14.8 The Council is also of the view that other ancillary powers set out in the Serious Sex Offenders Monitoring Act 2005 (Vic), such as the power to adjourn proceedings under section 32, should be retained if the extended supervision scheme is reformed or incorporated into a new high-risk offender scheme.

Recommendation 21: Directions Hearings

21—A Reformed Extended Supervision Scheme

to such times and places;
for such purposes; and
on such terms as to costs or otherwise—
as it considers necessary or just in the circumstances.

21—B New High-Risk Offender Scheme

to such times and places;
for such purposes; and
on such terms as to costs or otherwise—

as it considers necessary or just in the circumstances.

3.15 Who Should Make the Order?

The Current Legal Framework

3.15.1 Under the Victorian extended supervision order scheme, applications are made to the court that sentenced the offender for the relevant offence (if that court was the County Court or Supreme Court) or to the County Court (if the Magistrates’ Court sentenced the offender for the relevant offence).^[744] In the post-sentence schemes in other Australian jurisdictions, applications for extended supervision and continuing detention orders can only be made in the Supreme Court.

3.15.2 Applications under all Australian schemes are determined by a single judge.

Issues and Consultation

What Forum?

3.15.3 Under the discussion model, it was proposed that both the County Court and the Supreme Court should be permitted to hear applications for post-sentence orders, as is currently the case under the extended supervision order scheme.
3.15.4 In consultations, some expressed the view that the nature of these orders requires that they should only be imposed by a court. Others believed that a court was not the appropriate forum for these orders and that a form of expert panel would be preferable.

3.15.5 Considering the serious consequence of post-sentence orders, several submissions argued that only the Supreme Court should be permitted to make decisions under a scheme.^[745] Victoria Legal Aid was of the view that:

Given continued detention may infringe on human rights ... the Supreme Court should decide these applications. Under section 36 [of the] Charter of Human Rights and Responsibilities Act 2006, only the Supreme Court has the power to declare that a provision infringes human rights.^[746]

3.15.6 This view was supported in the submission of the Supreme Court of Victoria itself:

Because of the extraordinary nature of such applications, they should be required to be made to the Supreme Court. Vesting jurisdiction exclusively in the Supreme Court would be consonant with other extraordinary measures such as those introduced under terrorism prevention and major crime legislation.^[747]

3.15.7 The Law Institute of Victoria submitted that if the offence which triggered the offender’s eligibility for a post-sentence order was generally tried in the County Court, then the judges of this court would have more experience in dealing with such offences and offenders. On this basis the County Court could be viewed as equally or perhaps better equipped to carry out this role.^[748] The South Eastern Centre Against Sexual Assault submission supported this view and noted that providing a role for the County Court in determining these applications, rather than just the Supreme Court, would be cheaper and therefore would improve access to justice.^[749]

3.15.8 Some submissions supported a separate body—such as an expert or community panel—having responsibility for determining such issues. For example, the Mental Health Legal Centre submitted that courts may not be best placed to determine these applications, as they may not understand the particular issues involved in relation to the rehabilitation of offenders. It was suggested that this could be rectified if the decision-maker could seek assistance from others in making the determination, including experts, independent clinicians and community representatives.^[750]

3.15.9 In a similar fashion, the Crimes Victims’ Support Association suggested that the application could be determined by:

[a] board of eminent people made up of a judge, people with legal and practical experience with criminals and victims of crime ... or alternatively three judges and nine people picked from the jury pool to make the decision.^[751]

3.15.10 The Criminal Bar Association envisaged a system under which offenders could be detained post-sentence in an appropriate medical facility for the purposes of treatment. Under this model, a body could be established to determine applications, made up of medical and behavioural experts.^[752]

Single Judge or Jury?

3.15.11 Under the discussion model, it was proposed that applications should be determined by a judge acting alone.

3.15.12 Some individuals and organisations expressed support for the involvement of a jury in making decisions under a post-sentence scheme.^[753] Under the civil commitment schemes for sex offenders introduced by many states in the United States, juries are involved in making the determination as to whether an offender is a ‘sexually violent predator’. For example, in Massachusetts, a jury must be satisfied beyond reasonable doubt that:

the offender has been convicted of a ‘sexual offence’;
that he [or she] suffers from a mental abnormality or personality disorder; and

• that the mental abnormality or personality disorder makes him [or her] likely to engage in further sexual offences if not confined to a secure facility.^[754]

3.15.13 The inclusion of the jury in the decision-making process would allow for more community involvement in determining the acceptability of risk presented by an offender. As Chief Justice Gleeson of the High Court recently suggested, one of the benefits of involving juries in the legal system generally is that it ‘contribute[s] to a culture in which the administration of justice is not left to a professional cadre but is understood as a shared community responsibility’.^[755] It could be argued that the determination as to whether offenders should be supervised or detained after their sentence for the protection of the community is more appropriately made by community members.

3.15.14 Because decisions about whether an order should be made are based on the acceptability or unacceptability of risk, it also could be viewed as appropriate to involve community members more actively in making these decisions; this is because juries may ‘have a better idea that either judges or psychiatrists of the community standards which govern fear and the acceptability of risk’.^[756]

3.15.15 However, while there was some support for this position, others specifically opposed involving a jury in this process, for reasons including the concern that it would lead to a less transparent process.^[757] While judges are required to provide reasons for their decisions, juries are not, potentially detracting from the openness and fairness of the scheme. Transparency and the provision of reasons for decisions were both emphasised by the majority of the High Court in Fardon in upholding the validity of the Queensland scheme.^[758]

3.15.16 Another issue raised by involving juries is whether their decisions would need to be unanimous.^[759] A requirement for unanimous decisions may lead to delay and increased costs in cases where the jury is unable to reach agreement.

3.15.17 The scope of the jury’s role would also need to be determined—for example, whether its role should be simply to establish that the legal test has been satisfied, leaving the court to decide whether to make an order and what type of conditions should be set, or whether it should have a broader role. The Law Institute of Victoria suggested that a jury could have a limited role in the process of determining whether the legal test has been met.^[760] Under this approach, the court would retain the discretion to make the order or not, and to determine the nature of the order (i.e. whether the offender should be detained or supervised in the community).^[761]

3.15.18 An alternative suggestion was to allow the offender decide whether a judge or a jury should determine whether the threshold test has been met.^[762] The Supreme Court of Victoria was among those who supported this option being given further consideration.^[763]

3.15.19 It could be argued that giving the offender the choice as to whether the application is to be heard before a judge or a jury would alleviate some of the concern about the transparency of the process, as the offender would be choosing a jury in the knowledge that reasons would not be provided. However, it does not address the question of whether the jury’s decision should be unanimous, or the consequences of a hung jury.

The Council’s View

3.15.20 As we have acknowledged throughout this Report, post-sentence orders are exceptional measures that have a real potential to contravene human rights. In the case of an offender subject to continuing detention, his or her right to liberty—one of the most fundamental of human rights—will be limited. Because such measures are based on predictions of future offending, rather than past wrongdoing, extreme caution must be taken in their use. As discussed earlier in this Report, predictions of risk when applied to individual offenders are far from reliable (see further Section 2.2).
3.15.21 Taking these concerns into account, the Council has come to the view that applications for post-sentence orders under an integrated HRO scheme should be determined by the highest court in Victoria—the Supreme Court—and the decision should be made by a judge alone, informed by assessment reports and other information relevant to assessing an offender’s risk, which has been provided to the court. We note that this is consistent with the approach taken in other Australian jurisdictions with continuing detention and extended supervision schemes.

3.15.22 We are conscious that the County Court has considerable experience and expertise in dealing with serious sexual offenders in particular. However, we believe that giving the Supreme Court sole responsibility for determining applications under the HRO legislation serves an important symbolic function by signalling the exceptional nature of these measures and appropriately recognises the potential for an offender to be made subject to ongoing detention. We note that the Charter of Human Rights and Responsibilities also acknowledges the particular expertise of the Supreme Court in considering human rights issues by giving it the authority to finally determine issues of legislative compatibility with the Charter.^[764]

3.15.23 The Council initially considered the option of providing the jury with a role in these proceedings, for reasons including increased community involvement and confidence in the making of these orders. However, we were concerned that a court’s reasons for making an order should be open to review and that the process should be as transparent as possible. For these reasons we decided that matters relevant to the making of an order should be determined by a judge.

3.15.24 In making this recommendation, the Council is conscious that the workload of the Supreme Court may increase, including the time involved in hearing applications and review hearings. In its submission the Supreme Court of Victoria suggested that ‘[t]he potential long-term nature of these orders and the Court’s involvement will require additional resources both in terms of Judges and judicial support’.^[765] We have recommended that the possible resource implications for the court and for other agencies, such as the Office of Public Prosecutions and Victoria Legal Aid, should be reviewed prior to the new scheme coming into operation (see further Recommendation 3).

3.15.25 Should the existing extended supervision order scheme be reformed rather than replaced, the Council recommends that the County Court should continue to have a role in determining applications. Consistent with the current legislation, where the original sentence has been imposed in the Magistrates’ Court, the Council believes that the application should be heard in the County Court. While the consequences following from the making of an extended supervision order are serious, the fact that these orders do not contemplate the detention of the offender in our view justifies a distinction being made between this process and the process for applying for an order that may include the possibility of detention.

Recommendation 22: Who should make the order?

22—A Reformed Extended Supervision Scheme

(2) The application should be determined by a single judge of that court.

22—B New High-Risk Offender Scheme

(1) Only the Supreme Court should be empowered to hear and determine applications for high-risk offender orders.

(2) Applications should be determined by a single judge of the Supreme Court.

3.16 Who Sets Conditions?

The Current Legal Framework

Extended Supervision Orders

3.16.1 Under the Victorian ESO scheme, the core conditions of an extended supervision order are that the offender must:^[766]

not commit, whether in or outside Victoria, another relevant offence or an offence that, if committed in Victoria, would be a relevant offence;
attend at any place as directed by the Secretary to the Department of Justice or the Adult Parole Board for the purpose of supervision, assessment or monitoring;
report to, and receive visits from, the Secretary, or any person nominated by the Secretary for the purposes of this paragraph;
notify the Secretary of any change of name or employment at least two clear working days before the change;
not move to a new address without the prior written consent of the Secretary; and

• not leave Victoria except with the permission of the Secretary, granted either generally or in relation to the particular case.^[767]

3.16.2 Extended supervision orders also require the offender to comply with any lawful instructions given by the Secretary and by the Adult Parole Board.^[768] The Secretary and the Adult Parole Board may give the offender any instruction or direction considered necessary, in the case of the Secretary, ‘to ensure the effective and efficient implementation and administration of the conditions’, and in that of the Adult Parole Board, ‘to achieve the purposes of the conditions of the order’.^[769] The Secretary and Adult Parole Board may vary the instructions or directions at any time but must give the offender written notice as soon as practicable after any variation.^[770]

3.16.3 The conditions that can be imposed on an offender under an ESO can be onerous. In TSL v Secretary to the Department of Justice,^[771] the Court of Appeal described the term ‘monitoring’ in the Victorian Act as an ‘understatement of the restrictions imposed on a person subject to an extended supervision order’.^[772]

Other Australian Post-Sentence Schemes

3.16.4 In contrast to Victoria, the legislation governing the Queensland, Western Australian and New South Wales continuing detention and extended supervision schemes sets out the core conditions of the orders but leaves the setting of all other conditions to the court.
3.16.5 The core conditions of extended supervision orders, and interim supervision orders in Queensland and Western Australia, are that the offender:
- report to a corrective services officer and advise the officer of the offender’s current name and address;
- report to, and receive visits from, a corrective services officer as directed by the court;
- notify a corrective services officer of every change of name, address or place of employment at least two business days prior to the change;
- be under the supervision of a corrective services officer;
- not leave or stay out of the state (Queensland or Western Australia respectively), without the permission of a corrective services officer; and

• not commit an offence of a sexual nature during the period of the order.^[773]

3.16.6 The extended supervision order may also contain any other terms that the court considers appropriate to ensure adequate protection of the community or for the prisoner’s rehabilitation, care or treatment.^[774] Unlike the Victorian scheme, the court has sole responsibility for setting these conditions.

3.16.7 Similarly, in New South Wales the conditions of extended supervision orders are set by the court. The court may make any condition that it considers appropriate, including conditions requiring the offender:
- to accept home visits by a corrective services officer;
- to report to a corrective services officer;
- to notify a corrective services officer of any change in address;
- to participate in treatment and rehabilitation programs;
- to wear electronic monitoring equipment;
- not to live in specific locations or types of locations (for example, close to schools);
- not to associate or make contact with particular people or types of people (for example, other sex offenders or victims of previous offences);
- not to engage in certain behaviour or types of behaviour;
- not to engage in certain employment or types of employment (for example, employment or voluntary work that may involve contact with children); and/or

• not to change his or her name.^[775]

3.16.8 Because the court sets the conditions of the order, it also has the power to vary the conditions.^[776] The Attorney-General is also permitted, in applying for an extended supervision order or continuing detention order, to indicate the kinds of conditions considered appropriate to be included if an extended supervision order is made.^[777]

Issues and Consultation

Current Extended Supervision Scheme

3.16.9 Under the existing extended supervision scheme, an offender can be made subject to conditions or instructions from three separate sources.^[778] It has been suggested that this can lead to confusion on the offender’s part as to which conditions are in place at a given time.^[779] One of the possible advantages of the Queensland, Western Australian and New South Wales schemes is that all conditions are set by the Supreme Court. Therefore if the court decides that an extended supervision order is more appropriate than continuing detention, the court can ensure that the conditions in the order are consistent with its reasons for choosing that option.^[780]

3.16.10 Under the Victorian legislation, although the Supreme or County Court is responsible for making an extended supervision order, there is no power for the order to be returned to the court, once the Secretary or Adult Parole Board has given directions or made conditions, so that the court can review whether these conditions are consistent with its reasons for making the order. Further, on an appeal, the Court of Appeal has no power to return the order to the lower court or the Adult Parole Board to vary conditions; nor can the Court of Appeal substitute the conditions it believes to be appropriate. The Court of Appeal only has the power to confirm or revoke the order. If the order is revoked, there is no power to apply for a new order if the offender’s sentence has ended.^[781] These issues are addressed in Section 3.20.

The Discussion Model

3.16.11 The discussion model presented three options for the setting of conditions:
- Option A—the court sets all conditions (informed by risk assessment and a draft offender management plan supplied by the proposed High-Risk Offenders Panel);
- Option B—the court makes the determination as to whether the offender is to be detained in custody or subject to conditions in the community, with all other conditions set by the HRO Panel;
- Option C—The HRO Panel sets all conditions (including whether the offender is detained in custody or released into the community).
3.16.12 In the Discussion Paper the Council suggested that Option B might achieve the best outcome—allowing the court to have some control over whether the offender is detained or supervised in the community, while avoiding the need for the court to be involved in the micromanagement of the offender.

Responses to the Discussion Model

3.16.13 The options in the discussion model prompted a range of responses.

3.16.14 Some supported an approach that would allow the body responsible for managing the offender (the High-Risk Offenders Board under our revised model) to set all the conditions of the order, including whether the offender is detained or supervised in the community.^[782] One of the possible benefits of this approach is that conditions would be set by a body with expertise in managing this group of offenders and with practical experience of what conditions may be necessary to enhance community protection. Assigning full responsibility to this body to set conditions would also avoid the need to apply to a court to have conditions reviewed or varied. This may reduce some of the costs of the scheme and may also allow conditions to be managed flexibly and responsively.

3.16.15 However, assigning a body such as the Adult Parole Board (or the proposed HRO Board) full control over an offender post-sentence, including whether he or she is detained or released under supervision, could be viewed as giving too much power to an administrative body. A similar argument has been raised in Canada, where it has been argued that ‘giving the Parole Board the sole power to determine the conditions of supervision [of long-term offender orders] is an unconstitutional assignment of a judicial function to the executive arm of government’.^[783]

3.16.16 A number of submissions supported the court setting all core conditions, with the HRO Board being permitted to make recommendations to the court as to the conditions of the order.^[784] Victoria Police, which supported this option, suggested that the need to return to court to alter conditions every time there is a change in the offender’s circumstances could be avoided by making the conditions sufficiently flexible to accommodate changes. It suggested:

An example of this may be that the Court thinks a residential condition needs to be set. It may be that a specific address is required by the court but they may also be able to set a condition that requires the subject to reside at an address nominated by Corrections Victoria.^[785]

3.16.17 Others argued that at the very least the court should be responsible for deciding whether an offender is managed in custody or in the community.^[786] The Supreme Court of Victoria, reflecting the views of many, suggested that whether the offender is to be detained in custody or supervised in the community ‘is a fundamental issue which should not be left to an administrative body’.^[787] Similarly, the Law Institute of Victoria argued:

the Court should set the parameters of any order and should determine whether an offender is to be detained in custody or supervised in the community. This would avoid the situation as happened in the case of Fletcher v Secretary to the Department of Justice where the conditions imposed by the Adult Parole Board (requiring the offender to live in the grounds of Ararat Prison) undermined the intention of the Court in making the extended supervision order (for the offender to be supervised in the community) ... the legislation should provide that detention in custody is a last resort and that full consideration should be given to the possibility of release into the community. Detaining people within a prison environment should not be an option only because suitable accommodation outside a prison cannot be found.^[788]

3.16.18 The Law Institute suggested that subject to the above issues being addressed, it may be appropriate for the management body (the HRO Board) to set the other conditions of the order.

The Council’s View

The New High-Risk Offender Scheme

3.16.19 The Council initially considered the possibility of the HRO Board setting all the conditions of the order, including determining whether the offender should be detained or supervised in the community. However, in view of concerns expressed during consultations and in submissions about the significance of depriving a person of his or her liberty, we have ultimately concluded that the court, rather than the Board, should make the decision as to whether the offender should be subject to supervision in the community only, or to detention and supervision.
3.16.20 Under the Council’s recommendations, prior to the expiry of the offender’s sentence, a court review would be required, at which time the court would decide whether to place the offender on:
- a supervision HRO order; or
- a detention and supervision HRO order.
3.16.21 As discussed above in Section 3.10, the court would have to first rule out the option of a supervision HRO order, before opting for a detention and supervision HRO order.
3.16.22 A supervision HRO order would be similar to extended supervision orders available in other Australian jurisdictions. The offender’s risk would be managed in the community, and the possibility of continuing detention would not be open. A detention and supervision HRO order would be the Victorian equivalent of a continuing detention order; however, unlike orders in other states, this form of order would allow an offender to be detained or supervised in the community, depending on the least restrictive means of managing his or her risk to meet the purpose of community protection.
3.16.23 Where the Supreme Court decided that a detention and supervision HRO order was necessary to manage the offender’s risk, the HRO Board would take over responsibility for administering and managing the order. This would include deciding whether the offender should be detained for the whole period, or whether some supervised release should be allowed. In our view, this will enhance the flexibility of an order that in other jurisdictions is limited to detention in custody, and will allow for greater compliance with the principle that the least restrictive alternative should be used to meet the purpose of community protection. Our reasons for recommending this approach are explored further in Section 3.2 of this Report.
3.16.24 The Council recommends that the core conditions and non-core conditions of supervision should be as currently set out under the Serious Sex Offenders Monitoring Act 2005 (Vic), with the HRO Board taking over the responsibilities of issuing instructions and directions that are currently given to the Secretary to the Department of Justice and the Adult Parole Board. In a similar way to the current ESO scheme, the core conditions would be prescribed in the legislation while non-core conditions would be set by the HRO Board. In our view one of the benefits of this approach will be to ensure that conditions are set by a body with expertise in managing this group of offenders, and will allow the Board to respond quickly to changes in an offender’s circumstances.

A Reformed Extended Supervision Scheme

3.16.25 If the existing extended supervision scheme is reformed, rather than replaced, and an HRO Board is established, the Council recommends that as for an integrated HRO scheme, conditions should be set by the HRO Board.
3.16.26 Alternatively, if an HRO Board is not established, we suggest that the court making the order should be responsible for setting all the conditions of the extended supervision order, as is the case in other jurisdictions with continuing detention and extended supervision schemes. Corrections Victoria would then be required to manage the offender consistently with the terms of the ESO. Such an approach does not mean that the court will be required to micromanage offenders or that it cannot delegate some of the responsibility for setting out the details of conditions to Corrections. For example, the court can order that the offender must attend treatment as directed by Corrections. We note that this is an approach that has been adopted in sentencing contexts, for example in relation to the setting of conditions under community-based orders.
3.16.27 Examples of the types of conditions that have been set in Queensland include that the offender:
- live at a place within the State of Queensland approved by a corrective services officer, which must not be within 200 metres of a school or some other place frequented by children unless authorised in writing by the corrective services officer in order to provide temporary accommodation;
- not join, affiliate with, attend on the premises of or attend at the activities carried on by any clubs or organisations in respect of which there are reasonable grounds for believing there is either child membership or child participation;
- notify the corrective services officer of the make, model, colour and registration number of any car owned by or generally driven by the offender;
- not have any supervised or unsupervised care of children under 16 years;
- not have any unsupervised contact with children under 16 years, except with prior written approval; and

• not establish and maintain contact with children under 16 years of age.^[789]

3.16.28 Requiring the court to set conditions raises a number of other issues dealt with in other parts of this Report, including:
- the need for sufficient flexibility to allow breaches or changes in conditions to be dealt with quickly (see further Section 3.21);
- the way in which offenders who are placed on post-sentence orders should be managed (see further Section 3.7); and
- what power should be provided to vary conditions (see further Section 3.19).

Recommendation 23: Conditions of Orders

23—A Reformed Extended Supervision Scheme

(1) If a High-Risk Offenders Board is established, the core conditions of an extended supervision order should be prescribed in the legislation and should require the offender:

not to commit, whether in or outside Victoria, another relevant offence or an offence that, if committed in Victoria, would be a relevant offence;
to attend at any place as directed by the Board for the purpose of supervision, assessment or monitoring;
to report to, and receive visits from, the Board or any person nominated by the Board for the purposes of this paragraph;
to notify the Board of any change of name or employment at least two clear working days before the change;
not to move to a new address without the prior written consent of the Board;
not to leave Victoria except with the permission of the Board granted either generally or in relation to the particular case; and
to obey all lawful instructions and directions of the Board or any person nominated by the Board.

(2) If a High-Risk Offenders Board is not established, the core conditions of an extended supervision order should be prescribed in the legislation, and should require the offender:

not to commit, whether in or outside Victoria, another relevant offence or an offence that, if committed in Victoria, would be a relevant offence;
to attend at any place as directed by the Secretary for the purpose of supervision, assessment or monitoring;
to report to, and receive visits from, the Secretary or any person nominated by the Secretary for the purposes of this paragraph;
to notify the Secretary of any change of name or employment at least two clear working days before the change;
not to move to a new address without the prior written consent of the Secretary;
not to leave Victoria except with the permission of the Secretary granted either generally or in relation to the particular case; and
to obey all lawful instructions and directions of the Secretary or any person nominated by the Secretary.

(3) Additional conditions should be set by either the High-Risk Offenders Board if established, or alternatively, by the court making the order. These conditions should be the same as those instructions and directions currently set out under section 16(3) of the Serious Sex Offenders Monitoring Act 2005 (Vic).

23—B New High-Risk Offender Scheme

not commit, whether in or outside Victoria, another relevant offence or an offence that, if committed in Victoria, would be a relevant offence;
attend at any place as directed by the Board for the purpose of supervision, assessment or monitoring;
report to and receive visits from the Board or any person nominated by the Board for the purposes of this paragraph;
notify the Board of any change of name or employment at least two clear working days before the change;
not move to a new address without the prior written consent of the Board;
not leave Victoria except with the permission of the Board granted either generally or in relation to the particular case; and
obey all lawful instructions and directions of the Board or any person nominated by the Board.

3.17 Accommodation

Current Arrangements

Offenders on Extended Supervision Orders in Victoria

3.17.1 Although the Victorian scheme envisaged the post-sentence supervision of offenders in the community, in practice those administering the ESO legislation have faced significant difficulties finding appropriate accommodation for some offenders.^[790]

3.17.2 While accommodation conditions under the current ESO scheme are set by the Adult Parole Board, environmental scans are carried out to locate suitable properties where offenders might live, and these are authorised by the Secretary to the Department of Justice. Only a small number of properties submitted as potentially suitable to the Department following an initial scan have ultimately been confirmed as appropriate.^[791] As these are private rental properties, the offender must compete with other potential tenants for these properties.^[792]

3.17.3 Currently the majority of offenders subject to ‘supervision in the community’ under ESOs are living within the perimeter of, or within close proximity to, Ararat Prison.^[793]

3.17.4 The validity of the housing of offenders within the perimeter of the prison was challenged in Fletcher v The Secretary to the Department of Justice and Anor.^[794] Fletcher consented to the making of a five-year extended supervision order in May 2006. The Adult Parole Board gave a number of instructions and directions to Fletcher before the order came into operation, including that he ‘reside at the Extended Supervision Order Temporary Accommodation Unit in Ararat and not move from this address without prior written consent of the Secretary to the Department of Justice’.^[795]

3.17.5 From June 2006 until August 2006, Fletcher was housed at the Wimmera Unit Annexe, which forms part of the Ararat prison buildings. In early August 2006, he was transferred to a building on land that was previously part of Ararat prison, but had been degazetted by an Order in Council. This building is located inside the walls of the prison. Fletcher applied to the Supreme Court of Victoria for judicial review as to whether the Adult Parole Board had the power under the Act to give this type of direction.

3.17.6 Justice Gillard confirmed that the Adult Parole Board had the power under the Act to issue instructions or directions as to where Fletcher was to live;^[796] however, he found that the direction given to Fletcher requiring him to live within prison walls was contrary to the purposes of the Act:

The power given to the Board to include an instruction or direction as to where an offender may lawfully reside is not lawfully exercised by requiring him to reside in a place other than in the community ... to incarcerate a person inside prison walls, even though on land which is now degazetted as a prison, does not constitute a lawful exercise of the power. In those circumstances the person is not residing in the community.^[797]

3.17.7 In response to this decision, the Government passed the Serious Sex Offenders Monitoring (Amendment) Act 2006 (Vic), which came into effect in October 2006.^[798] The amendments allow the Adult Parole Board to give an instruction or direction requiring an offender to live on land which is situated within the perimeter of the prison, but which does not form part of the prison itself.^[799] The amendments make clear that a direction or instruction to that effect is to be considered as ‘releasing the offender into the community, to live in the community’.^[800] These changes apply to all extended supervision orders, regardless of when the order was made.^[801] As discussed in Section 2.3 of this Report, the effect of this change has been to blur the distinction between ‘supervision in the community’ and ‘detention’.

Offenders Subject to Continuing Detention

3.17.8 Under the Western Australian and Queensland schemes, offenders on continuing detention orders are housed in prison with the general prison population.^[802] No continuing detention orders have yet been made in New South Wales.^[803] Sex offenders subject to civil commitment in the US are detained in a variety of settings, including forensic mental health units, hospitals and secure facilities provided by correctional authorities.

Issues and Consultation

Setting Accommodation Conditions

3.17.9 Of central importance to a post-sentence supervision and detention scheme is providing suitable accommodation for offenders who are subject to orders. Many of those who participated in our consultations acknowledged that accommodation is a critical issue for any post-sentence scheme. For example, the Law Institute of Victoria observed that ‘finding suitable accommodation for offenders subject to either detention or supervision orders will be a significant challenge in implementing a scheme’.^[804]

3.17.10 The suitability of accommodation is, in part, determined by the purposes of the scheme. Where the main purpose of continuing detention is to protect the community, this goal can be achieved, at least in the short term, by removing the offender from contact with the public. However, if the purpose includes the care and treatment of high-risk offenders, there needs to be some consideration of where an offender should be housed in order to provide the environment most conducive to treatment, rehabilitation and reintegration into the community. A related issue is what body should be responsible for determining whether an offender is supervised in the community or detained (see further Section 3.16).

Offenders on Supervision Orders

3.17.11 Finding appropriate community-based accommodation for sex offenders has been a persistent challenge in Victoria and other jurisdictions. The overseas experience has been that measures introduced to safeguard the community from sex offenders (such as sex offender registers, community notification of the location of sex offenders, and the co-location of multiple sex offenders within group housing) have on occasion led to vigilantism on the part of neighbouring communities. These communities are concerned not only about the safety of their children, but also about the economic stability of the neighbourhood once it has developed a reputation for housing sex offenders.^[805]

3.17.12 Similar issues have arisen in Victoria; for example, concerns were expressed about a proposal to house sex offenders at Langi Kal Kal Prison.^[806] Vigilante conduct towards sex offenders has also been suspected on occasion,^[807] and there have been reports of innocent people in the community being mistaken for convicted sex offenders and harassed.^[808] Within this potentially volatile environment, community-based treatment programs may face severe challenges in their efforts to reduce recidivism and reintegrate offenders back into the community.

3.17.13 Some states in the US have imposed restrictions on where convicted sex offenders can be housed, which has resulted in some offenders going underground. For example, Iowa enacted a law prohibiting sex offenders from living within 2000 feet of a school or childcare centre. Before this law was introduced, authorities knew the whereabouts of 90 per cent of the offenders listed on the state sex offender register.^[809] Following the introduction of this restriction, the proportion dropped to just over 50 per cent.^[810]

3.17.14 While residence conditions are commonly imposed on sex offenders, there is scant evidence that the proximity of sex offenders’ residences to schools, childcare centres and other places frequented by children is in fact linked to risk of reoffending.^[811]

3.17.15 As discussed above, recent amendments to the Victorian legislation authorising the housing of offenders within the perimeter of a prison as part of their ‘community’ supervision have given rise to concerns about the effect of this arrangement on treatment outcomes. In particular, extended supervision orders are designed to help offenders reintegrate into the community. Supervising offenders within the walls of a prison may in fact impede their rehabilitation and be contrary to the original intention of the order. It also makes it extremely difficult to assess offenders’ potential for reintegration into the community and the efficacy of treatment programs. Similar challenges of finding appropriate accommodation have been faced in other jurisdictions with extended supervision schemes.^[812]

3.17.16 New Zealand, which like Victoria has an extended supervision order scheme but no provision for continuing detention, appears to have had some success in housing offenders on extended supervision in the community. There are currently 88 offenders subject to extended supervision, of whom only one is being housed on prison grounds with electronic monitoring. Of the remaining 87:
- the majority (77 offenders) are living under normal residential arrangements in the community;
- three are housed in the community, but are subject to electronic monitoring;
- one is housed in a facility with psychiatric support; and

• six are accommodated in a hostel.^[813]

3.17.17 The Department of Corrections in New Zealand has been assisted in the task of finding appropriate accommodation by the support of the Housing New Zealand Corporation—a Crown agency that provides housing services for people in need.^[814] The Department of Corrections have advised that Housing New Zealand ‘have been of significant assistance in finding suitable accommodation for child sex offenders on extended supervision orders’.^[815]

3.17.18 There is a formal protocol between the Department of Corrections and Housing New Zealand, which sets out the expectations of both agencies about interaction and information exchange with a view to these agencies working together to assist offenders who are having difficulty finding housing, including child sex offenders.^[816] The success of this effort suggests that there is some benefit in agencies sharing responsibility for finding accommodation for offenders, and housing providers being directly involved.

3.17.19 In Texas—the only US state with only an out-patient civil commitment scheme for ‘sexually violent predators’—all offenders must live in a halfway house on release prior to moving into the community.^[817] Halfway houses are run by private providers who are contracted to provide these services by the Texas Department of Criminal Justice Parole Division.^[818] Before an offender can be approved to move from a halfway house into private accommodation, the offender must meet certain criteria and the treatment team must agree to the move.^[819] The criteria to be met include the offender’s active participation in sex offender treatment, evidence of employment, demonstrated ability to be financially responsible, consent to and successful completion of all polygraph examinations, evidence the offender is exhibiting pro-social behaviour, and, when possible, the ability to rely on a social support system.^[820]

Offenders on Continuing Detention Orders

3.17.20 The majority of the High Court in Fardon^[821] held that the current continuing detention scheme in Queensland is not punitive in nature. Justice Kirby, dissenting, pointed out that prisoners placed on continuing detention orders remained in prison ‘in the same conditions as those imposed as punishment for criminal convictions’.^[822] Characterising continuing detention as a means of protecting the community rather than of punishing the offender has repercussions in terms of finding appropriate accommodation for offenders.

3.17.21 In Veen v The Queen (No. 2), Justice Deane expressed the hope that a properly constructed scheme to protect the community from high-risk offenders could be ‘based on periodic orders for continuing detention in an institution other than a gaol and provide a guarantee of regular and thorough review by psychiatric and other experts’.^[823] In Fardon, one of the main criticisms raised by Justice Kirby (dissenting), which in his view rendered the Queensland scheme invalid, was the approach taken to accommodating and managing offenders subject to continuing detention orders. Justice Kirby questioned whether the purpose of rehabilitation had been given any genuine place in the scheme, commenting:

Invalidity does not depend on verbal formulae or the proponent’s intent. It depends upon the character of the law. Effectively, the Act does not provide for civil commitment of a person who has completed a criminal sentence. Had it done so, one would have expected commitment of that person to a different (non-prison) institution, with different incidents, different facilities, different availability of treatment and support designed to restore the person as quickly as possible to liberty, which is that person’s ordinary right as a human being in Australia and under the protection of its Constitution and laws.^[824]

3.17.22 Justice Kirby conceded that in exceptional cases where a prisoner continues to represent a danger to the community after having served his or her punishment for a criminal offence, and where that danger does not arise from an established mental illness, abnormality or infirmity which would be addressed by existing laws, ‘it is possible that another form of detention might be created’.^[825] However, he emphasised that the minimum standard for any such scheme was that detention under it:

would have to be conducted in a medical or like institution, with full facilities for rehabilitation and therapy, divorced from the punishment for which prisons and custodial services are designed.^[826]

3.17.23 The Victorian Human Rights Charter directs that a person detained without charge must be segregated from persons who have been convicted of offences, except where reasonably necessary.^[827] Detaining offenders under an HRO order in the same place as offenders completing a sentence of imprisonment may contravene the Charter unless it is ‘reasonably necessary’ for these offenders to be housed in the same place.^[828] If a court decided that an offender’s risk should be managed in the community, it is debatable whether a lack of suitable accommodation for that offender would make his or her detention in prison ‘reasonably necessary’.

3.17.24 The existing arrangement for housing offenders subject to extended supervision orders could be viewed as a form of detention. On this basis, if a continuing detention scheme is introduced in Victoria, a clearer distinction will have to be drawn between those offenders who are subject to continuing detention and those who are subject to post-sentence supervision. If the Supreme Court orders the supervision of an offender in the community under an HRO order, it would be difficult to argue that offenders should be ‘supervised’ under the same arrangements as those offenders ordered to be subject to detention. The question remains where an offender should be accommodated if the court orders that the offender be detained under the HRO order.

3.17.25 In preliminary discussions and submissions, it was suggested that offenders who are placed on continuing detention orders should be segregated from the general criminal prison population.^[829] In one submission, concern was expressed that the current condition of correctional facilities is not conducive to the treatment and rehabilitation of prisoners.^[830] One member of the community also rejected gaol as an appropriate place to detain these offenders post-sentence:

I am conscious of the gravity of the offences and also concerned for the victims. Yet, where will these people be kept? If the detention is not punishment, but for ‘rehabilitation’ and ‘community protection’, then jail is not an appropriate place for them to stay in after their sentence is completed.^[831]

The Discussion Model and Responses

3.17.26 Central to the discussion model was the principle that an offender should be detained in a place considered most likely to facilitate his or her rehabilitation, taking into account community protection concerns and the least restrictive means of managing that person’s risk. This principle received support from a number of those who made submissions.^[832]

3.17.27 In light of the Charter of Human Rights and Responsibilities, the model proposed that offenders be detained separately from the general prisoner population (for example, as is currently the case for some offenders subject to an ESO who are required to live within the perimeter of a prison). A number of those consulted on the discussion model supported this approach.^[833] As discussed at [2.5.47], a number of focus group participants specifically opposed the detention of offenders in prison:

[Offenders] deserve to get out of the prison atmosphere after they are released even if they don’t get freedom.^[835]

I would feel uncomfortable if they were living next door, anyone would be ... but I don’t believe they should be kept in mainstream prison.^[836]

3.17.28 This view was also reflected in submissions, including those received from community members:

Supervision or detention should not be done on the grounds of the prison, whether for practical or other reasons, including the threat of vigilantism. It contradicts the purpose of assisting reintegration into the community. I therefore disagree with the proposal to house extended detention persons on prison grounds, even if that is where most treatment programs are currently located. Appropriate accommodation should be found for people in the community and due to vigilantism group housing should be avoided.^[838]

3.17.29 The Crime Victims Support Association suggested the establishment of a ‘sex offender compound’ managed by Corrections Victoria, with residents required to wear satellite tracking devices.^[839]

3.17.30 The Law Institute of Victoria submitted:

[I]n accordance with the Charter, offenders detained after their sentence should not be housed with the general prison population ... [and] convicted sex offenders who have completed their sentences should not be housed together as this is not the ideal situation for their ongoing treatment and rehabilitation. The reciprocal obligation on Corrections Victoria should extend to the provision of accommodation which best accommodates the rehabilitation of the offender and allows for the offender to fully access sex offender programs that would facilitate their ability to move off a HROO.^[840]

3.17.31 Similarly, Victoria Legal Aid was of the view that the primary determinant of where an offender is housed should be rehabilitation. VLA raised strong objections to detaining offenders in prisons or within prison grounds, submitting that offenders on orders ‘should be housed in accommodation or secure facilities within the community—whichever is the least restrictive means of managing risk to the community’.^[841]

3.17.32 The Office of the Child Safety Commissioner expressed similar views:

Consistent with the Charter of Human Rights and Responsibilities and commonsense rehabilitation management, offenders should be housed separately from the general prison population.

3.17.33 The OCSC also criticised current arrangements under which offenders subject to extended supervision are being housed within the perimeter of the prison, and suggested that where offenders are housed should be determined by the availability of rehabilitation services:

It is simply inappropriate to house offenders within separate facilities on prison grounds as part of their ‘community’ supervision, when treatment goals include reintegration into the community. Such community supervision is artificial and does not provide an accurate assessment to be made of how offenders would really manage their behaviour in the community and actually increases the risk to vulnerable children in the community as a consequence. Supervising offenders by keeping them on prison grounds is counterproductive to the progress of their rehabilitation and defeats the purpose of the original order. The common myth that children’s safety can be protected by external controls such as environmental scans to prevent housing of offenders close to services used by children fails to acknowledge that their safety is determined by the level of internal behavioural control of the offender. Where offenders are housed should be determined by the capacity to access rehabilitation services to reduce impediments to successful engagement.

3.17.34 The OCSC was among those who supported exploring the option of creating a separate secure facility or unit for offenders detained under the scheme, located in the community, with an emphasis on the provision of specialised treatment for offenders detained under HRO orders. The OCSC submitted:

There is a very clear need for the resources to be found to provide housing in a purpose-built treatment facility for the relatively small group of offenders under post-sentence detention orders. Such offenders need to move on from correctional facilities in order for their rehabilitation to be progressed, and the safety of vulnerable children in the community enhanced ... ^[842]

3.17.35 The South Eastern Centre Against Sexual Assault, while similarly recognising that a separate secure facility would involve ‘a serious commitment of funds from the State Government’, suggested that ‘keeping people in gaol and providing therapy and compensation for victims is also expensive’ and any money spent on a separate facility ‘would be money well spent’.^[843]

3.17.36 In the context of discussing the current problems with accommodating offenders subject to extended supervision orders in Victoria, the Chair of the Adult Parole Board in the Board’s 2005–06 Annual Report urged that other accommodation options be explored:

The issue of accommodation has become a matter of great concern because it is almost impossible to find any accommodation in the community for such persons. Regrettably, in the course of the year under review, some irresponsible sections of the media generated what, in effect, amounted to vigilante action against not only such persons but also entirely innocent members of the community. The experiences of the past year emphasise the necessity for the community to give careful consideration to the establishment of appropriate accommodation that could provide a continuum of correctional services to high-need parolees ... and persons who are subject to extended supervision orders. In last year’s Annual Report, I referred to the statements made by the former Chairperson of the Board, the Honourable Justice Frank Vincent, during the 1980s when he called for the establishment of ‘halfway houses’. In my view, it remains necessary that careful consideration be given to providing appropriate accommodation arrangements to create a bridge between institutional detention of high-need sex offenders and their supervision in the community, whether on parole or under an extended supervision order. Such accommodation would provide appropriate safety for the community, and appropriate supervision and rehabilitation programs and services for sex offenders.^[844]

3.17.37 However, some, including some focus group participants, suggested that it was appropriate for offenders subject to continuing detention to be held in prison, including on safety and cost grounds:

Why spend money on a separate community for them? Put them in gaol.^[846]

3.17.38 Victoria Police suggested that the ‘only option available for continued detention should be custodial’, but offenders subject to continuing detention ‘should have access to resources to reduce [their] level of risk’ wherever they are housed.^[847]

Alternative Approaches

3.17.39 A recent paper prepared by the US Center for Sex Offender Management suggests that approaches that show promise in the area of housing include:
- inviting housing representatives to participate as members of multidisciplinary sex offender management teams; and

• investment of resources to expand the range of housing options for sex offenders during the transition and re-entry process, including provision of rent subsidies, transitional placements and shared housing for sex offenders.^[848]

3.17.40 Shared living arrangements involve two or three offenders living together in accommodation which they either rent or own.^[849] These arrangements are described as being ‘an extension of the Therapeutic Treatment Community treatment modality in which offenders’ living environments can be seen as an extension of both treatment and monitoring’.^[850] Under these arrangements an offender can live on his or her own ‘with informed roommates, in a controlled environment, and with close contact with his or her treatment provider and supervising officer’.^[851]

3.17.41 While some concerns were expressed to us during consultations about high-risk offenders living together, some US jurisdictions have reported success with this approach. Reported benefits of these arrangements include:
- more frequent visits by corrections officers, as they will visit individual offenders living at a property at different times;

• improved accountability, monitoring and support of offenders.^[852]

3.17.42 The supervision and monitoring of offenders by other members of the household who are also subject to orders is viewed by treatment providers as a benefit and one that is unique to these types of living arrangements:

Offenders hold each other accountable for their actions and responsibilities and notify the appropriate authorities when a roommate commits certain behaviors, such as returning home late or having contact with children. This type of accountability and support is different in a SLA [shared living arrangement] than in other types of living arrangements in that the treatment provider makes holding each other accountable for their actions a requirement of living in the SLA.^[853] (Emphasis in original)

3.17.43 It is often viewed as inappropriate to house offenders in units or other lower-cost accommodation with shared facilities.^[854] Another benefit of shared living arrangements, therefore, may be to ease the burden on offenders of paying rent on private rental properties.^[855]

Community and Media Notification

3.17.44 Another issue directly related to that of accommodation is the possible public disclosure of information concerning where sex offenders are housed. The Crime Victims Support Association supported the provision of this information to the public to assist in preparing for the settlement of the offender in their community, along with the introduction of secure accommodation arrangements:

The Crime Victims Support Association ... have worked over the years with numerous victims of pedophilia and victims of serious sexual offenders who present a high risk to commit repeat offences. We find that the present laws to protect the community, conduct investigations by the police and to quickly apprehend sex offenders are impaired by the lack of available information to not only the police but also the general public.

This information should be provided to communities so they can develop adequate and constructive plans to prepare themselves and their family. Sex offenders have always been in our communities ... This notification process would help to remove sex offenders’ ability to act secretly.^[856]

3.17.45 While many states in the US have introduced these types of arrangements, it has been recognised that community disclosure is a ‘double-edged sword’.^[857] On the one hand, this approach may assist in communities’ active involvement in preventing reoffending: on the other, disclosure can often result in ‘media witch hunts’, and offenders being hounded from their homes.^[858] As discussed above, there have been some recent examples in Victoria of these types of responses.

3.17.46 The Crime Victims Support Association in its submission, while supporting community notification, cautioned:

Sex offender registry information should not be used to retaliate against the registrants, and their families, or their employers in any way. Vandalism, verbal or written threats to harm are against the law and will result in arrest and prosecution.^[859]

3.17.47 Despite the existence of penalties for these types of responses, there is a real risk that community disclosure may in fact increase the likelihood of an offender reoffending by disrupting accommodation arrangements for offenders and forcing them to relocate. In some instances, it may also force them underground. Lifestyle instability in the case of sex offenders has been found to be associated with a higher risk of reoffending.^[860]

3.17.48 In Section 3.21 of this Report, we discuss the power of the court to make a suppression order, which may deter the disclosure and publication of information related to proceedings for post-sentence orders. In setting out the powers of the HRO Board in Section 3.7 we also recommend that the proceedings of the new HRO Board should be protected by provisions similar to those which apply to the proceedings of other, similar bodies, such as the Adult Parole Board and the Mental Health Review Board that govern the disclosure of confidential information.
3.17.49 Negative media and community reactions to housing high-risk offenders have been met by various responses in other jurisdictions, including:

• the development of local media protocols to deal with high-profile or media-sensitive offenders, including strategies to respond to media enquiries about sensitive, high-profile or serious cases;^[861]

• including communications managers as members of multidisciplinary teams managing the highest-risk offenders, to deal with media issues relating to the offender or past victims of offences;^[862]

• involving community members as advocates on behalf of the offender, who may liaise with neighbours and other community members in programs to support offenders in the community (such as the Circles of Support and Accountability program).^[863]

The Council’s View

Offenders Supervised in the Community

3.17.50 Under the Council’s proposals, the HRO Board would have responsibility for overseeing the management of offenders subject to supervision in the community, and in the case of offenders subject to detention and supervision HRO orders, making decisions about their release, including where these offenders should be housed. To enable the Board to perform its functions effectively, the Council recommends that the HRO Board should have responsibility for commissioning and considering any environmental scans conducted, and for approving an offender’s accommodation arrangements.
3.17.51 It is likely that the HRO Board will face similar challenges to those faced by the Department of Justice and Adult Parole Board under the current ESO arrangements. These challenges will remain, regardless of whether a continuing detention scheme is or is not introduced.
3.17.52 While we are sympathetic to the difficulties of finding appropriate accommodation, we do not believe the current practice of housing offenders subject to supervision ‘in the community’ within the walls of a prison can be continued, either under a reformed ESO scheme or a new post-sentence scheme. As we have stated elsewhere in this Report, in our view these arrangements are contrary to the spirit of the legislation, and effectively transform what is intended to be community supervision into a form of continuing detention. We believe the current state of affairs is unsatisfactory—both for those subject to such orders, and those who have the responsibility of administering them. We therefore recommend that these arrangements be reviewed, and priority be given to exploring alternative options for housing offenders in the community.
3.17.53 A number of suggestions have been made to us in submissions and over the course of our consultations for possible alternative arrangements, including forms of supported accommodation in the community or transitional centres. While this would involve a substantial investment in funding, in the long term it may provide an alternative where no appropriate private housing can be found in the community. While we do not profess to have the answer to this intractable problem, as a possible way forward, the Council suggests that further discussions should take place with housing providers, those who work with offenders and victims, and the broader community to identify viable solutions.
3.17.54 The disclosure by the media of offenders’ places of residence is likely to continue to present challenges to successfully housing offenders subject to supervision in the community. The community’s concerns about having offenders housed in their neighbourhoods, near children’s homes, playgrounds, schools, and other places frequented by children are genuine and strongly held. However, we also acknowledge that rather than making the community safer, the media and community’s public ‘outing’ of offenders may in fact increase the likelihood of reoffending by destabilising an offender’s accommodation arrangements and support network. In this Report the Council recommends a number of measures to provide some protection against the disclosure of information concerning offenders, beyond that which is necessary for the administration of orders. These measures include strengthening the existing suppression order provisions to make clear the consequences of contravening such orders, and the application of provisions to regulate the disclosure of information related to the HRO Board’s proceedings.

Offenders Detained under a Detention and Supervision HRO Order

3.17.55 While we acknowledge the considerable costs likely to be associated with this option,^[864] and concerns about the possible anti-therapeutic effects of concentrating high-risk offenders in one environment, the Council suggests that if a new post-sentence scheme is introduced in Victoria consideration should be given to creating a separate facility or unit for offenders detained under a detention and supervision HRO order, with an emphasis on rehabilitation and the provision of specialised treatment.

3.17.56 In our view the detention of offenders subject to post-sentence orders in a therapeutic environment would not only be more consistent with the broad purpose of the scheme (to enhance community protection by providing for the care and control of high-risk offenders and by providing for their treatment and rehabilitation) but would also mark this form of detention as separate and distinct from detention in prison designed to serve a primarily punitive purpose.
3.17.57 In the absence of a separate facility being available, we recognise that at least in the short term, it may be necessary to house these offenders within existing correctional facilities where arrangements can be made for access to appropriate treatment programs. At a minimum, we recommend that offenders subject to detention and supervision HRO orders should be accommodated separately from the general prison population, although we acknowledge the possible loss of amenity this may cause. Regardless of where they are housed, the Council suggests that offenders should still be able to access programs and other services offered within the prison where it is in the interests of their rehabilitation to do so.

Recommendation 24: Accommodation of Offenders

24—A Reformed Extended Supervision Scheme

24—B New High-Risk Offender Scheme

(3) If an offender is on a detention and supervision high-risk offender order, the High-Risk Offenders Board has the power to direct that the offender be detained.

(5) Consideration should be given to the use of alternative detention arrangements, such as a secure treatment facility to house offenders who are detained under a high-risk offender order.

3.18 Length of Orders and Review

The Current Legal Framework

Victorian Extended Supervision Scheme

3.18.1 Extended supervision orders in Victoria can be up to 15 years in length,^[865] although the Secretary may apply for the renewal of an order at any time while it is still in force.^[866] It is therefore possible that such orders could, in effect, be indefinite. As discussed at [2.3.20], in this sense, it is as much a continuing supervision scheme as it is an extended supervision scheme.

3.18.2 Orders must be reviewed by a court at intervals of no more than three years to determine whether the offender should remain subject to the ESO.^[867] On review, the court must revoke the extended supervision order unless the original test for making the order is still satisfied.^[868] The Secretary to the Department of Justice or the offender (with the permission of the court) may also apply to the court at any time for a review of the extended supervision order.^[869]

Other Australian Post-Sentence Schemes

3.18.3 In New South Wales both continuing detention orders and supervision orders are limited to a term of five years,^[870] with a power to make a new order prior to expiry of the existing order.^[871] There is no provision made for regular reviews; however, the Supreme Court may vary or revoke a continuing detention order or supervision order at any time on the application of the Attorney-General or the offender.^[872]

3.18.4 In contrast, in both Queensland and Western Australia continuing detention orders are indefinite,^[873] and while supervision orders must arguably be of a fixed duration,^[874] there are no limits set on the maximum length of these orders. Continuing detention orders must be reviewed by the Supreme Court annually.^[875] There is no specific provision made for reviews of supervision orders.

Issues and Consultation

Fixed-Term or Indefinite Orders?

3.18.5 A number of those who made submissions and were consulted were in favour of requiring orders to be for a fixed term rather than an indefinite period, if a continuing detention scheme is introduced.^[876] Victoria Police was among those who argued that, as in the Queensland scheme, orders should be indefinite but subject to periodic review.^[877]

3.18.6 A number of arguments were advanced in favour of continuing detention orders being of fixed rather than indefinite duration, including that the use of fixed-term orders:
- recognises that detention carries more significant consequences for an offender than supervision;
- minimises the harm caused by an inaccurate prediction of risk;
- avoids the ‘demoralisation’ that can occur in an indeterminate regime; and

• recognises that a finite order may be more conducive to treatment and rehabilitation than an indefinite order: it can have ‘a positive therapeutic effect because it gives the [individual] a specific behavioural goal to achieve (that is, no antisocial activity within the specified period in order to obtain release)’.^[878]

3.18.7 Conversely, indefinite orders may be seen as providing better protection against the risks posed by an offender, and as overcoming some of the problems related to determining the appropriate length of orders.

Determining the Length of Orders

3.18.8 A key human rights safeguard for continuing detention schemes is that the duration of the deprivation of liberty must be reasonably related to the prevention of the harm feared.^[879] Assuming that orders are of fixed duration, it has been suggested that ‘the time limit [for the order] need not, and probably should not, be tied to the sentence associated with the triggering crime’, but in a practical sense, it may have the same effect: ‘the theory would be that, had the prediction that led to preventive detention been correct, the crime would have been committed and the person subject to a sentence, at the end of which the state would release him’.^[880]

3.18.9 Currently there is little guidance provided to courts regarding the appropriate reference point for setting the period of post-sentence orders (such as the length of the original sentence imposed, or the severity or likely duration of the risk posed by the offender). This is illustrated by comments made by Acting Justice Skoien in the Queensland case of Wright,^[881] in which he referred to having ‘arbitrarily select[ed] fifteen years’^[882] as the appropriate term of an extended supervision order, on the basis that the psychiatrists who had provided assessment reports to the court disagreed about the suitable length of the order.

3.18.10 In Victoria there has been considerable variation in the length of extended supervision orders made. Orders have ranged from three years to 15 years in length.^[883] It could be argued that in light of the lack of guidance, a 15-year maximum term is too long and allows for too much variation.

3.18.11 In New Zealand, the relevant legislation relating to extended supervision orders provides:

The term of the order must be the minimum period required for the purposes of the safety of the community, in light of:

the level of risk posed by the offender; and
the seriousness of the harm that might be caused to the victims; and

• the likely duration of the risk.^[884]

3.18.12 While setting out this type of guidance in the legislation may assist courts in setting the term of orders made, such factors could equally be criticised as being overly broad and of little practical assistance to courts in setting an appropriate term.
3.18.13 To avoid these problems, orders could be made for an indefinite period (as is the case in Queensland and Western Australia), or for a set period, with provision for the order to be varied or revoked earlier if necessary. An approach that provided for short orders of fixed duration, or indefinite orders with regular reviews, could also be seen as more consistent with the dynamic nature of risk.

The Relationship Between the Length of Orders and the Frequency of Reviews

3.18.14 The interval between reviews of orders is also relevant to the appropriate length of orders, as the main purpose of reviewing an order is to determine whether the offender should remain subject to it (that is, to determine whether the test is still satisfied). For example, the current Victorian ESO scheme provides for orders of up to 15 years’ duration, with reviews at intervals of no more than three years to determine whether the offender should remain subject to the ESO.^[885] At review the court must revoke the extended supervision order unless the test is satisfied.^[886] It therefore could be argued that no matter what the stated length of an order, in effect it operates as if it were a three-year renewable order. Table 1 (below) illustrates the maximum length of orders and the frequency of reviews under each of the Australia post-se[887]nce schemes.⁸⁸⁷

Table 1: Comparison of Maximum Order Length and Minimum Review Period under the Relevant Australian Schemes

Jurisdiction	Supervision		Detention
Jurisdiction	Length	Review Frequency	Length	Review Frequency
Vic	15 years	3 years	N/A	N/A
Qld	No maximum length specified in Act	No review	Indefinite	1 year
NSW	5 years (but can apply to revoke at any time)	No provision for review but can apply to revoke at any time	5 years (but can apply to revoke at any time)	No provision for review but can apply to revoke at any time
WA	No maximum length specified in Act	No review	Indefinite	1 year

3.18.15 The system of annual reviews under the Queensland scheme was one of the factors cited by the majority of the High Court in Fardon’s case in finding that the scheme was constitutionally valid.^[888] Justice Gummow, in the majority, observed that factors including ‘the subjection of continuing orders to annual review by the Supreme Court ... support the maintenance of the institutional integrity of the Supreme Court’.^[889]

3.18.16 The need for regular reviews was stressed by a number of those who made submissions.^[890]

The Discussion Model

3.18.17 The Council’s discussion model proposed that the maximum length of high-risk offender orders should be five years, with a court review every two years, and an annual review by the proposed High-Risk Offenders Panel. It was suggested that, as in the existing ESO scheme, there should be a power to apply for a new order before the expiry of an existing order.

Submissions and Consultations

3.18.18 There was some support in our consultations for the five-year terms suggested in the discussion model.^[891] However, others, such as the Law Institute of Victoria, submitted that this period was too long and would ‘reduce the incentive for those on an order to take steps to reduce their risk’.^[892] The South Eastern Centre Against Sexual Assault supported a two-year order on similar grounds.^[893]

3.18.19 It was generally agreed that orders should be able to be renewed on the basis that an offender’s risk may not have been reduced sufficiently during the term of the order and the offender still posed a significant risk to the community.^[894]

The Council’s View

Length of Post-Sentence Orders

3.18.20 Taking the above issues into account, the Council has concluded that under either a reformed ESO scheme or a new HRO scheme, orders should be of a fixed duration, with a power to apply for review of the continuing need for the order, or the nature of the order, if the offender is no longer an unacceptable risk or the risk can be managed in a different way.
3.18.21 In our view there are real challenges in meaningfully differentiating between offenders when determining the appropriate length of orders—particularly taking into account the dynamic nature of risk. We do not believe these challenges can adequately be overcome by setting criteria under the legislation. Nor do we believe that orders that provide for the possibility of detention should be of indefinite duration.
3.18.22 This position has led us to reconsider the recommended length of orders. It clearly is important that orders be of sufficient length to address the offender’s risk factors, while not being disproportionately long to achieve the purposes of community protection. Also relevant to our consideration was the relationship between the length of an order and the period between reviews. If the scheme requires a review of the continuing need for the order every two years, and orders are renewable, in our view there is no practical difference between a two-year order, a five-year order, a 15-year order, or even an indefinite order. Under all of these approaches, the court is required at the two-year mark to determine whether the test is still satisfied to the requisite standard, and if not, to release the offender from any further obligations (either by not making a new order, or by revoking an existing order).
3.18.23 The Council therefore has reached the view that orders should be for a set period of two years, with a power for the DPP to apply for a new order before an existing order expires. As for the current extended supervision order scheme, we believe no limits should be placed on the number of orders that can be made. In effect this will allow for the indefinite supervision or detention of eligible offenders in circumstances where the offender presents a serious ongoing risk to the community and his or her risk has not abated. Having two-year orders will also remove the need for set court reviews.
3.18.24 As well as streamlining the period of the orders with the review period, structuring the order as we recommend will have additional benefits. First, requiring an application for a new order to be made, rather than requiring the review of an order that is already in place, may serve an important symbolic function by making clear that the onus is on the state to justify why the offender should remain under state control.
3.18.25 Secondly, the proposed changes address the problem of how a review is triggered. The current scheme could penalise the offender if a review is not listed—the longer it takes to list the review, the longer the offender is supervised or detained without review. As the offender has limited power to ensure that a review is listed, this has the potential to infringe the offender’s rights. Shifting the process from a review to an application for a new order clearly delineates responsibilities. The DPP has the obligation to apply for a new order before the current order expires. If this is not done, the offender will be released. This rightly places the onus on the state to protect the offender’s human rights.
3.18.26 Thirdly, we believe that the proposed system will achieve greater transparency in the way orders operate. In those jurisdictions with ‘indefinite’ orders, each time the order is reviewed there is the potential for it to be revoked. Similarly, a 15-year extended supervision order may be revoked on review. In effect, such orders are only as long as the period between reviews. Under the Council’s recommendations, if an application for a post-sentence order is successful, the offender is placed on a set two-year order. The order remains in force for the entire duration of this period, unless an application to revoke an order is made and is successful. If, as the offender approaches the end of the order, the view is taken that a further period of supervision or detention is necessary, an application for a new order can be made.

3.18.27 Finally, having a number of short orders—rather than a long or indefinite order with regular reviews—may ensure that both the state and the offender remain motivated to fulfil their obligations under the order, as there will be a clear possibility of an order expiring at the end of a two-year period. This approach may go some way to addressing the argument that offenders are more likely to be engaged and motivated by measures that focus on what the offender should do (e.g. participation in programs) rather than what he or she should not do, and on how the offender can earn his or her way into community release rather than off continued detention.^[895]

Reviews

Initial Review at Sentence Expiry

3.18.28 A consequence of extendable two-year HRO orders is that other automatic, regular court reviews are not required, with one exception: a mandatory court review will need to be scheduled towards the end of an offender’s sentence.
3.18.29 Under the Council’s proposals, the DPP would be required to make an application for an HRO order no later than the offender’s earliest release date (generally the parole eligibility date). The only exception would be to allow a later application to be made in cases where new adverse evidence indicating that a defendant was high-risk became available (see further [3.9.15]–[3.9.16]. This means that in most cases, an HRO order is likely to be made well in advance of the end of an offender’s sentence.
3.18.30 Because the nature of the offender’s risk may change between the time the application is made and the conclusion of the offender’s sentence, we recommend that a mandatory review take place shortly before the offender’s sentence expires. The purpose of this review is to:
- determine the continued need for the order;
- under a new high-risk offender scheme, specify the nature of the order (i.e. whether the order should allow for the detention and supervision of the offender, or supervision only); and
- under a reformed ESO scheme which permits the court to set conditions, to finalise the conditions of the order.
3.18.31 Under our proposals, the DPP would be responsible for initiating this review.

Optional Reviews by Application

3.18.32 We recommend that the legislation provide the offender (with the leave of the court) or the DPP the right to apply for a review at any time. If a new HRO scheme is introduced, the purpose of this review should be to determine the continuing need for and the nature of the HRO order. If the current ESO scheme is reformed, instead of introducing a new HRO scheme, the purpose of the review would be to consider the continuing need for the order, and, should the court set the conditions, the conditions of that order.

Review by the High-Risk Offenders Board

3.18.33 As the HRO Board will be responsible for setting conditions and managing offenders under orders, it should be required regularly to review an offender’s progress under the order, the obligations of relevant agencies, and the appropriateness of conditions, as part of the management process. In this Report we recommend that formal reviews should take place at least on an annual basis.

Recommendation 25: Length of orders

25—A Reformed Extended Supervision Scheme

(1) An extended supervision order should be for a set period of two years.

(3) If no further application for an extended supervision order is made, the offender should be discharged when the current order expires at the end of the two year period.

25—B New High-Risk Offender Scheme

(1) A high-risk offender order should be for a set period of two years.

(3) If no further application for a high-risk offender order is made, the offender should be discharged when the current high-risk offender order expires at the end of the two year period.

Recommendation 26: Review of Orders by the Court

26—A Reformed Extended Supervision Scheme

(1) Prior to the expiry of an offender’s sentence the Director of Public Prosecutions should initiate a review of the order at which the court should determine:

the continuing need for the extended supervision order (i.e. whether the test is still satisfied); and
(if the court sets the conditions) the conditions of the extended supervision order.

(2) As the scheme provides for set two-year orders, no further automatic reviews should be required.

(4) During the operation of the extended supervision order, the Director of Public Prosecutions and the offender (with leave of the court) should be permitted to apply for a review of an extended supervision order to determine:

the continuing need for the extended supervision order (i.e. whether the test is still satisfied); and
(if the court is responsible for setting conditions) the conditions of the extended supervision order.

(5) On review, the court must revoke the order unless satisfied that the test is still satisfied. If the court does not revoke the order, it must confirm the order and (if the court sets the conditions) may confirm or vary the conditions of the order.

26—B New High-Risk Offender Scheme

(1) Prior to the expiry of an offender’s sentence the Director of Public Prosecutions should initiate a review of the order at which the Supreme Court should determine:

the continuing need for the high-risk offender order (i.e. whether the test is still satisfied); and
the nature of the high-risk offender order (whether it should provide for supervision only or for detention and supervision).

(2) As the scheme provides for set two-year orders, no further automatic reviews should be required.

the continuing need for the order (i.e. whether the test is still satisfied); and
the nature of the order (whether it should provide for supervision only or for detention and supervision).

(5) At a review, the court must revoke the order unless satisfied that the test is still satisfied. If the court does not revoke the order the court must confirm the order and may confirm or vary the nature of the order (whether it should provide for supervision only or for detention and supervision).

Recommendation 27: Review of Orders by Board

27—A Reformed Extended Supervision Scheme

(1) If a High-Risk Offenders Board is established, the Board must review an extended supervision order at least annually, or more frequently as required.

(2) The purpose of the review by the High-Risk Offenders Board (if such a Board is established) is to:

review the offender’s compliance with and progress under the order and Offender Management Plan,
review and, if necessary, vary the conditions of the order; and
oversee and monitor the delivery of services under Offender Management Plans. This should include a power to issue directions to agencies involved in the delivery of services to an offender.

27—B New High-Risk Offender Scheme

(1) The High-Risk Offenders Board must review a high-risk offender order at least annually, or more frequently as required.

(2) The purpose of the review by the High-Risk Offenders Board is to:

review the offender’s compliance with and progress under the order and Offender Management plan;
review and, if necessary, vary the conditions of the order,
oversee and monitor the delivery of services under Offender Management Plans. This should include a power to issue directions to agencies involved in the delivery of services to an offender.

3.19 Variation of Orders

The Current Legal Framework

The Victorian Extended Supervision Scheme

3.19.1 Although the Victorian extended supervision scheme allows reviews of orders and the appeal of a decision whether or not to make, revoke or review an order, there is no power to vary, review or appeal the conditions of the order itself. This is primarily a consequence of the Adult Parole Board and the Secretary to the Department of Justice having the principal responsibility for setting conditions, effectively shifting the power to vary or review conditions from the court to the Parole Board and the Secretary.

3.19.2 Under the legislation, the Secretary and the Adult Parole Board may vary any instruction or direction given to an offender at any time.^[896] However, the only circumstance in which the conditions can be reviewed by a court is where the conditions of an order are found to be ultra vires (outside the powers of the Board or Secretary to order).^[897] The Adult Parole Board must ensure that written notice of any instruction or direction, or variation of instruction or direction, is served on the offender as soon as practicable after the instruction or direction is given or varied.^[898]

3.19.3 Similarly, there is no explicit power on appeal to amend the length of an order. Arguably this power is unnecessary, because if the order is no longer required an application for review can be made and it can be revoked, and if it is necessary to extend the period of supervision, a new order can be made.

Queensland, Western Australia and New South Wales

3.19.4 Unlike Victoria, in other jurisdictions with post-sentence schemes, the conditions of supervision orders are set by the court when making the order. The legislation in both Queensland and Western Australia allows an application to be made to the court to vary conditions, but not the length of the order.^[899] As a matter of construction, it has been held that the length of the order is not a ‘condition’ and therefore cannot be altered under the power to vary the order.^[900] As there is also no power to review orders, it appears that even if an offender’s risk is substantially reduced during the period of the supervision order, there is no power to terminate the order earlier than the specified duration. At most, the number and severity of conditions of the order can be reduced.

3.19.5 Applications to vary the conditions of an extended supervision order (and of an interim extended supervision order in Queensland) may be made by the offender, or by the Chief Executive of Corrective Services with the Attorney-General’s consent (in Queensland) or the consent of the Director of Public Prosecutions (in Western Australia).^[901] On application, the court may amend the conditions of an extended supervision order (or interim extended supervision order) if satisfied that:

the offender is unable to comply with the conditions due to a change of circumstances, or the amendment is necessary or desirable for any other reason;
the amended conditions are sufficient to ensure adequate protection of the community; and

• it is reasonable to amend the order in all the circumstances.^[902]

3.19.6 In New South Wales, the Supreme Court may vary or revoke a continuing detention order or supervision order at any time on either the application of the offender or the Attorney-General.^[903] The Commissioner of Corrective Services is required to provide the Attorney-General with regular reports on the offender’s progress at least once every 12 months, to allow the Attorney-General to determine whether an application for variation or revocation should be made.^[904]

Issues and Consultation

3.19.7 Our discussion model set out a number of options for the setting of conditions under HRO orders. The Council has concluded that under a new HRO scheme, the Supreme Court should determine whether an offender is managed under a supervision HRO order or a detention and supervision HRO order, and subject to this determination, the HRO Board should be responsible for setting the additional conditions of the order.
3.19.8 Under a reformed ESO scheme, we recommend that if a HRO Board is established, it should set conditions of ESOs. Should such a Board not be established, we have recommended that conditions should be set by the court making the order.
3.19.9 We note that if the HRO Board sets the conditions, and all orders are for a set two-year period, arguably there is no need for a separate mechanism allowing for a court review of conditions. However, if conditions are set by a court, the power to vary these conditions would logically rest with the court.

The Council’s View

Varying the Length of Orders

3.19.10 Under our proposals for a new HRO scheme or reformed ESO scheme, orders would be made for a set two-year period. If an offender is thought to remain an unacceptable risk after this period, an application for a further order or orders could be made. Where an offender is no longer perceived to be a risk during the operation of an order, an application to review (and thereby revoke) the order could be made. For this reason, the Council does not believe it necessary to provide a separate power to vary the length of orders under either a new HRO scheme or a reformed ESO scheme.

Conditions of Orders

3.19.11 Under a new HRO scheme (or a reformed ESO scheme with an HRO Board), conditions of orders not prescribed in the legislation would be set by the HRO Board. Therefore, applications for variation would need to be made to the Board, rather than to the court that originally made the order. This will allow for necessary adjustments to be made in line with the offender’s progress under the order and may ensure that the offender’s risk is managed in the least restrictive way. However, as discussed at [3.18.32], applications to review the nature of an HRO order (whether the offender is managed under supervision in the community only or under a combination of supervision and detention) would be made to the court.
3.19.12 The Council recommends that the HRO Board should be permitted to vary the conditions of an order at any time. However, as is the case under the current ESO scheme, written notice should be given and served on the offender of any new condition or variation of an existing condition as soon as practicable after the condition is made or varied.

3.19.13 If the ESO scheme is reformed—in place of introducing a new HRO scheme—and a new HRO Board is not established, the court that makes the order will be responsible for setting conditions. In this case, we recommend that the court should be permitted to vary the conditions of the ESO on hearing a review of the ESO, or after the matter has been remitted to it from the Court of Appeal. The Court of Appeal should also be permitted to vary conditions of orders on hearing an appeal under the Serious Sex Offenders Monitoring Act 2005 (Vic). This will remedy one of the deficiencies that has been identified in relation to the Court of Appeal’s powers under the current ESO scheme.^[905]

Recommendation 28: Variation of Orders

28—A Reformed Extended Supervision Scheme

(2) If a High-Risk Offenders Board is established:

There should be no power to apply to the court to amend the conditions of an extended supervision order.
The High-Risk Offenders Board may vary a condition at any time. Written notice must be given of any condition or variation and served on the offender as soon as practicable after the condition is given or varied.

28—B New High-Risk Offender Scheme

(1) There should be no power to apply to the court to amend the conditions of a high-risk offender order.

3.20 Appeal of Decisions

The Current Extended Supervision Scheme

3.20.1 Under the Victorian scheme, the offender has a right to appeal a decision to make, to renew, or not to revoke an extended supervision order.^[906] The Secretary has a right to appeal a decision not to make, not to renew, or to revoke an extended supervision order if it is considered to be in the public interest.^[907]

3.20.2 On appeal, the Court of Appeal may:
- revoke the ESO or the renewed ESO;
- confirm the relevant decision;
- if it thinks that an ESO should have been made or renewed, quash the relevant decision and remit the matter to the court which made that decision, with or without any directions; or

• if it thinks that the ESO should not have been revoked, quash the relevant decision and make an order reviving the ESO.^[908]

3.20.3 Table 9 in Appendix 1 compares the Victorian appeal provision, including the powers on appeal, with those in the relevant Australian schemes.^[909]

Issues and Consultation

3.20.4 The majority of the High Court in Fardon emphasised the right to appeal as an important safeguard, one which helped to ensure the validity of the Queensland scheme.^[910] A number of submissions referred to the right to appeal against a decision to make an order for continuing detention as a critical safeguard in any continuing detention scheme.^[911] There was also recognition that the Director of Public Prosecutions, as the applicant, also should have appeal rights.^[912]

3.20.5 A number of issues with the appeal provisions under the Victorian ESO scheme were explored in detail in our Discussion and Options Paper. For example, there is currently no power for the Court of Appeal to vary the terms of an extended supervision order. The Court of Appeal has the choice between revocation and confirmation and an order can be revived but not varied. There is also no power to make an interim order and refer a matter back to the original court for reconsideration, although in some cases it may be in the interests of justice to do so. Nor is there any power for the court to impose an order of its own volition. These deficiencies were the subject of specific comment by the Victorian Court of Appeal in TSL v Secretary to the Department of Justice.^[913]

3.20.6 As discussed in Section 3.19, although the Victorian extended supervision scheme allows an appeal against decisions of whether or not to make, revoke, or review an order, there is no provision for appealing the conditions of an order.

3.20.7 There is also no power for the Court of Appeal to extend the time within which an application for an appeal must be made, either before or after this period has expired. While acknowledging that this was not an issue raised in the case of TSL, Justice Callaway commented that it would be useful for the court to have this power.^[914]

The Council’s View

3.20.8 The Council considers that it is appropriate that an offender have a right to appeal to the Court of Appeal concerning the decision to make, not to revoke or not to review an HRO order (or extended supervision order, under a reformed scheme). The Director of Public Prosecutions also should have the right to appeal to the Court of Appeal against the decision not to make, or to revoke, or not to review an order if such an appeal is considered to be in the public interest.

3.20.9 To remedy the deficiencies of the existing powers of appeal under the Serious Sex Offenders Monitoring Act 2005 (Vic), identified by the Court of Appeal in TSL v Secretary to the Department of Justice,^[915] the Council recommends that the powers of appeal should be expanded. Under our proposals, the Court of Appeal would have the power on appeal to remit the matter back to the original court, with or without directions and with the ability to make an interim order, which would remain in force until the matter is reheard. In TSL’s case, this would have allowed the Court of Appeal, on finding that the court in its decision placed too much emphasis on the assessment report, to quash the original order, make an interim order and send the matter back to the County Court to be reheard. The Court of Appeal in these circumstances also might have issued directions to the County Court concerning what factors should be taken into account under the legislation when determining whether the legal test has been satisfied.

3.20.10 To provide the Court of Appeal with sufficient flexibility to respond to the circumstances of such cases, the Council also recommends that the Court of Appeal should be given the power, upon quashing an order made in the first instance, to make a new order. In TSL’s case, such a power would have allowed the Court of Appeal to have quashed the original order and made a new order, provided there was sufficient evidence on which to do so. We further suggest that a power should also be given to the Court of Appeal to extend the period in which the notice of appeal must be filed, as currently exists in relation to the hearing of ‘ordinary appeals’.^[916]

3.20.11 Consistent with the current arrangements under the Serious Sex Offenders Monitoring Act 2005 (Vic), we recommend against allowing appeals from decisions of the HRO Board in relation to conditions imposed. In our view, there is some benefit in an expert body, such as the Board, having the flexibility to manage offenders in a way that will best respond to their changing circumstances and risk factors. We are confident that the possibility of the Board imposing unnecessary and onerous conditions can be appropriately protected against through the safeguards recommended earlier in this Report, including:
- ensuring that the Board’s proceedings, as far as possible, are consistent with the rules of natural justice;
- appointing a current or retired Supreme Court judge to chair the Board, and a judicial officer or experienced legal practitioner as the Deputy-Chair;
- creating a new role of Risk Management Monitor, with responsibility for providing expert advice to the Board on best practice in risk management and assessing the overall operation of the scheme, including the treatment of offenders under the scheme; and
- ensuring that other members appointed to the Board have an appropriate understanding of factors associated with risk, including knowledge of which factors are and are not associated with the risks of sexual and serious violent reoffending.
3.20.12 The absence of a right to appeal decisions of the Board will not affect existing common law grounds of appeal open to an offender, such as that the Board has acted in excess of its powers under the legislation.
3.20.13 Should the existing extended supervision order scheme be reformed and a court, rather than the proposed HRO Board, be given responsibility for setting conditions, the Council recommends that an appeal against the conditions of an ESO should be permitted under the legislation.

Recommendation 29: Appeal

29—A Reformed Extended Supervision Scheme

(1) There should be provision for:

the offender (with the leave of the court) to appeal to the Court of Appeal against decisions made by the court such as a decision to make or not to revoke or not to review an order; and
the Director of Public Prosecutions (if it is considered to be in the public interest) to appeal to the Court of Appeal against decisions made by the court such as a decision not to make or to revoke or not to review an order.

(2) If the court is responsible for setting the conditions of the order, there should be provision for the offender to appeal against the setting of a condition (with the leave of the court).

(3) On appeal the Court of Appeal should have the power:

if it thinks that the order or condition should have been made/not made, revoked/not revoked, or reviewed/not reviewed, to quash any order or condition made at the original hearing; and/or
in substitution, to make some other order or condition warranted in law (whether more or less severe) as it thinks ought to have been made; or
if it thinks that it is appropriate and in the interests of justice to do so, to quash the order or condition made at the original hearing and remit the matter to the Court; or
in all other cases, to dismiss the appeal.

The court should be required to hear and determine the matter in accordance with law and any such directions.

(5) Where a new hearing is directed or a matter is remitted, the Court of Appeal should have the power to make an interim order.

(7) The Court of Appeal should have the power to extend the period in which the notice of appeal must be filed.

29—B New High-Risk Offender Scheme

(1) There should be provision under the new High-Risk Offender scheme for:

the offender (with the leave of the court) to appeal to the Court of Appeal against decisions made by the court such as a decision to make or not to revoke or not to review an order; and
the Director of Public Prosecutions (if it is considered to be in the public interest) to appeal to the Court of Appeal against decisions made by the court such as a decision not to make or to revoke or not to review an order.

(2) On appeal the Court of Appeal should have the power:

if it thinks that the order should have been made/not made, revoked/not revoked, or reviewed/not reviewed, to quash any order made at the original hearing; and/or
in substitution, to make some other order warranted in law (whether more or less severe) as it thinks ought to have been made; or
if it thinks that it is appropriate and in the interests of justice to do so, to quash the order made at the original hearing and remit the matter to the Supreme Court; or
in all other cases, to dismiss the appeal.

The Supreme Court should be required to hear and determine the matter in accordance with law and any such directions.

(4) Where a new hearing is directed or a matter is remitted, the Court of Appeal should have the power to make an interim order.

(6) The Court of Appeal should have the power to extend the period in which the notice of appeal must be filed.

3.21 Breach Provisions

The Current Legal Framework

Victorian Extended Supervision Scheme

3.21.1 The Victorian extended supervision scheme provides that an offender who breaches a condition of the order, without reasonable excuse, is guilty of an indictable offence carrying a maximum penalty of five years’ imprisonment.^[917]

3.21.2 The Secretary must give the offender at least 14 days’ notice of the intention to file a breach charge but may dispense with this period of notice if the Secretary considers that a charge should be filed without delay, having regard to the seriousness of the alleged breach.^[918]

3.21.3 Once the charge is filed, an application for a summons to appear or a warrant to arrest the offender may be made to the Magistrates’ Court. A summons directs the offender to appear at the court that made the extended supervision order. If a warrant is issued, the offender can be brought before a bail justice or before the court that made the extended supervision order.^[919]

3.21.4 The current legislation does not allow the court to alter an extended supervision order if the offender has breached the order. The court can sentence the offender if he or she is convicted of the offence of breach.^[920] If the offender is sentenced to a term of imprisonment, the ESO is suspended for the period during which the offender is incarcerated. The same applies if an offender is sentenced to a term of imprisonment for an unrelated offence.^[921] The ESO is suspended for any period during which the offender is imprisoned and the time spent in gaol cannot be taken into account in calculating the period of the order that remains.^[922] Under the current ESO scheme, two offenders have been convicted of breach.^[923]

Queensland and Western Australia

3.21.5 In contrast to the Victorian scheme, which in most situations requires notice to be given of an intention to file a breach charge, in Queensland and Western Australia, if a police officer or corrective services officer reasonably suspects that an offender who is on a supervision order (or interim supervision order in Queensland) is likely to contravene, is contravening, or has contravened a condition of the order, the officer may, by a complaint to a magistrate, apply for a summons requiring the offender to appear before the Supreme Court, or apply for a warrant to arrest the offender to bring him or her before the Supreme Court.^[924]

3.21.6 In Queensland, the magistrate must issue the summons or warrant if satisfied that the grounds for issuing it exist.^[925] Similarly, in Western Australia, the magistrate must issue the summons or warrant if satisfied that there are reasonable grounds for the suspicion.^[926] In both jurisdictions a warrant can only be issued if the complaint is under oath and the magistrate is satisfied that the offender would not appear in answer to a summons. The magistrate may refuse to issue the warrant if he or she considers that issuing it would be unjust. The summons or warrant must state the suspected contravention in general terms.^[927]

3.21.7 In Queensland, if the court is satisfied, on the balance of probabilities, that an offender is likely to contravene, is contravening, or has contravened his or her supervision order (or interim supervision order), the court may:
- amend the conditions of the supervision order or interim supervision order;
- rescind a supervision order and make a continuing detention order;
- rescind an interim supervision order and make an interim order for detention in custody for the period stated in the order; or

• make any other order it considers appropriate to achieve compliance with the supervision order or interim supervision order, or to ensure adequate protection of the community.^[928]

3.21.8 A bill was introduced into the Queensland parliament on 17 April 2007 which, if passed, would alter the process and consequences of breach of a supervision order (or interim supervision order) under that scheme.^[929] Under the amendments proposed, the police would no longer be able to apply for a summons in relation to a prisoner whom they suspect is likely to contravene, is contravening, or has contravened a condition of the order. A warrant returnable to the Supreme Court would be the only option available.^[930] On return of the warrant, the court would only be able only release the offender from custody if the offender is able to satisfy the court (on the balance of probabilities) that ‘his or her detention in custody pending the final decision is not justified because exceptional circumstances exist.’^[931] This change would place the onus on the offender to establish why an interim detention order should not be made.

3.21.9 The bill also proposes changes to the powers of the Supreme Court on hearing the breach. While the powers outlined above would be retained, the onus would be on the offender to establish, on the balance of probabilities, that the adequate protection of the community can, despite the contravention of the order, be achieved under a supervision order. If the offender is unable to meet this threshold, the court would have to place the offender on a detention order.^[932]

3.21.10 This bill also proposes to create a new offence of breaching a supervision order or interim supervision order. The maximum penalty for this new offence would be two years’ imprisonment.^[933]

3.21.11 In Western Australia, if the court is satisfied on the balance of probabilities that an offender is likely to contravene, is contravening, or has contravened his or her supervision order, the court may:
- make an order amending the conditions of the supervision order and—if the court considers it appropriate to achieve compliance with the supervision order or necessary to ensure adequate protection of the community—make any other order; or

• if the court is also satisfied that there is an unacceptable risk that if a continuing detention order were not made, the offender would commit a serious sexual offence, the court may order that the offender be detained in custody for an indefinite term for control, care or treatment.^[934]

Issues and Consultation

3.21.12 In consultations, concerns were raised by those with practical experience of the current ESO scheme that the process for responding to suspected breaches of conditions is too cumbersome in comparison to the process for responding to breaches of parole.^[935] Inability to respond quickly to a suspected breach of an order may place the safety of the community at risk. On the other hand, an offender on a post-sentence order is no longer under sentence, unlike an offender on parole. Therefore it could be argued that the breach process needs to be more rigorous in protecting the rights of an offender.

3.21.13 There is also a need to distinguish between breach by further offending and breach of conditions, and between serious versus less serious breaches. Generally, in administering sentencing orders, a distinction is made between ‘reportable breaches’ of conditions, which may result in formal breach proceedings, and ‘non-reportable breaches’, which may result in a warning only. This allows some flexibility in the way in which the state responds to breaches.

3.21.14 A further issue is whether a separate offence of breach of a post-sentence order serves any useful purpose. The existence of separate breach offences in the context of sentencing orders has been criticised as constituting a form of ‘double jeopardy’, or in the case of breach by further offending, ‘triple jeopardy’: the offender is punished for the original offence which brought him or her before the court, can receive a separate and additional punishment for the offence of breach, and can also be sentenced for the offence or offences constituting the breach.^[936] The Freiberg Sentencing Review suggested that the breach offence appears to serve primarily a procedural rather than punitive purpose, and recommended that breach of orders should no longer constitute a separate criminal offence.^[937] In the context of post-sentencing orders, it could further be argued that offenders should not be subject to criminal proceedings for the breach of a condition of a post-sentence order—the purpose of which is intended to be the protection of the community rather than the punishment of the offender.

3.21.15 On the other hand, there is a danger that post-sentence orders would have little force if a separate offence of breach of conditions did not exist—particularly in circumstances where an offender breaches the order in some way other than by further offending. In the absence of consequences for a failure to comply with the conditions of the order, there may be few incentives for an offender to comply. For example, in circumstances where an offender broke a curfew, all the Secretary, the Adult Parole Board or the proposed HRO Board would be able to do would be to increase and/or tighten the conditions of the order, with the hope that the offender will comply with these conditions in future. If there were a form of continuing detention, there might also be the power to apply to have a detention order substituted for the existing supervision order. Because the purpose of post-sentence orders is the protection of the community, it could be argued, there needs to be an effective means of encouraging offenders’ compliance.
3.21.16 If a separate offence of breach is retained, consideration will also need to be given to the appropriate maximum penalty. While the current offence of breach of an ESO is punishable by up to five years’ imprisonment, if post-sentence orders are of shorter duration, such as two years as recommended in this Report, a maximum penalty of five years for the offence of breach could be seen as excessive. However, some might argue that the length of an order is unrelated to the question of the appropriate penalty for non-compliance.

3.21.17 Retaining a substantial penalty for the offence of breach could also be viewed as unnecessary where the behaviour that breaches the order—including behaviour preparatory to the commission of more serious offences—constitutes a separate offence for which the offender can be convicted and sentenced. For example, convicted sex offenders who are found loitering in areas where children are likely to be present can be charged and sentenced for a separate offence under the Crimes Act 1958 (Vic).^[938]

3.21.18 Examining comparable offences may provide some guide. The maximum penalty for the offence of breach shortly to be introduced under the Queensland scheme is two years’ imprisonment. Offences under the Sex Offenders Registration Act 2004 (Vic) (including applying for, or engaging in child-related employment and failing to comply with reporting obligations without a reasonable excuse),^[939] which arguably cover similar behaviour to post-sentence orders, also attract a maximum penalty of two years’ imprisonment, or 240 penalty units. Breach of child protection prohibition orders which are available in New South Wales and Western Australia, is also punishable by up to two years’ imprisonment.^[940]

The Discussion Model

3.21.19 The discussion model aimed to simplify the process for responding to breaches of supervision orders by giving police officers a power of arrest in circumstances where they reasonably suspect that an offender has contravened a condition of his or her supervision order.
3.21.20 On the hearing of a breach of an order, it was proposed that the court have the power to:
- amend the conditions of the supervision order/interim supervision order;
- rescind a supervision order and make an continuing detention order; or
- make any other order the court considers appropriate to achieve compliance with the supervision order/interim supervision order or to ensure adequate protection of the community.
3.21.21 The discussion model left open the question of whether breach of an order should constitute a separate offence.

The Council’s View

3.21.22 The Council remains of the view that there should be a more streamlined approach to dealing with breaches than exists under the current ESO scheme. For this reason we recommend that the police should be able to exercise a power of arrest if they reasonably suspect that an offender has breached a post-sentence order. In circumstances where it is appropriate for a summons to be issued to the offender, the current notice period of 14 days should be dispensed with. While we are sympathetic to the criticisms of retaining separate breach offences, on balance we believe it necessary in this case to retain the offence to ensure that offenders can be dealt with effectively and expeditiously.
3.21.23 The Council is generally supportive of there being greater flexibility in dealing with breach of conditions. For this reason we believe the legislation should support the ability of the High-Risk Offenders Board to distinguish between minor breaches, and more serious breaches of HRO orders.

3.21.24 In the case of offenders on a detention and supervision HRO order (or interim detention and supervision HRO order), the Board should have the power to recall an offender to detention. If the Board determines it is appropriate for the offender to continue to be supervised in the community, the Board should be permitted to amend the conditions of the order to ensure the continuing safe management of the offender’s risk, such as, for example, by applying more stringent supervisory conditions. We suggest that the provisions relating to cancellation of parole and breach of a home detention order in the Corrections Act 1986 (Vic) provide a possible guide as to how this could be managed.^[941]

3.21.25 Formal proceedings for breach of a detention and supervision HRO order could also be initiated. In this case the court should have the power to sentence the offender for the offence, or to make no order. We recommend that the HRO order should be suspended in the same circumstances as are currently provided for under section 19 of the Serious Sex Offenders Monitoring Act 2005 (Vic), including where the offender is sentenced to serve a term of imprisonment.
3.21.26 In the case of offenders subject to a supervision HRO order only (or an interim supervision HRO order), the High-Risk Offenders Board should be able to amend the conditions of the order to ensure the continuing safe management of the offender’s risk, or in the case of minor breaches, to confirm the existing conditions.
3.21.27 As for breach of a detention and supervision HRO order, there should be a power to initiate formal proceedings for breach of a supervision HRO order. In addition to the power to sentence the offender for the breach, the Council recommends that the powers of the Supreme Court in these circumstances should be similar to those which currently exist in Queensland, but excluding those that relate to the variation of conditions, namely:
- to rescind a supervision HRO order and make a detention and supervision HRO order;
- to rescind an interim supervision HRO order and make an interim detention and supervision HRO order; or

• to make any other order the court considers appropriate to achieve compliance with the supervision HRO order or interim supervision HRO order, or to ensure adequate protection of the community.^[942]

3.21.28 Under our proposals, the court would also have the power to confirm the existing supervision HRO order in circumstances where it considers that the making of a detention and supervision HRO order, or an interim detention and supervision HRO order, would be inappropriate.

3.21.29 The Council notes the developments in Queensland that would create a presumption in favour of detention on breach of an order, but has concerns with this approach. While we agree that the court should have the power to rescind a supervision HRO order and make a detention and supervision HRO order, where this is appropriate, we question whether there is necessarily such a clear link between breach of conditions, and the offender’s level of risk to the community as to justify the application of a reverse onus.^[943] In our view, there may be breaches of conditions which do not correlate to an increased risk that the offender will reoffend and which can be dealt with by other means as outlined above.

3.21.30 If the existing ESO scheme is reformed, rather than replaced, and the court is given the power to set the conditions of the order, the Council recommends that the powers on breach should be the same as those which exist under the current Queensland scheme.
3.21.31 Under a reformed ESO scheme, we also believe that it is necessary to retain a separate offence of breach.
3.21.32 Breach by further offending of a ESO or a HRO order would result in the offender being sentenced for the new offence or offences. In the case of an offender who is sentenced to a term of imprisonment, the order would be suspended for the period of the sentence.
3.21.33 As the maximum term of orders under either a reformed ESO scheme, or new HRO scheme will be two years, we suggest that a lower maximum penalty than that which currently applies to breach of ESOs may be appropriate. We note that in the case of more serious breaches, where an offender has committed further offences, the court will have the power to sentence the offender for the substantive offences. Breach of conditions other than by further offending also may expose the offender to tighter conditions being imposed, or in the case of a HRO order, detention. We suggest that the two year maximum penalty that currently applies to offences committed under the Sex Offenders Registration Act 2004 (Vic), is an appropriate guide to the level at which this penalty should be set.

Recommendation 30: Breach

30—A Reformed Extended Supervision Scheme

(1) The offence of breaching an extended supervision order should be retained. Consideration should be given to lowering the maximum penalty for this offence to two years’ imprisonment.

(4) If established, the High-Risk Offenders Board on breach of an extended supervision order, should be permitted to vary any instruction or direction given to the offender.

(7) Section 19 of the Serious Sex Offenders Monitoring Act 2005 (Vic), relating to the suspension of extended supervision orders, should continue to apply.

30—B New High-Risk Offender Scheme

(1) Breach of a high-risk offender order should constitute an offence. The maximum penalty for this offence should be two years’ imprisonment.

(2) The police should be able to exercise a power of arrest, if they reasonably suspect (for reasons including the advice of a corrections officer or the High-Risk Offenders Board) that an offender who is on a high-risk offender order has breached a condition of that order. The offender should be required to be brought before a court as soon as practicable.

(3) There should also be a power, in circumstances where it is not considered necessary for the offender to be arrested, for a charge to be filed for the issue of a summons to be made to the registrar at any venue of the Magistrates’ Court. There should be no requirement for advance notice of an intention to file a charge against the offender for the breach offence.

(4) On breach of a detention and supervision high-risk offender order, the High-Risk Offenders Board should have the power to:

recall the offender to detention, until such time as the Board may consider it safe for the offender to be supervised in the community;
allow the offender to remain in the community, but vary any instruction or direction given to the offender; or
make no order.

(5) On breach of a supervision high-risk offender order, the High-Risk Offenders Board should have the power to:

vary any instruction or direction given to the offender; or
make no order.

sentence the offender for the offence of breach and confirm the existing order; or
confirm the existing order.

(7) The powers of the Supreme Court on breach of a supervision high-risk offender order, in addition to sentencing the offender for the offence of breach, should be to:

rescind a supervision high-risk offender order and make a detention and supervision high-risk offender order;
rescind an interim supervision high-risk offender order and make an interim detention and supervision high-risk offender order; or
confirm the existing supervision high-risk offender order (or interim supervision high-risk offender order) in circumstances where it considers that the making of a detention and supervision high-risk offender order, or an interim detention and supervision high-risk offender order would be inappropriate.

(8) On breach of a high-risk offender order, Corrections Victoria should also be permitted to apply to the Board to have the conditions of the order varied.

3.22 Additional Safeguards

Introduction

3.22.1 In this section we discuss some of the additional safeguards that we believe should be included in a post-sentence scheme, including:
- measures to ensure transparency in the operation of the scheme, such as the production of annual reports; and
- protections against the disclosure of information.
3.22.2 Any scheme that involves the detention of individuals by the state requires transparency on the part of those making the decision as to who is to be detained and on the part of those administering the scheme. If a new high-risk offender scheme is introduced—or if the current extended supervision scheme is reformed—it is important that the scheme operate in a transparent way, both to promote public confidence in the scheme, and to ensure that its operation and effectiveness can be properly assessed. Examples of measures that may help to ensure that the scheme operates in an open and transparent way discussed in this Report include:
- establishing an independent review body to oversee the operation of the scheme, such as the proposed Risk Management Monitor;
- making the reasons for decisions to make an order publicly accessible (even in cases where identifying details are suppressed);
- introducing statutory reporting conditions, requiring those responsible for the administration of the scheme to provide information on the scheme, including the production of annual reports; and
- requiring the legislation to be independently evaluated after a fixed period.
3.22.3 We discuss each of these briefly below. The role and functions of the Risk Management Monitor are discussed in Section 3.6.
3.22.4 It is also important to prevent inappropriate disclosure of information, to protect the rights of both past victims and offenders.

Publication of Reasons for Decisions

The Current Extended Supervision Scheme

3.22.5 The majority of applications for extended supervision in Victoria have been heard in the County Court (to date, only one has been heard in the Supreme Court). The Victorian scheme requires the court to provide reasons for its decision to make an order.^[944] However, while County Court transcripts generally are publicly available upon request, there is no easy way to obtain them (for example via the Internet). In contrast, in the one case heard in the Supreme Court, the court’s reasons were published on the Internet. This reflects the Supreme Court’s usual practice of making decisions publicly available. Arguably, if the reasons for the court’s decision are not readily accessible, they are of limited value for the purpose of public scrutiny.

3.22.6 As discussed in Section 3.16, while the power to make an ESO rests with the courts, the conditions of ESOs are set by the Adult Parole Board and the Secretary to the Department of Justice. Neither the Secretary nor the Adult Parole Board is required to provide, or publish, reasons for the conditions they set. Further, the Court of Appeal has no power to vary any of the conditions of the order, nor can it return the order to the lower court or to the Secretary or Adult Parole Board directing[945]em to do so.⁹⁴⁵

New South Wales, Queensland and Western Australia

3.22.7 Applications for post-sentence orders in New South Wales, Queensland and Western Australia must be heard in the Supreme Court. As the Supreme Courts in all Australian jurisdictions make their decisions publicly available on their websites and through other legal information websites,^[946] decisions in cases under these schemes are more easily accessible.^[947]

3.22.8 The legislation in all three states, as in Victoria, provides that reasons must be given for decisions.^[948] The majority of the High Court in Fardon referred to the requirement that the court give detailed reasons for its decision—reasons which are ‘inevitably subject to public scrutiny’—as an important safeguard.^[949] Although there is provision for suppression orders to be made in these jurisdictions, most of the decisions have been made publicly available, even in cases where information about the offender’s identity is suppressed. For example, Appendix 3 provides the citations for some of the published cases under the Queensland scheme.

Issues and Consultation

3.22.9 A number of those who made submissions addressed the issue of access to reasons for decisions, and the importance of such access in a transparent scheme.

3.22.10 The South Eastern Centre Against Sexual Assault supported court decisions being ‘published in an accessible manner’.^[950] South Eastern CASA submitted that ‘it is important that there is scrutiny of State actions when it involves depriving people of their liberty on the basis of something they might do’.^[951] Similarly, Victoria Police commented:

it is imperative to have an open and accountable Justice System that has sufficient flexibility to deal with sensitive cases and issues with open and accountable practices. Victoria Police believes that any post-sentence model should be sufficiently open and transparent, but a review of systems should be built into any model to ensure that information is available to the community on such matters.^[952]

3.22.11 The OPP also supported the publication of the reasons for decisions (with identifying details suppressed) as a means of enhancing transparency.^[953]

The Council’s View

3.22.12 Regardless of whether a suppression order is granted in a particular case, the Council is of the opinion that the reasons for decisions (without identifying information) should be published and easily accessible. In our view, this is an essential component of subjecting the scheme to public scrutiny. Accessibility of reasons would enhance the scheme’s compatibility with the Victorian Charter of Human Rights and Responsibilities, which requires that judgments and decisions made by a court or tribunal in a criminal or civil proceeding be made public unless the best interests of a child otherwise requires, or a law other than the Charter otherwise permits.^[954]

Recommendation 31: Reasons for Decisions

31—A Reformed Extended Supervision Scheme

31—B New High-Risk Offender Scheme

Suppression and Disclosure of Information

Suppression Orders

3.22.13 Under the Victorian scheme, the court has the power to grant a suppression order if it is satisfied that it is in the public interest to do so. The court may prohibit the publication of:
- any evidence given in the proceeding;
- the content of any report or other document in the proceeding; and

• any information that may enable the identification of the offender or another person who has appeared or given evidence in the proceeding.^[955]

3.22.14 It would appear that suppression orders of some form have been granted in relation to most of the applications for extended supervision that have been heard in Victoria.

3.22.15 The contravention of a suppression order imposed under the scheme is punishable by 500 penalty units (around $54,500) in the case of a body corporate or in any other case 120 penalty units (around $12,840), one year’s imprisonment, or both.^[956]

3.22.16 In Victoria there are also general provisions that allow for the making of suppression orders by each of the court jurisdictions.^[957] The penalty for breaching a suppression order made under these provisions is 1000 penalty units (approximately $107,000) or imprisonment for three months.^[958]

3.22.17 A separate offence has been created prohibiting the publication of material that contains any information likely to lead to the identification of a victim of a sexual offence. A person who is guilty of an offence against this section is liable to 20 penalty units (around $2,149) or four months’ imprisonment (if the offence is committed by a natural person), or by 50 penalty units (around $5,372) if the offence is committed by a corporation.^[959] In circumstances where a corporation is guilty of this offence, a person who is a member of the governing body, a managing director, or a secretary of the company is treated as having committed the offence and is liable to the penalty or imprisonment or both, unless he or she proves that the offence by the company took place without his or her knowledge or consent.^[960]

Disclosure of Information

3.22.18 The ESO scheme allows for the disclosure and sharing of information between the Adult Parole Board, the Secretary to the Department, and any other person employed in the Department of Justice if there are reasonable grounds for believing that it is necessary for either the Secretary or the Board to exercise their functions under the Act.^[961] The Adult Parole Board has a further obligation to ensure that personal information obtained by it under the Act is only disclosed by it (other than provided for under the Act or any other Act or law) for the purpose of law enforcement or judicial functions or activities, and then only to a government department, statutory authority or court.^[962]

3.22.19 There are also general provisions in the Corrections Act 1986 (Vic) prohibiting certain people from disclosing confidential information, including 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, as well as information in reports provided to a court. These provisions are discussed at [3.7.49]. The Sex Offenders Registration Act 2004 (Vic) similarly prohibits the unauthorised disclosure of any personal information i[963]he Register.⁹⁶³ Breach is an offence punishable by 240 penalty units, or two years&#8217[964]mprisonment.⁹⁶⁴

Issues and Consultation

3.22.20 As discussed at [3.17.47], the disclosure of information, particularly concerning an offender’s place of residence, can have a number of harmful effects, including disrupting an offender’s accommodation arrangements and forcing him or her to relocate. As a result, the offender may be at higher risk of reoffending. Similarly, the disclosure of information which identifies a victim of crime may be extremely traumatic for that person.

3.22.21 Some submissions supported the suppression of offenders’ identifying information as an essential element of ensuring the long-term protection of the community. The Mental Health Legal Centre, which concurred with this position, suggested that suppression is ‘in the public interest and [may] ensure successful rehabilitation and reintegration into the community’.^[965]

3.22.22 Some considered suppression to be such an important part of the scheme that it should be mandatory rather than discretionary. At the roundtable with legal professionals and police, the view was expressed that the reporting of these orders should be prohibited. Similarly, the OPP submission suggested that:

If a new post-sentence detention scheme is introduced in Victoria, there should be legislative provision for suppression of the offender’s name and details which may reveal his or her identity, as well as the contents of evidence and reports produced at any hearings.

If one of the purposes of the scheme is to facilitate the rehabilitation of high-risk offenders, then consideration might be given to mandatory suppression of identifying details, in order to assist the offender’s rehabilitation and possible reintegration into the community.^[966]

3.22.23 It was also suggested that the scheme should create an offence for disclosing the details of an offender placed on an order under the scheme. The Office of Public Prosecutions submitted:

Particularly if the legislation provides for mandatory suppression of identifying details, it might be appropriate for an offence to be created dealing with disclosure of the identifying details of an offender placed on a high-risk offender order, and victims should be warned that such disclosure may constitute an offence.^[967]

3.22.24 Victoria Legal Aid strongly supported strengthening suppression rules, including the creation of an offence where suppression orders are breached.

In the past, the press has published inflammatory articles identifying the name or whereabouts of several offenders (including VLA clients) on extended supervision orders. The community response has been extremely negative—ranging from community outcry to outright vigilantism. ‘Outing’ offenders in this way has effectively sabotaged the extended supervision order scheme by preventing offenders from living in the community. The scheme has become a de facto continued detention scheme. VLA suggests that the government should strengthen suppression rules about extended supervision orders. For example:

Automatic suppression orders preventing publication of information that identifies any offender on a continued detention order (including the name, place of employment, address or other personal details).
Sentences of imprisonment for senior managers of media organisations that breach suppression orders.

• Provisions to facilitate the investigation of information ‘leaks’ by justice sector employees.^[968]

3.22.25 Apart from action for breach of suppression orders, there may also be other avenues available to an offender or victim whose privacy is breached. For example, in the recent Victorian County Court decision of Jane Doe v Australian Broadcasting Corporation & Ors,^[969] a victim of crime was awarded $234,000 in damages for the disclosure of her identity by the ABC, which reported on the sentencing of her husband. The court found that the ABC, whose actions were also contrary to the Judicial Proceedings Report Act 1958 (Vic),^[970] was liable for negligent publication of information identifying the victim as a victim of a sexual assault, breach of confidence resulting from the publication of confidential information, and breach of the victim’s right to privacy. It is possible that both victims and offenders who have their identities unlawfully disclosed by the media may choose to pursue similar claims in the future.

3.22.26 While public disclosure of information about the offender is potentially damaging, the sharing of information between agencies involved in the management of offenders clearly is essential to the effective operation of the scheme.

The Council’s View

3.22.27 A balance must be struck between the need for reporting and transparency, and the need to suppress sensitive information in appropriate cases. There also should be adequate arrangements in place providing for the exchange of information between agencies involved in the management of an offender, but safeguards to ensure that information is not disclosed inappropriately.

3.22.28 The Council recommends that, as for the existing ESO scheme, a new HRO scheme should allow the suppression of details that might identify offenders or victims. There should be a presumption that any details which could identify the offender or victim should be suppressed in any published reasons for decisions. Contravention of an order should constitute an offence, punishable by 1000 penalty units in the case of a body corporate, or in any other case 240 penalty units, two years’ imprisonment, or both. We note that these penalties are consistent with the penalty that applies to the disclosure of information in the sex offenders register under the Sex Offenders Registration Act 2004 (Vic), and in the case of a body corporate, for breach of suppression orders under the courts Acts. We further suggest that consideration be given to extending liability to a member of the governing body, a managing director, or a secretary of a corporation unless it is proved that the offence by the company took place without that person’s knowledge or consent.^[971]

3.22.29 To enable the proper operation of orders, the Council recommends that the legislation should provide for the exchange of information concerning an offender between the HRO Board, the Department of Justice, the Risk Management Monitor and the Adult Parole Board, and for the HRO Board to be able to disclose information to government departments, statutory authorities and courts. However, we suggest that the purposes for which information can be disclosed to these bodies could usefully be expanded beyond law enforcement and judicial functions or activities, to include functions directly related to the management of the offender (such as locating appropriate accommodation).
3.22.30 As for information disclosed by the Adult Parole Board, we recommend that the disclosure of confidential information, including information given to the HRO Board that is not disclosed in a decision of the Board or in any reasons given by the Board, should be prohibited except to the extent necessary to perform official duties, powers or functions of that office (see further [3.7.55]). We recommend that disclosure of confidential information other than authorised should attract a similar penalty to contravention of suppression orders (240 penalty units, or two years’ imprisonment, or both).
3.22.31 We note concerns about possible information leaks in dealing with sensitive information concerning this group of offenders. To protect against unauthorised disclosures, we suggest that guidelines should be developed concerning who should be permitted access to information and what information should be permitted to be disclosed. These guidelines should be developed in consultation with the HRO Board, the Risk Management Monitor, the relevant screening body (the ESO Review Board or HRO Screening Committee), and other agencies and individuals likely to be directly involved with the management of these offenders. The number and circumstances of any unauthorised disclosures of information could also be included in any annual reports produced and in any evaluations conducted on the operation of the scheme (see further [3.22.36]–[3.22.39], [3.22.42]).

Recommendation 32: Disclosure of Information

32—A Reformed Extended Supervision Scheme

(1) The current provisions for the making of a suppression order under s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic) should be retained.

(2) The court should continue to have the power to grant a suppression order if it is satisfied that it is in the public interest to do so.

(3) The court should be permitted to prohibit the publication of information including:

any evidence given in the proceeding;
the content of any report or other document in the proceeding; and
any information that may enable the identification of the offender, a victim or another person who has appeared or given evidence in the proceeding including name, place of residence, place of employment and other details.

(4) Under the scheme breaching a suppression order should be an offence.

(5) The maximum penalty should be 1000 penalty units in the case of a body corporate, or in any other case 240 penalty units, two years’ imprisonment, or both.

(b) Unauthorised disclosure of confidential information should be an offence punishable by 240 penalty units or two years’ imprisonment.

32—B New High-Risk Offender Scheme

(1) The court should have the power to grant a suppression order if it is satisfied that it is in the public interest to do so.

(2) The court should be permitted to prohibit the publication of information including:

any evidence given in the proceeding;
the content of any report or other document in the proceeding; and
any information that may enable the identification of the offender, a victim or another person who has appeared or given evidence in the proceeding including name, place of residence, place of employment and other details.

(b) Unauthorised disclosure of confidential information should be an offence punishable by 240 penalty units, or two years’ imprisonment.

Annual Reporting

The Current Extended Supervision Scheme

3.22.32 The Adult Parole Board is required to report annually to the Minister on the number of offenders in respect of whom an extended supervision order was made, and on the operation of the Serious Sex Offenders Monitoring Act 2005 (Vic) during the relevant period.^[972] The Minister may also require the Board to provide information on these matters on request,^[973] and to provide reports and recommendations concerning offenders who are serving a prison sentence, or who are the subject of an extended supervision order or an application for an ESO.^[974] The Adult Parole Board’s 2005–06 Annual Report included information on the number of orders made by the Supreme Court and by the County Court, the duration of the orders and the number suspended (due to breach).^[975]

New Zealand

3.22.33 In New Zealand, the Department of Corrections, in its annual reports, provides information about the number of health assessments ordered prior to the making of an extended supervision order, the number of applications for extended supervision made to the courts, the number of offenders currently on extended supervision orders, and the number of applications made to the Parole Board for special conditions.^[976] The reports also contain information as to whether particular quality control standards have been met, for example whether applications for extended supervision have been made within the statutory time frames and what percentage of offenders on extended supervision have a sentence plan prepared and managed to the standards detailed in relevant guidelines.^[977]

Issues and Consultation

3.22.34 There was broad support for annual reporting among those who addressed the issue in their submissions.^[978]

3.22.35 The provision of annual reports may serve an important function in ensuring the transparency of the scheme. Reporting on the compliance with guidelines and standards, as required in New Zealand, may also allow an assessment to be made about how effectively the scheme is operating.

The Council’s View

3.22.36 The Council believes that a requirement for information to be published annually is critical to a fair and transparent post-sentence scheme. This will allow the operation of the scheme to be properly monitored and assessed.
3.22.37 We recommend that the HRO Board and the Risk Management Monitor be obliged to publish information each year about the operation of the scheme and the performance of their statutory functions.
3.22.38 Information that might usefully be provided in these reports could include the number of eligible offenders screened, the number of applications made, the number of interim orders made, and the number of people managed under the legislation. We further suggest that the reports should include an assessment against performance standards set for measuring the efficacy of the scheme, as has occurred in New Zealand. Relevant matters could include whether applications for post-sentence orders have been made within the statutory time frames, what percentage of offenders have had an offender management plan prepared, and the number and circumstances of unauthorised disclosures of information.

3.22.39 The HRO Board and Risk Management Monitor might also be given the power to provide advice to the Minister about any issues arising in the execution of their functions that may affect the management of offenders, such as resource issues. We note that the Serious Offenders Review Council in New South Wales has a similar advisory role in relation to the security classification and placement of serious offenders, and developmental programs provided for these offenders.^[979]

Recommendation 33: Annual Reports

33—A Reformed Extended Supervision Scheme

the numbers of eligible offenders screened;
the number of assessment reports;
the number of applications made, and of these, how many were successful;
the number of interim orders made;
the number of applications for variation, review and appeals;
the total number of people managed under these orders, and how long they have been subject to orders;
the number and type of breaches, and action taken on breach;
the type of conditions ordered; and
whether performance and quality control standards have been met (including whether applications have been made within the statutory timeframes, what percentage of offenders have had offender management plans prepared, and the number and circumstances of any unauthorised disclosures of information).

33—B New High-Risk Offender Scheme

the numbers of eligible offenders screened;
the number of assessment reports;
the number of applications for high-risk offender orders, and of these, how many were successful;
the number of interim orders made;
the number of applications for variation, review and appeals;
the total number of people managed under high-risk offender orders, and how long they have been subject to orders;
the nature of orders made (supervision only or detention and supervision);
the number and type of breaches, and the action taken on breach;
the type of conditions ordered;
whether performance and quality control standards have been met (including whether applications have been made within the statutory timeframes, what percentage of offenders have had offender management plans prepared, and the number and circumstances of any unauthorised disclosures of information).

Evaluation of the Scheme

Issues and Consultations

3.22.40 The lack of evidence about the effectiveness of the ESO scheme was raised frequently in our consultations.^[980]

3.22.41 The New South Wales scheme requires the responsible Minister to review the Act after it has been in operation for a period of three years to determine ‘whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives’.^[981] The Minister may also require the Commissioner of Corrective Services to provide information about how the Commissioner’s functions in administering the Act are being exercised.^[982] A report on the outcome of the review must be tabled in both houses of the New South Wales Parliament within 12 months after the expiration of the three-year period.^[983] In the second reading speech, the Minister for Police said that the reason for including this in the Act was ‘to ensure that it is being used appropriately, and achieving what it is designed to accomplish’.^[984]

The Council’s View

3.22.42 The Council recommends that a reformed extended supervision scheme or new HRO scheme should be independently evaluated after it has been in operation for a period of five years to determine the value of, and continuing need for, such a scheme. We believe that a thorough review of how the legislation has operated in practice is a critical safeguard given the extraordinary nature of post-sentence schemes.

Recommendation 34: Evaluation

34—A Reformed Extended Supervision Scheme

34—B New High-Risk Offender Scheme

(1) The legislation should be independently reviewed after it has been in operation for a period of five years to evaluate the effectiveness of, and continuing need for the scheme.

3.23 Indefinite Sentences

The Current Legal Framework

3.23.1 In Victoria, a court can impose an indefinite sentence on an offender following an application by the Director of Public Prosecutions or on its own initiative.^[985] The criteria for imposing an indefinite sentence are as follows:

• the offender must be 21 years or over at the time of being sentenced;^[986]

• the offender must have been convicted of a ‘serious offence’ (which includes a range of violent offences including murder, manslaughter, intentionally causing serious injury, armed robbery, rape, and sexual offences against children);^[987] and

the court must be satisfied to a high degree of probability that the offender is ‘a serious danger to the community’ due to:
- his or her character, past history, age, health or mental condition;
- the nature and gravity of the crime committed; and

o any special circumstances.^[988]

3.23.2 In deciding whether the offender poses a serious danger to the community, the judge must take into account a number of factors, including:
- whether the nature of the offence is exceptional;
- relevant information from the transcript of earlier court cases against the offender involving serious crimes;
- medical, psychiatric and other relevant reports;
- the risk of serious danger to members of the community if an indefinite sentence were not imposed; and

• the need to protect members of the community from that risk.^[989]

3.23.3 Under the current scheme, the court may request that reports are prepared by a number of different sources, but there is no requirement that an assessment report be provided.^[990] There is also no provision made for the court to order an offender to attend for a personal examination by a psychiatrist, psychologist or any other person, to allow for a report to be prepared, as exists under the Serious Sex Offenders Monitoring Act 2005 (Vic).^[991]

3.23.4 An offender who is sentenced to an indefinite sentence is ineligible for parole.^[992] Instead, the judge fixes a ‘nominal sentence’ equal in length to the non-parole period that would have been set had a sentence of fixed duration been imposed.^[993] The expiry of the nominal sentence triggers a review of the indefinite sentence.^[994] If the court is still satisfied at that stage that the offender poses a serious danger to the community, the sentence remains in place. The offender can apply for further reviews at three-year intervals.^[995] However, if the court believes the offender no longer poses a danger to the community, the court must discharge the sentence and order the offender to be subject to a five-year reintegration program administered by the Adult Parole Board.^[996] At the end of this period, the offender is no longer subject to any form of order.

3.23.5 To date, five offenders in Victoria have been sentenced to indefinite detention, one of whom successfully appealed and received a fixed-term sentence.^[997] All five offenders had committed sexual offences and had previous convictions for such offences. There have also been three unsuccessful applications for an indefinite sentence by the Director of Public Prosecutions.^[998]

The Discussion Model

3.23.6 In our Discussion and Options Paper, we proposed a set of changes to enable offenders on indefinite sentences to be managed similarly to offenders on HRO orders. We also suggested some amendments to improve the operation of indefinite sentences. Changes were proposed in the following three areas:
- risk assessments and offender management;
- when indefinite sentences are reviewed; and
- more flexible arrangements as to when and how the offender is released into the community.
3.23.7 Under the discussion model it was proposed that assessment reports should be prepared by accredited assessors, or by the proposed High-Risk Offenders Panel, and that the Panel should have responsibility for managing offenders on indefinite sentences.
3.23.8 As discussed earlier in this Report, the Council has concluded that under a new HRO scheme, or a reformed ESO scheme, the responsibilities of accreditation of assessors and management of offenders should be split. Under our proposals, the accreditation of assessors would be carried out by the Risk Management Monitor and the management of offenders would fall under the jurisdiction of the High-Risk Offenders Board.
3.23.9 If introduced, these arrangements could equally apply to offenders on indefinite sentences. The provision of standardised assessment reports and ongoing structured management may improve an offender’s prospects of rehabilitation and ultimately improve community safety. It would also bring the management of these offenders in line with that of other high-risk offenders.
3.23.10 The discussion model also proposed that indefinite sentences should be reviewed at least six months before the expiry of the nominal period, rather than after the expiry of the nominal period, as is the current practice. It further suggested changes to the structure of indefinite sentences to allow greater flexibility in the way offenders under such sentences are managed.

Issues and Consultation

3.23.11 There was some support for offenders on indefinite sentences being assessed and managed by the same bodies with responsibility for these functions under a post-sentence scheme.^[999] The proposal that indefinite sentences be reviewed six months before the end of the nominal period, rather than once the nominal period has expired, was also supported.^[1000] This would allow time for new plans to be drawn up for the management of an offender after the nominal period of incarceration or the offender’s supervised conditional release into the community.

3.23.12 In the Discussion Paper, changes were also proposed to the manner in which indefinite sentences are reviewed and discharged, and to existing arrangements for reintegration, to allow for more flexible management of offenders. It is difficult to assess the efficacy of the reintegration period, as at present, none of the five offenders who have been sentenced to an indefinite sentence has had his or her sentence discharged.^[1001]

3.23.13 As discussed at [2.3.59]–[2.3.60], indefinite sentences have been used sparingly in Victoria. The High Court and the Victorian Court of Appeal have recognised that as these types of sentences run contrary to the settled legal principle of proportionality, their use is appropriately confined to exceptional cases, where the use of such powers ‘is demonstrably necessary to protect society from physical harm’.^[1002] However, another possible reason why courts may have been cautious in their approach to these sentences is that there is a level of discomfort with the high threshold that must be met before an offender can be considered for release from a sentence which, after the nominal period, is designed to serve a primarily protective purpose. Further, once the five-year reintegration period is complete, there is no mechanism by which the offender can be recalled despite the original order being termed ‘indefinite’. It could be argued that the current arrangements for the release of an offender are not sufficiently flexible. There was some support for more flexible arrangements for the release of an offender on an indefinite sentence.^[1003]

3.23.14 In an earlier submission to this review, the Director of Public Prosecutions also raised an issue concerning the relationship between the indefinite sentence and serious offender provisions in the Sentencing Act 1991 (Vic).^[1004] The DPP highlighted that there is no legislative guidance as to whether a sentencing court must have regard to the serious offender provisions when determining the nominal sentence for an offender, or whether those provisions are to be taken into consideration when the indefinite sentence is reviewed at the end of the nominal period.

3.23.15 The Office of Public Prosecutions suggested that, in order to clarify this situation, the Sentencing Act 1991 (Vic) should be amended so that, where applicable, the sentencing court must make a declaration that an offender is a serious offender under the Act, even where an indefinite sentence is imposed.^[1005]

The Council’s View

3.23.16 The Council recommends that the current arrangements for applications for indefinite sentences should continue to apply, with some minor changes. Currently, the court may consider reports presented to it when considering imposing an indefinite sentence, but there is no requirement that such reports be submitted, nor any restrictions as to who can prepare such a report.^[1006] In order to ensure that courts are as informed as possible, and that the same arrangements apply to the making of an indefinite sentence as to post-sentence orders, the Council recommends that the Director of Public Prosecutions should be required to provide the court with a report from an accredited assessor prior to the making of an indefinite sentence. We further recommend that the court should be provided with a report from an accredited assessor on review of the sentence, so that an informed decision can be made in relation to the offender’s ongoing risk of reoffending. To enable this to occur, we recommend that as for post-sentence orders, provision should be made for the DPP to apply to the Court for an order requiring the offender to attend for a personal examination by an accredited risk assessor, or any other person, for the purpose of enabling that expert or other person to make a report, or give evidence, to the court.

3.23.17 With respect to the management of offenders subject to indefinite sentences, the Council believes there are some benefits to be gained by streamlining these arrangements with those that will apply to offenders subject to post-sentence orders; that is, for their administration to be handled by the same body and in a similar way. This should ensure both the similar treatment of high-risk offenders and the sharing of resources and expertise necessary for effective management of this group of offenders.
3.23.18 Consequently, the Council recommends that if a High-Risk Offenders Board is established, it should have responsibility for managing offenders on indefinite sentences from the point of sentencing. We recommend that the HRO Board should take over the management of the offenders already subject to indefinite sentences once the Board is operational.
3.23.19 In our view, the management of this group of high-risk offenders by the HRO Board will ensure that they are subject to the same form of intensive management as offenders subject to post-sentence orders. It will further ensure that their circumstances and progress are reviewed on an ongoing basis during the period of their sentence. As with offenders subject to post-sentence orders, the HRO Board will be responsible for approving offender management plans setting out the obligations of the offender while under sentence, and for reviewing the progress of offenders against their plans on an annual basis, in the same way as it would for offenders subject to post-sentence orders.
3.23.20 We recommend that the first court review should take place six months before the nominal sentence expires, to allow sufficient time to put in place any new offender management plans that may be necessary for the period after the nominal sentence has been served. To align these sentences with the duration of post-sentence orders, we further propose that there should be a court review every two years after the initial review, rather than every three years as under the current scheme. The Director of Public Prosecutions should be required to initiate all mandatory reviews. However, the offender should still be permitted to apply for a review with the leave of the court. The primary purpose of these reviews should remain determining whether the offender is still a serious danger to the community.
3.23.21 After the expiry of the nominal sentence, we recommend that the HRO Board should be permitted to manage these offenders in a similar way to offenders subject to detention and supervision HRO orders. Under our proposals, the HRO Board would have full control of the offender, including making decisions about whether the offender should be subject to periods of supervised release. In our view this will increase the flexibility of indefinite sentences and provide more incentive to these offenders to reduce their risk, while ensuring that they remain under the supervision and control of the HRO Board at all times. We also believe this would increase the level of consistency of these provisions with the Victorian Charter of Human Rights and Responsibilities. Once the offender has served the nominal sentence, he or she would be managed for the remainder of the sentence (which is intended to serve a primarily protective purpose) in the least restrictive way necessary for community protection.
3.23.22 If, on review, the court is no longer satisfied that the offender is a serious danger to the community, we suggest that the current arrangements—allowing for the discharge of the order and the offender to be made subject to a five-year reintegration program—should continue to apply.
3.23.23 We further note the point raised by the Director of Public Prosecutions concerning the existing ambiguity in the relationship between the serious offender provisions and indefinite sentences. While beyond the scope of our terms of reference, we believe that there is some benefit in this matter being clarified.

Recommendation 35: Indefinite Sentences

(b) The High-Risk Offenders Board should have powers consistent with those it can exercise in relation to offenders subject to detention and supervision high-risk offender orders, including:

to direct the offender to be detained in custody;
to authorise periods of supervised release in the community;
to set the conditions of any supervised release; and
to recall an offender on supervised release back to custody at any time.

(7) Information about the numbers of offenders on indefinite sentences, and their management, should be included in the information published annually by the High-Risk Offenders Board.

(8) The relationship between the serious offender provisions and the indefinite sentence provisions should be reviewed and clarified.

Appendix 1: Comparison of Australian Schemes

Table 2: Purpose

Purpose & Legislation	Vic (ESO only)	QLD (SO & CDO)	WA (SO & CDO)	NSW (ESO & CDO)
Purpose of scheme	To enhance community protection by requiring offenders who have served custodial sentences for certain sexual offences and who are a serious danger to the community to be subject to ongoing supervision while in the community.	To provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and To provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.	To provide for the detention in custody or the supervision of persons of a particular class to ensure adequate protection of the community; and To provide for continuing control, care, or treatment, of persons of a particular class.	To provide for the extended supervision and continuing detention of serious sex offenders so as: To ensure the safety and protection of the community, and To facilitate the rehabilitation of serious sex offenders.
Purpose of conditions	To ensure the adequate protection of the community by monitoring the offender; and To promote the rehabilitation and the care and treatment of the offender.	To ensure adequate protection of the community, or For the prisoner’s rehabilitation or care or treatment.	To ensure adequate protection of the community; or For the rehabilitation or care or treatment of the person subject to the order.	N/A. An extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate.
Legislation	Serious Sex Offenders Monitoring Act 2005 (Vic) [SSOMA]	Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) [DP(SO)A]	Dangerous Sexual Offenders Act 2006 (WA) [DSOA]	Crimes (Serious Sex Offenders) Act 2006 (NSW) [C(SSO)A]

Table 3: Criteria, Onus and Standard of Proof

Test of risk, proof & legislation	Vic (ESO only)	QLD (SO & CDO)	WA (SO & CDO)	NSW (ESO & CDO)
Test of risk	The offender is likely to commit a relevant offence if released in the community on completion of any custodial sentence that he or she is serving, or was serving at the time at which the application was made, and not made subject to an extended supervision order.	The prisoner is a serious danger to the community in the absence of an order (for supervision or detention)—i.e. there is an unacceptable risk that the prisoner will commit a serious sexual offence: if released from custody; or if released from custody without a supervision order being made.	The person is a serious danger to the community in the absence of an order (for supervision or continuing detention)—i.e. there is an unacceptable risk that the person would commit a serious sexual offence: if not subject to an order for supervision or continuing detention.	ESO—The offender is likely to commit a further serious sex offence if he or she is not kept under supervision. Continuing detention—The offender is likely to commit a further serious sex offence if he or she is not kept under supervision and adequate supervision will not be provided by an ESO.
Onus of proof	The Secretary to the Department of Justice	Attorney-General	DPP/Attorney-General	Attorney-General
Standard of proof	High degree of probability	The court may decide that it is satisfied that the offender is a serious danger only if it is satisfied by acceptable, cogent evidence; and to a high degree of probability; that the evidence is of sufficient weight to justify the decision.	The court has to be satisfied that the offender is a serious danger to the community by acceptable and cogent evidence; and to a high degree of probability.	High degree of probability
Legislation	SSOMA 2005 (Vic)	DP(SO)A 2003 (Qld)	DSOA 2006 (WA)	C(SSO)A 2006 (NSW)

Table 4: Application Process

Application and legislation	Vic (ESO only)	QLD (SO & CDO)	WA (SO & CDO)	NSW (ESO & CDO)
When must the order be applied for?	While offender serving custodial sentence.	In last six months of term of imprisonment.	While offender under sentence of imprisonment wholly or in part for a serious sexual offence.	In last six months of term of imprisonment.
Who applies and to which forum?	Secretary to Department to apply to court that sentenced offender for relevant offence, or the County Court where the offender was sentenced for the relevant offence in the Magistrates’ Court.	Attorney-General to apply to Supreme Court.	Director of Public Prosecutions / Attorney-General to apply to Supreme Court.	Attorney-General to apply to Supreme Court.
Legislation	SSOMA 2005 (Vic)	DP(SO)A 2003 (Qld)	DSOA 2006 (WA)	C(SSO)A 2006 (NSW)

Table 5: Interim Orders

Whether order can be made and legislation	Vic (ESO only)	QLD (SO & CDO)	WA (SO & CDO)	NSW (ESO & CDO)
Can an interim order be made?	No. However, if an offender finishes his or her sentence prior to the final hearing, the offender is served with a notice to attend the hearing. The court may also issue an arrest warrant. There is no power to supervise the offender in this period.	Yes (interim supervision or custody order)—If the court is satisfied that the final hearing may occur after the offender’s sentence has expired, the court may make an interim order that the offender’s release from custody be supervised or that the offender be detained in custody.	Yes (interim custody order)—If final hearing might occur after expiry of offender’s sentence, court may order that offender be detained in custody until the final hearing. If offender is permitted to be at liberty until the final hearing (instead of in custody), there is no provision to compel offender’s attendance at the final hearing or to supervise the offender in the community.*	Yes. The court may make an order allowing the offender to continue to be under supervision or detained in custody for a period up to 28 days after the sentence is due to expire. The interim order can be renewed but the total period under the order must not exceed 3 months.
Legislation	SSOMA 2005 (Vic)	DP(SO)A 2003 (Qld)	DSOA 2006 (WA)	C(SSO)A 2006 (NSW)

*The State of Western Australia v Latimer [2006] WASC 235 (Unreported, Murray J, 30 October 2006) [7].

Table 6: Maximum Length of Orders

Maximum length and legislation	Vic (ESO only)	QLD (SO & CDO)	WA (SO & CDO)	NSW (ESO & CDO)
Maximum length	Up to 15 years.	Continuing detention orders are indefinite. Supervision orders have effect for the period stated in the order (i.e. for fixed period).	Continuing detention orders are indefinite. Supervision orders have effect ‘in accordance with its terms’ (arguably must be for fixed period).	Until end of period specified or for 5 years.
Legislation	SSOMA 2005 (Vic)	DP(SO)A 2003 (Qld)	DSOA 2006 (WA)	C(SSO)A 2006 (NSW)

Table 7: Variation of Conditions

Power to vary and legislation	Vic (ESO only)	QLD (SO & CDO)	WA (SO & CDO)	NSW (ESO & CDO)
Power to vary conditions	There is no power for the court to amend the conditions of an extended supervision order. The Secretary and the Adult Parole Board may at any time vary an instruction or direction given as the case requires. Written notice must be given of any instruction or direction and served on the offender as soon as practicable after the instruction or direction is given or varied.	The court may, on application, amend the conditions of a SO (or interim SO) if satisfied: offender is unable to comply due to change of circumstances or the amendment is necessary or desirable for any other reason; the amended conditions are sufficient to ensure adequate protection of the community; and it is reasonable to make the amendment in all of the circumstances. Applications for the amendment of conditions of a SO (or interim SO) may be made by the offender or the chief executive (with A-G’s consent).	The court may, on application, amend the conditions of a SO if satisfied: offender is unable to comply due to change of circumstances or the amendment is necessary or desirable for any other reason; the amended conditions are sufficient to ensure adequate protection of the community; and it is reasonable to make the amendment in all of the circumstances. Applications for the amendment of conditions of a SO may be made by the offender or the chief executive officer (with the DPP / A-G’s consent).	The court may, on application, vary or revoke an extended supervision order or a continuing detention order. Applications for the amendment of supervision orders may be made by the offender concerned or by the chief executive with the Attorney-General’s consent. There has not yet been an application for amendment of conditions.
Legislation	SSOMA 2005 (Vic)	DP(SO)A 2003 (Qld)	DSOA 2006 (WA)	C(SSO)A 2006 (NSW)

Table 8: Review of Orders

Reviews	Vic (ESO only)	QLD (SO & CDO)	WA (SO & CDO)	NSW (ESO & CDO)
Mandatory reviews	Court must review ESO: no later than 3 years after first made; or at earlier first review date specified in ESO; and at intervals of no more than 3 years; or at shorter intervals specified in the ESO.	SO—there is no power for court to review a SO. CDO—the court must review a CDO: one year after order first has effect; and afterwards at intervals of no more than one year after the most recent review of order.	SO—there is no power for court to review a SO. CDO—the court must review a CDO: one year after order first has effect; and afterwards at intervals of no more than one year after the most recent review of order.	There is no automatic review of either a CDO or an ESO. An application for variation or revocation can be made at any time by offender or A-G. Commissioner of Corrective Services must provide A-G with a report on each offender subject to a CDO or ESO at intervals of ≤ 12 months.
Additional reviews	Secretary or offender (with permission of the court) may apply to court at any time for a review.	Offender may apply for review of CDO at any time after the court’s first review if court gives leave to apply on ground that there are exceptional circumstances.	Offender may apply for a CDO to be reviewed at any time after the court’s first review if court gives leave to apply on ground that there are exceptional circumstances.	An application for variation or revocation can be made at any time by either the offender or the Attorney-General.
Outcome of review	Court must revoke ESO unless satisfied, to a high degree of probability, that offender is likely to commit relevant offence if in the community and not subject to the ESO.	Court may affirm decision only if satisfied by acceptable, cogent evidence; and to high degree of probability; that evidence is of sufficient weight to affirm decision. If decision affirmed, court may order that prisoner continue to be subject to CDO; or be released from custody on ESO.	Court must rescind order if does not find person remains a serious danger to the community. Court may If finds person remains serious danger to community, decline to rescind order; or rescind order and make order that during period stated when person is not in custody the person be subject to conditions.	The ESO or CDO may be varied or revoked.
Legislation	SSOMA 2005 (Vic)	DP(SO)A 2003 (Qld)	DSOA 2006 (WA)	C(SSO)A 2006 (NSW)

Table 9: Appeal of Decisions

Appeal	Vic (ESO only)	QLD (SO & CDO)	WA (SO & CDO)	NSW (ESO & CDO)
Right of appeal	Offender may appeal to Court of Appeal against decision to make, to renew, or not to revoke an extended supervision order Secretary may appeal to Court of Appeal against decision not to make, not to renew, or to revoke an extended supervision order if considered to be in the public interest.	Attorney-General or offender may appeal against a decision under the Act (including decision to make or not make a continuing detention or supervision order).	DPP (or Attorney-General) or offender may appeal to Court of Appeal against a decision under the Act (including decision to make or not make a continuing detention or supervision order).	An appeal can be made to the Court of Appeal from any decision of the Supreme Court to make, or to refuse to make, an extended supervision order or continuing detention order.
Time limit for appeals	Appeal must be lodged within 28 days of the relevant decision.	The appeal must be started within one month after the decision is made.	Not specified in legislation.	ESOs and CDOs may be appealed against, as of right, within 28 days of the decision or otherwise, by leave of the Court of Appeal.
Powers on appeal	Court of Appeal may: revoke the ESO or the renewed ESO; confirm the relevant decision; if it thinks that an ESO should have been made or renewed, quash the relevant decision and remit the matter to the court that made that decision, with or without any directions; or if it thinks that the ESO should not have been revoked, quash the relevant decision and make an order reviving the ESO.	An appeal is by way of rehearing. Appeal does not stay the decision. The Court of Appeal: has all powers and duties of court that made the original decision; may draw inferences of fact not inconsistent with findings of court and may, on special grounds, receive further evidence as to questions of fact; and may order that the matter be remitted to the original court for rehearing.	An appeal is by way of rehearing. Appeal does not stay the decision. The Court of Appeal: has all powers and duties of court that made the original decision; and may draw inferences of fact not inconsistent with findings of court and may, on special grounds, receive further evidence as to questions of fact.	The making of an appeal does not stay the operation of an extended supervision order or continuing detention order. The Act does not specify what powers the Court of Appeal has on appeal.
Legislation	SSOMA 2005 (Vic)	DP(SO)A 2003 (Qld)	DSOA 2006 (WA)	C(SSO)A 2006 (NSW)

Appendix 2: Comparison of Offences

The following table compares sexual offences under the Victorian Serious Offender Provisions with the eligibility offences under the current Victorian Extended Supervision Scheme.

Offences which trigger eligibility under scheme	Serious Sexual Offences*	Extended Supervision*
Rape	Yes	Yes (where victim is a child)
Indecent Assault^a	Yes	Yes (where victim is a child)
Assault with intent to rape	Yes	Yes (where victim is a child)
Incest	Yes^b	Yes
Sexual penetration of a child under 16	Yes	Yes
Sexual penetration of 16 or 17 year old	No	Yes
Indecent act with a child under 16	Yes	Yes
Persistent sexual abuse of a child under 16	Yes	Yes
Facilitating sexual offences against children	Yes	Yes
Sexual penetration of a person with impaired mental functioning	Yes	Yes (where victim is a child)
Indecent act with a person with impaired mental functioning	Yes	Yes (where victim is a child)
Sexual penetration with a resident of a residential facility	Yes	Yes (where victim is a child)
Indecent act with a resident of a residential facility	Yes	Yes (where victim is a child)
Administration of drugs to enable an act of sexual penetration	Yes	Yes (where victim is a child)
Abduction/detention for the purposes of sexual penetration	Yes	Yes (where victim is a child)
Abduction of a child under 16	Yes	Yes
Occupier permitting unlawful sexual penetration	No	Yes (where victim is a child)
Procuring sexual penetration by threats or fraud	Yes	Yes (where victim is a child)
Procuring sexual penetration of a child under 16	Yes	Yes
Bestiality	No	Yes
Soliciting acts of sexual penetration/indecent acts	No	Yes
Sexual servitude	Yes	No
Aggravated sexual servitude	Yes	Yes
Deceptive recruiting for commercial sexual services	Yes	No
Aggravated deceptive recruiting for commercial sexual services	Yes	Yes
Being a convicted sex offender and loitering near schools	No	Yes
Production of child pornography	No	Yes
Procurement of a minor for child pornography	No	Yes
Possession of child pornography	No	Yes
Sexual performance including a minor	No	Yes
Burglary (where the offender entered the building or part of the building as a trespasser with intent to commit a sexual or indecent assault)	Yes	Yes, where the offender entered with intent to commit a sexual offence against a child
Aggravated burglary (where the offender entered the building or part of the building as a trespasser with intent to commit a sexual or indecent assault)	Yes	Yes , where the offender entered with intent to commit a sexual offence against a child
Causing or inducing a child to take part in prostitution	No	Yes
Obtaining payment for sexual services provided by a child	No	Yes
Agreement for the provision of sexual services by a child	No	Yes
Allowing a child to take part in prostitution	No	Yes
Publication or transmission of child pornography	No	Yes
Commonwealth offences involving sexual penetration of a child outside Australia	No	Yes
Commonwealth offences of trafficking in children	No	Yes, where purpose of trafficking is to provide sexual services
Commonwealth offence of sexual conduct with a child under 16 outside Australia	No	Yes
Commonwealth offence of inducing sexual conduct with a child under 16 outside Australia	No	Yes
Commonwealth offence of using a carriage service for child pornography material	No	Yes
Commonwealth offence of possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service	No	Yes
Commonwealth offence of using a carriage service for child abuse material	No	Yes
Commonwealth offence of possessing, controlling, producing, supplying or obtaining child abuse material	No	Yes
Commonwealth offence of using a carriage service to procure persons under 16 years	No	Yes
Commonwealth offence of using a carriage service to ‘groom’ persons under 16 years	No	Yes
Commonwealth offence of sexual servitude	No	Yes (where victim is a child)
Commonwealth offence of deceptive recruiting for sexual servitude	No	Yes (where victim is a child)
Offences under the Customs Act 1901 in relation to child pornography and child abuse material	No	Yes

*Transitional offences in the legislation have not been included here. The schemes also cover attempts and conspiracies to commit the offences in the table.

Indecent Assault is a relevant offence if :

(a) immediately before or during or immediately after the commission of the offence at, or in the vicinity of, the place where the offence was committed, the offender inflicted serious personal violence on the victim or did an act which was likely seriously and substantially to degrade or humiliate the victim, whether or not the serious personal violence of that act constituted or formed part of the indecent assault; or
(b) the offender aided and abetted by another person who was present ; or
(c) the victim was under 16 years of age at the time of the commission of the offence.

Crimes Act 1958 (Vic), ss 44(1), (2) or (4) but not section 44(4)—if both people are aged 18 or older and each consented to engage in the sexual act.

Appendix 3: Successful applications in Queensland

CONTINUING DETENTION ORDERS

Citation	Date of order	Length of order	Order expires
A-G v Beattie [2006] QSC 322	26/10/2006	Indefinite	Indefinite
A-G v Pearce [2005] QSC 314 (16 August 2005)	16/08/2005	Indefinite	Indefinite
A-G v Robinson [2006] QSC 328 (1 November 2006)	01/11/2006	Indefinite	Indefinite
A-G v Waghorn [2006] QSC 171 (14 July 2006)	14/07/2006	Indefinite	Indefinite
A-G v Yeo [2006] QSC 063 (3 April 2006)	3/04/2006	Indefinite	Indefinite

SUPERVISION ORDERS

Citation	Date of order	Length of order	Order expires
A-G v B [2006] QSC 227 (28 August 2006)	28/08/2006	10 years	31/08/2016
A-G v B [2006] QSC 330 (3 November 2006)	27/11/2006	20 years	27/11/2026
A-G v Bickle [2006] QSC 130 (2 June 2006)	2/06/2006	20 years	2/06/2026
A-G v Fardon [2005] QSC 137 (11 May 2005); A-G v Fardon [2003] QSC 379 (6 November 2003); A-G v Fardon [2003] QSC 331 (2 October 2003); A-G v Fardon [2003] QSC 200 (9 July 2003). 27/09/06 order that supervision order to be issued, terms to be finalised and matter re-listed within 30 days.
A-G v Foy [2004] QSC 428 (30 November 2004); A-G v Foy [2005] QSC 1 (6 January 2005); DPP v Foy [2006] QSC 45 (13 March 2006); A-G v Foy [2006] QSC 143 (14 June 2006)	6/01/2005	10 years	31/12/2014
Welford, A-G v Francis [2004] QSC 128 (5 May 2004); Welford, A-G for the State of Qld v Francis [2004] QSC 233 (13 August 2004) [CDO granted]; A-G v Francis [2005] QSC 381 (21 December 2005) [Application for review of CDO—CDO confirmed]; A-G v Francis [2006] QCA 372 (26 September 2006); A-G v Francis [2006] QCA 324 (30 August 2006) [Appeal against CDO allowed on 20 August 2006. Supervision order granted to take effect on 28 September 2006].	26/09/2006	6 years	28/09/2012
A-G v Friend [2006] QSC 131 (2 June 2006)	2/06/2006	10 years	2/06/2016
A-G v G [2005] QSC 71 (31 March 2005)	31/03/2005	Until 23/08/2009	23/08/2009
A-G v Hansen [2006] QSC 35 (6 March 2006)	6/03/2006	20 years	5/03/2026
A-G v McLean [2006] QSC 137 (17 May 2006)	17/05/2006	5 years	17/08/2011
A-G v O'Rourke [2006] QSC 196 (14 August 2006)	14/08/2006	10 years	8/09/2016
A-G v Sutherland [2006] QSC 268	27/09/2006	20 years	29/09/2026
A-G v Toms [2006] QSC 298 (20 October 2006)	20/10/2006	5 years	8/11/2011
A-G v Twigge [2006] QSC 107 (17 May 2006)	17/05/2006	8 years	3/06/2014
A-G v Van Dessel [2006] QSC 16 (10 February 2006); A-G v Van Dessel [2006] QCA 285 (4 August 2006)	10/02/2006	20 years (after appeal)	23/02/2026

Appendix 4: Submissions

Pre-Issues Paper

Preliminary Submissions

1.1 Confidential (18/07/2006)

1.2 CASA Forum (20/07/2006)

1.3 Victoria Legal Aid (27/07/2006)

1.4 Corrections Victoria (31/07/2006)

1.5 The Criminal Bar Association (03/08/2006)

1.6 The Victorian Bar Council (03/08/2006)

1.7 Victoria Police (23/08/2006)

Preliminary Meetings

Corrections Victoria (14/07/2006)

Centres Against Sexual Assault (15/08/2006)

Victims of crime representatives (Victims of Crime Support Association and VOCAW) (15/08/2006)

Legal and Medical Professional Meeting (17/08/2006)

Forensicare (25/10/2006)

Forensicare (22/11/2006)

Issues Paper

Submissions on Issues Paper

2.1 Confidential (04/09/2006)

2.2 Confidential (05/09/2006))

2.3 Confidential (06/09/2006))

2.4 Confidential (09/09/2006)

2.5 Confidential (09/09/2006)

2.6 Father Peter Norden, Victorian Criminal Justice Coalition (12/09/2006)

2.7 Dianne Hadden MLC (Member for Ballarat) (12/09/2006)

2.8 Confidential (13/09/2006)

2.9 Confidential (08/09/2006)

2.10 Confidential (07/09/2006)

2.11 Noel McNamara, Crime Victims Support Association (16/09/2006)

2.12 Dr Lynne Eccleston, Melbourne University (14/09/2006)

2.13 Sharon Healey (18/09/2006)

2.14 Victoria Legal Aid (18/09/2006)

2.15 Forensicare (19/09/2006)

2.16 Confidential (19/09/2006)

2.17 Confidential (19/09/2006)

2.18 Confidential (20/09/2006)

2.19 Director of Public Prosecutions (Paul Coghlan) (20/09/2006)

2.20 Mental Health Legal Centre (20/09/2006)

2.21 Confidential (20/09/2006)

2.22 Confidential (22/09/2002)

2.23 Confidential (28/09/2006)

2.24 Professor Paul E. Mullen, Forensicare (n.d.)

Focus Groups

Focus Group 1 (05/09/2006) – 11 attendees

Focus Group 2 (06/09/2006) – 5 attendees

Discussion Paper

Submissions on Discussion Paper

3.1 Anonymous (29/01/2007)

3.2 Confidential (29/01/2007)

3.3 Confidential (5/02/2007)

3.4 Pamela Nathan (forensic psychologist) (6/02/2007)

3.5 Confidential (6/02/2007)

3.6 Confidential (6/02/2007)

3.7 Father Peter Norden, Victorian Criminal Justice Coalition (13/02/2007)

3.8 Confidential (13/02/2007)

3.9 Phillip Lynch (Director and Principal Solicitor), Human Rights Law Resource Centre (14/02/2007)

3.10 Emmanuel College Year 12 Legal Studies class (19/02/2007)

3.11 Noel McNamara, Crime Victims Support Association (20/02/2007)

3.12 Confidential (20/02/2007)

3.13 CASA Forum (20/02/2007)

3.14 Ruth Paterson (21/02/2007)

3.15 Confidential (22/02/2007)

3.16 Springvale Monash Legal Service (22/02/2007)

3.17 Stanley Johnston (23/02/2007)

3.18 Supreme Court of Victoria (26/02/2007)

3.19 Confidential (26/02/2007)

3.20 Office of the Public Advocate (26/02/2007)

3.21 Office of Public Prosecutions (26/02/2007)

3.22 Office of the Child Safety Commissioner (26/02/2007)

3.23 Male Adolescent Program for Positive Sexuality (26/02/2007)

3.24 South Eastern CASA (26/02/2007)

3.25 Confidential (26/02/2007)

3.26 Law Institute of Victoria (28/02/2007)

3.27 Gary Bowman (28/02/2007)

3.28 Legal Aid Victoria (1/03/2007)

3.29 Federation of Community Legal Centres (28/02/2007)

3.30 Victorian Equal Opportunity and Human Rights Commission (7/03/2007)

3.31 Victoria Police (13/03/2007)

3.32 Criminal Bar Association (13/03/2007)

3.33 Mental Health Legal Centre (15/03/2007)

3.34 Forensicare (27/03/2007)

Meetings/Consultations/Visits

Community Forum (30/01/2007)

Crime Victims Support Association (6/02/2007)

Victims Roundtable (6/02/2007)

Legal and Professional Roundtable (13/02/2007)

South Eastern Centre for Sexual Assault (14/02/2007)

Victims Assistance and Counselling Programme Managers’ Meeting (15/02/2007)

Australian and New Zealand Association of Psychiatry, Psychology and Law Forum (19/02/2007)

Victoria Police (20/02/2007)

Forensicare (26/02/2007)

Office of the Public Advocate (15/03/2007)

Disability Services, Legal Services and Office of the Senior Practitioner, Department of Human Services (21/03/2007)

Australian Community Support Organisation (27/03/2007)

Official visit to ESO Temporary Accommodation Centre, Ararat Prison (30/03/2007)

Focus Groups

Focus Group 3 (19/02/2007) – 7 attendees

Focus Group 4 (22/02/2007) – 10 attendees

Focus Group 5 (27/02/2007) – 10 attendees

Focus Group 6 (28/02 /2007) – 11 attendees

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Published by the Sentencing Advisory Council, Melbourne Victoria Australia.

This Report reflects the law as at 1 April 2007.

© Copyright State of Victoria, Sentencing Advisory Council, May 2007. This publication is protected by the laws of copyright. No part may be reproduced by any process except in accordance with the provisions of the Copyright Act 1968 (Cth).

Authorised by the Sentencing Advisory Council, 4/436 Lonsdale Street, Melbourne.

The publications of the Sentencing Advisory Council follow the Melbourne University Law Review Association Inc Australian Guide to Legal Citation (2nd edn, 2002).

^[1] Some jurisdictions use the term ‘continued detention’ and others ‘continuing detention’. For consistency with other Australian jurisdictions, the discussion in this paper will use the term ‘continuing detention’.

^[2] Fardon v Attorney-General (Qld) (2004) 233 CLR 575.

^[3] Bernadette McSherry, High-Risk Offenders: Continuing Detention and Supervision Options Community Issues Paper (2006).

^[4] Comments received prior to the release of the Issues Paper have the prefix ‘1’ (e.g. 1.1, 1.2 etc).

^[5] The focus groups began with a presentation of relevant information about sentencing and current schemes and issues in the management of high-risk offenders. Participants then discussed their views on a variety of issues, including the kinds of offenders who in their view cause the community the greatest concern, and the most appropriate way to manage those offenders. While the Council acknowledges that the small number of focus group participants cannot fully represent the views of the ‘general public’, this approach complemented the call for submissions and provided a valuable insight into the range of views held by community members on these issues.

^[6] All comments received from individuals (including members of the community and victims of crime) were treated as confidential unless otherwise requested.

^[7] Comments received after the release of the Issues Paper have the prefix ‘2’ (e.g. 2.1, 2.2 etc).

^[8] Sentencing Advisory Council, High-Risk Offenders: Post-Sentence Supervision and Detention Discussion and Options Paper (2007).

^[9] Karen Gelb, Recidivism of Sex Offenders (2007).

^[10] See further Appendix 4 for a full list of submissions and consultations. Comments received after the release of the Discussion Paper have the prefix ‘3’ (e.g. 3.1, 3.2 etc).

^[11] (1992) 176 CLR 1, 27–8 (Brennan, Deane and Dawson JJ).

^[12] See, for example, submissions 1.7 (Victoria Police), 2.1 (confidential), 2.3 (confidential), 2.4 (confidential), 2.9 (confidential), 2.11 , 3.11 (Crime Victims Support Association), 2.16 (confidential), 2.18 (confidential), 3.4 (P. Nathan), 3.8 (confidential), 3.19 (confidential), 3.31 (Victoria Police), meeting with victims’ representatives, 15 August 2006, Victims’ Issues Roundtable, 6 February 2007.

^[13] See, for example, submissions 1.2 (Victorian Centres Against Sexual Assault), 1.3, 2.14, 3.28 (VLA), 1.5 (Criminal Bar Association), 1.6 (Victorian Bar Council), 2.2 (confidential), 2.5 (confidential), 2.6, 3.7 (Victorian Criminal Justice Coalition), 2.13 (S. Healey), 2.23 (confidential), 3.1 (confidential), 3.5 (confidential), 3.6 (confidential), 3.14 (R. Paterson), 3.16 (Springvale Monash Legal Service Inc), 3.20 (Office of the Public Advocate), 3.26 (Law Institute of Victoria), 3.27 (G. Bowman), Legal Issues Roundtable, 13 February 2007.

^[14] See, for example, submissions 1.3, 3.28 (VLA), 2.6 (Victorian Criminal Justice Coalition), 3:16 (Springvale Monash Legal Service Inc), 3.20 (Office of the Public Advocate), 3.26 (Law Institute of Victoria), 3.33 (Mental Health Legal Centre). Similar views were expressed at the Legal Issues Roundtable, 13 February 2007.

^[15] William Glaser, Assessing the Dangerousness and Treatability of Sex Offenders in the Community (1991) cited in Denise Lievore, Recidivism of Sexual Assault Offenders: Rates, Risk Factors and Treatment Efficacy (2004) 13.

^[16] Jean Floud, ‘Dangerousness and Criminal Justice’ (1982) 22 British Journal of Criminology 213, 216.

^[17] Sentencing Act 1991 (Vic) s 18B(1).

^[18] Paul Mullen, ‘Dangerousness, Risk and the Prediction of Probability’ in Michael Gelder, Juan Lopez-Ibor and Nancy Andreason (eds), New Oxford Textbook of Psychiatry (2000) 2066.

^[19] Nigel Walker (ed), Dangerous People (1996) 7.

^[20] R. Karl Hanson and Monique Bussière, “Predicting Relapse: A Meta-Analysis of Sex Offender Recidivism Studies (1998) 66(2) Journal of Consulting and Clinical Psychology, 348.

^[21] The overwhelming majority of sex offenders are men. Respondents to the Australian Bureau of Statistics’ 2005 Personal Safety Survey reported so few incidents of female sexual offending that the data on female offenders were considered unreliable for publication. Australian Bureau of Statistics, Personal Safety Survey, Australia, 2005, Catalogue 4906.0, (2006) 21.

^[22] See further Gelb (2007), above n 9; Sentencing Advisory Council (2007), above n 8, [3.8].

^[23] R. Karl Hanson and Kelly Morton-Bourgon, Predictors of Sexual Recidivism: An Updated Meta-Analysis, Report No. 2004–02 (2004) 1.

^[24] Meeting with Forensicare, 25 October 2006. Submissions 2.13 (S. Healey), 2.14 (VLA), 2.17 (confidential), 2.24 (Prof Paul E. Mullen), 3.20 (Office of the Public Advocate), 3.23 (Male Adolescent Program For Positive Sexuality), 3.27 (G. Bowman), 3.26 (Law Institute of Victoria), 3.29 (Federation of Community Legal Centres).

^[25] Submissions 2.14, 3.28 (VLA), 2.17 (confidential), 3.16 (Springvale Monash Legal Service Inc), 3.20 (Office of the Public Advocate). See further Sentencing Advisory Council (2007), above n 8, [5.3]–[5.15].

^[26] Finbarr McAuley, Insanity, Psychiatry and Criminal Responsibility (1993) 7.

^[27] Hanson and Bussière (1998), above n 17, 348.

^[28] Henry Steadman, 'From Dangerousness to Risk Assessment of Community Violence: Taking Stock at the Turn of the Century' (2000) 28 (3) The Journal of the American Academy of Psychiatry and the Law 265, 266. In relation to the problems of identifying which offenders are at risk of reoffending, see further Sentencing Advisory Council (2007), above n 8, [3.17]–[3.32]; [5.3]–[5.15]; Gelb (2007), above n 9.

^[29] Hanson and Bussière (1998), above n 20, 348.

^[30] Hanson and Morton-Bourgon (2004), above n 23, 1.

^[31] R. Karl Hanson, ‘Who is Dangerous and When are they Safe? Risk Assessment with Sex Offenders’ in Winick and La Fond (eds), Protecting Society form Sexually Dangerous Offenders-Law, Justice and Therapy (2003) 67.

^[32] Richard Rogers, ‘The Uncritical Acceptance of Risk Assessment in Forensic Practice’ (2000) 24(5) Law and Human Behavior 596.

^[33] See further Sentencing Advisory Council (2007), above n 8, [3.26]–[3.27].

^[34] Submission 2.24 (Prof Paul E Mullen).

^[35] Ibid.

^[36] Professor Paul Mullen ‘Dangerous: And Seriously Personality Disordered: And in Need of Treatment’, British Journal of Psychiatry (in press).

^[37] Judith Becker and William Murphy, ‘Risk assessment, treatment and prevention: What we know and do not know about assessing and treating sex offenders’ (1998) 4 Psychology, Public Policy and Law 116. See further Sentencing Advisory Council (2007), above n 8, [3.30].

^[38] ‘Doubts Rise as States Hold Sex Offenders After Prison’, The New York Times, 4 March 2007.

^[39] Alfred Allan and Deborah Dawson Assessment of the Risk Of Re-offending by Indigenous Male and Violent Sexual Offenders (No. 280, Trends and Issues in Criminal Justice, Australian Institute of Criminology, 2004). This issue was also raised in Submission 2.17 (confidential).

^[40] Jackie Craissati, Managing High Risk Sex Offenders in the Community (2004) 40.

^[41] James Ogloff, ‘The Australian and New Zealand Experience with the Preventative Detention of Sexual Offenders—Clinical Perspectives and the Question of ‘Risk’ (Paper presented to the Australian and New Zealand Association of Psychiatry, Psychology and Law 26th Annual Congress, Lorne, Victoria, 9–12 November 2006).

^[42] For a review of the research on the nature of sexual offending and recidivism rates of sex offenders, see Gelb (2007), above n 9.

^[43] Ogloff (2006), above n 41.

^[44] See further Sentencing Advisory Council (2007), above n 8, [3.33]–[3.41].

^[45] Stephen Smallbone and Richard Wortley, Child Sexual Abuse in Queensland: Offender Characteristics and Modus Operandi (2000) 20.

^[46] Gelb (2007), above n 9.

^[47] For example, only 19 per cent of those surveyed as part of the most recent ABS Personal Safety Survey who had experienced sexual assault in the last 12 months had reported the incident to police: Australian Bureau of Statistics, Personal Safety Survey Australia, Catalogue 4906.0 (2005) 21.

^[48] Sentencing Act 1991 (Vic) s 18A.

^[49] See further Sentencing Advisory Council (2007), above n 8, [3.42]–[3.49].

^[50] See further Sentencing Advisory Council (2007), above n 8, Chapter 4.

^[51] Sentencing Act 1991 (Vic) s 3(1).

^[52] Sentencing Act 1991 (Vic) s 11.

^[53] Sentencing Act 1991 (Vic) s 11(1).

^[54] See further Sentencing Advisory Council (2007), above n 8, [4.57]–[4.66].

^[55] See further [3.7.59]–[3.7.61].

^[56] Lievore (2004), above n 15, 80.

^[57] For further information about sex offender programs in Victoria and the efficacy of such programs, see Sentencing Advisory Council (2007), above n 8, [3.50]–[3.80].

^[58] Letter from Corrections Victoria, 27 November 2006.

^[59] Ibid.

^[60] See further Sentencing Advisory Council (2007), above n 8, [3.50]–[3.80].

^[61] Letter from Corrections Victoria, 27 November 2006.

^[62] Ibid.

^[63] See further Sentencing Advisory Council (2007), above n 8, [3.77]–[3.80]. Other programs for adolescent sex offenders include the Sexual Abuse Counselling and Prevention Program, run by the Children’s Protection Society and taking primarily voluntary clients; the Southern Sexual Abuse Counselling and Prevention Program, run by the South Eastern CASA and taking both voluntary and court-mandated clients; the Sexual Abuse Prevention Program, run by the Salvation Army, Brayton Youth and Family Services and Berry Street Goulbourn as the only rural sexual violence prevention program and taking both voluntary and court-mandated clients; and programs/treatment offered by private practitioners.

^[64] R. Curnow, P. Streker and E. Williams Juvenile Justice Report: Male Adolescent Program for Positive Sexuality (1998) cited in Donna Chung, Patrick O’Leary and Tammy Hand, Sexual Violence Offenders: Prevention and Intervention Approaches (Issues Paper 5, Australian Centre for the Study of Sexual Assault, 2006).

^[65] Chung, Leary and Hand (2006), above n 64, 29.

^[66] Office of the Attorney-General, ‘$34.2 Million to Support Victims of Sexual Assault and Child Witnesses’ (Press Release, 30 May 2006).

^[67] See further Sentencing Advisory Council (2007), above n 8, [3.55]–[3.80]; Gelb (2007), above n 9.

^[68] Lievore (2004), above n 15, 102; M. Alexander ‘Sex Offender Treatment Efficacy Revisited’ (1999) 11 Sexual Abuse: A Journal of Research and Treatment 101 cited in Ian Lambie and Malcolm Stewart, Community Solutions for the Community’s Problem: An Outcome Evaluation of Three New Zealand Community Child Sex Offender Treatment Programmes (Department of Corrections, New Zealand, 2003) 4. See further Sentencing Advisory Council (2007), above n 8, [3.55]–[3.80]; Gelb (2007), above n 7.

^[69] See Sentencing Advisory Council (2007), above n 8, [3.63]–[3.70]; [4.135]–[4.138]. The CoSA Mission Statement is: ‘To substantially reduce the risk of future sexual victimization of community members by assisting and supporting released individuals in their task of integrating with the community and leading responsible, productive, and accountable lives’: Correctional Services of Canada, Circles of Support and Accountability: Evaluation Report (2001). The original CoSA initiative in Ontario, Canada has been evaluated in a two-stage study: see further Sentencing Advisory Council (2007), above n 8, [3.65]–[3.70].

^[70] Letter from Corrections Victoria, 30 October 2006. See further Sentencing Advisory Council (2007), above n 8, [3.81]–[3.82].

^[71] See further Sentencing Advisory Council (2007), above n 8, [4.81]–[4.92].

^[72] Serious Sex Offenders Monitoring Act 2005 (Vic) s 5.

^[73] Serious Sex Offenders Monitoring Act 2005 (Vic) Schedule to s 3(1).

^[74] Serious Sex Offenders Monitoring Act 2005 (Vic) s 11(1).

^[75] Serious Sex Offenders Monitoring Act 2005 (Vic) s 14. See further Sentencing Advisory Council (2007), above n 8, [6.47]–[6.48].

^[76] Serious Sex Offenders Monitoring Act 2005 (Vic) s 15.

^[77] Letter from Corrections Victoria, 31 July 2006.

^[78] Fletcher v The Secretary to the Department of Justice and Anor [2006] VSC 354 (Unreported, Gillard J, 27 September 2006) (‘Fletcher’). See further Sentencing Advisory Council (2007), above n 8, [4.73]–[4.80].

^[79] Serious Sex Offenders Monitoring Act 2005 (Vic) s 1.

^[80] Victoria, Parliamentary Debates, Legislative Assembly, 22 February 2005, 11 (Tim Holding, Minister for Corrections) as cited in Fletcher [2006] VSC 354 (Unreported, Gillard J, 27 September 2006) [68].

^[81] Fletcher v The Secretary to the Department of Justice and Anor [2006] VSC 354 (Unreported, Gillard J, 27 September 2006) [69].

^[82] Serious Sex Offenders Monitoring (Amendment) Act 2006 (Vic) s 3.

^[83] Serious Sex Offenders Monitoring (Amendment) Act 2006 (Vic) s 4.

^[84] E-mail from Corrections Victoria, 19 April 2007.

^[85] Ibid.

^[86] TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 14 VR 109.

^[87] Sex Offenders Registration Act 2004 (Vic) s 1. See further Sentencing Advisory Council (2007), above n 8, [4.87]–[4.92].

^[88] Sex Offenders Registration Act 2004 (Vic) ss 16, 17.

^[89] Sex Offenders Registration Act 2004 (Vic) s 46. The value of a penalty unit fixed under section 6 of the Monetary Units Act 2004 (Vic) for the financial year commencing 1 July 2006 is $107.43: Victorian Government Gazette, 6 April 2006, 680.

^[90] Crimes Act 1958 (Vic) s 60B.

^[91] Crimes Act 1958 (Vic) s 60B (2A). See further Sentencing Advisory Council (2007), above n 8, [4.81]–[4.86].

^[92] Sex Offender Registration Act 2004 (Vic) ss 46, 47.

^[93] Sex Offender Registration Act 2004 (Vic) s 68. Child-related employment is defined at s 67 of the Sex Offender Registration Act 2004 (Vic) as employment involving contact with children in connection with a number of industries and services which are listed in that section.

^[94] See further Sentencing Advisory Council (2007), above n 8, [4.93]–[4.148].

^[95] See, for example, John La Fond and Bruce Winick, 'Sex Offender Reentry Courts: A Cost Effective Proposal for Managing Sex Offender Risk in the Community' (2003) 989 Annals of the New York Academy of Sciences 300.

^[96] See further Sentencing Advisory Council (2007), above n 8, [4.100]–[4.112]; Victorian Government Department of Human Services, Multiple and Complex Needs Initiative (2004).

^[97] Established under the Human Services (Complex Needs) Act 2003 (Vic).

^[98] Human Services (Complex Needs) Act 2003 (Vic) s 15.

^[99] Victorian Government Department of Human Services, Care Plan Assessments Victoria, The Multiple and Complex Needs Initiative <www.dhs.vic.gov.au/complexclients/cpav.htm> at 16 October 2006.

^[100] Victorian Government Department of Human Services, Care Plan Assessments Victoria, The Multiple and Complex Needs Initiative <www.dhs.vic.gov.au/complexclients/cpav.htm> at 16 October 2006.

^[101] Human Services (Complex Needs) Act 2003 (Vic) s 19.

^[102] Human Services (Complex Needs) Act 2003 (Vic) s 21(1).

^[103] Human Services (Complex Needs) Act 2003 (Vic) s 21(3)-(4)

^[104] Human Services (Complex Needs) Act 2003 (Vic) s 21(7).

^[105] Human Services (Complex Needs) Act 2003 (Vic) ss 21(2)(b); 24(4).

^[106] Human Services (Complex Needs) Act 2003 (Vic) s 23(2)(c).

^[107] Victoria, Parliamentary Debates, Legislative Assembly, 27 August 2003, 82 (Bronwyn Pike, Minister for Health).

^[108] These arrangements were put on a statutory footing in 2000 with the introduction of the Criminal Justice and Court Services Act 2000 (UK) and were re-enacted under the Criminal Justice Act 2003 (UK). See further Sentencing Advisory Council (2007), above n 8, [4.113]–[4.122].

^[109] Criminal Justice Act 2003 (UK) c 44, s 325(2).

^[110] Criminal Justice Act 2003 (UK) c 44, s 325.

^[111] Criminal Justice Act 2003 (UK) c 44, s 326. The Annual Reports for each area are published at

<www.probation.homeoffice.gov.uk/output/page30.asp> at 20 November 2006.

^[112] Criminal Justice Act 2003 (UK) c 44 s 325.

^[113] However, offenders diagnosed as having a ‘dangerous and severe personality disorder’ may be detained post-sentence in hospitals under the new Dangerous and Severe Personality Disorder Programme. See further: Tony Maden, ‘DSPD: Origins and Progress to Date’ British Journal of Forensic Practice (2006) <http://findarticles.com/p/articles/mi_qa4121/is_200612/ai_n18632531> at 23 April 2007.

^[114] Sexual Offences Act 2003 (UK) c 42, s 104.

^[115] Sexual Offences Act 2003 (UK) c 42, s 104(1). See further Sentencing Advisory Council (2007), above n 8, [4.118]–[4.122].

^[116] Sexual Offences Act 2003 (UK) c 42, s 113.

^[117] Andrew Ashworth, ‘Social Control and “Anti-Social Behaviour”: The Subversion of Human Rights’ 2004 120 Law Quarterly Review 263; see also Arie Freiberg, ‘Jurisprudential Miscegenation: Strict Liability and the Ambiguity of Crime’ in A. Brannigan and G. Pavlich (eds), Critical Studies in Social Control: The Carson Paradigm and Governmentality (forthcoming).

^[118] See further Sentencing Advisory Council (2007), above n 8, [4.113]–[4.122]; Responsible Authority National Steering Group, MAPPA—The First Five Years: A National Overview of the Multi-Agency Public Protection Arrangements 2001–2006 (2006) Table 5.

^[119] For example, Panorama recently ran a story titled ‘Exposed: The Bail Hostel Scandal’ which suggested child sex offenders were being housed in bail hostels with limited supervision: see <http://news.bbc.co.uk/2/ hi/programmes/panorama/6123534.stm> at 30 November 2006.

^[120] Scottish Executive, Report of the Committee on Serious Violent and Sexual Offenders Chairman: Lord Maclean, SE/2000/68 (2000) 23. See further Sentencing Advisory Council (2007), above n 8,[4.123]–[4.128].

^[121] Scottish Executive (Justice) Risk Management Authority (2005)

< www.scotland.gov.uk/Topics/Justice/criminal/17309/14128> at 30 July 2006.

^[122] For further information about Orders for Lifelong Restriction see Sentencing Advisory Council (2007), above n 8, [4.42]–[4.44]; [4.126]–[4.127].

^[123] Risk Management Authority, Frequently Asked Questions (2006) < www.rmascotland.gov.uk/faqs.aspx> at 1 November 2006.

^[124] Ibid.

^[125] See further Sentencing Advisory Council (2007), above n 8, [3.63]–[3.70]; [4.135]–[4.138]. The original CoSA initiative in Ontario, Canada has been evaluated in a two-stage study: Ibid [3.65]–[3.70].

^[126] Hazel Kemshall, Risk Assessment and Management of Serious Offenders: A Review of Current Issues (No. 64, 2002), 40. See further [2.3.43] to [2.3.45]. The CoSA Mission Statement is: ‘To substantially reduce the risk of future sexual victimization of community members by assisting and supporting released individuals in their task of integrating with the community and leading responsible, productive, and accountable lives’: Correctional Services of Canada, Circles of Support and Accountability: Evaluation Report (2001).

^[127] Arie Freiberg, 'Problem-oriented Courts: Innovative Solutions to Intractable Problems?' (2001) 11 Journal of Judicial Administration 8.

^[128] John La Fond and Bruce Winick, 'Sex Offender Reentry Courts: A Cost Effective Proposal for Managing Sex Offender Risk in the Community' (2003) 989 Annals of the New York Academy of Sciences 300, 312.

^[129] Ibid.

^[130] Ibid 315.

^[131] Ibid 316.

^[132] Ibid 316–17.

^[133] Ibid 318.

^[134] Ibid.

^[135] Ibid.

^[136] Ibid 319.

^[137] For example, Submission 3.15 (confidential).

^[138] Some jurisdictions choose to improve the range of sentencing options and arrangements for managing offenders in the community, rather than introducing continuing detention schemes, for example Canada and the United Kingdom: see further Sentencing Advisory Council (2007), above n 8, [4.29]–[4.48].

^[139] Participant, Focus Group 5.

^[140] Submission 3.15 (confidential).

^[141] Submission 3.16 (Springvale Monash Legal Service Inc).

^[142] See further Sentencing Advisory Council (2007), above n 8. This issue was raised in our consultation, including meetings between the Sentencing Advisory Council and legal and medical professionals on 17 August 2006 and 13 February 2007.

^[143] Veen v R (No. 1) [1979] HCA 7; (1979) 143 CLR 458, 469.

^[144] Veen v R (No. 2) [1988] HCA 14; (1988) 164 CLR 465, 472.

^[145] R v Moffatt [1998] 2 VR 229, 235.

^[146] R v Chester [1988] HCA 62; (1988) 165 CLR 611, 618.

^[147] See further Sentencing Advisory Council (2007), above n 8, [4.49]–[4.50].

^[148] James Vess, ‘Preventative Detention Versus Civil Commitment: Alternative Policies for Public Protection in New Zealand and California’ 12(2) (2005) Psychiatry, Psychology and Law, 357.

^[149] The Honourable Phil Goff, Minister for Justice (New Zealand), ‘Reforms See Use of Preventative Detention Soaring’ (Press Release, 17 January 2005).

^[150] E-mail from Psychological Services, New Zealand Department of Corrections, 4 December 2006.

^[151] Alan Travis, ‘Indeterminate Life Terms Futile, Says Parole Board Chief’, The Guardian (United Kingdom) 10 January 2007, <www.guardian.co.uk/prisons/story/0,,1986731,00.html> at 11 January 2007. The population of IPP offenders in prison is projected to reach about 12,500 by the year 2011: Ibid.

^[152] While five offenders in Victoria have been sentenced to indefinite detention, one of these sentences was successfully overturned on appeal. All five offenders sentenced to an indefinite sentence had committed sexual offences and had previous convictions for such offences.

^[153] See, for example, R v Chester, in which the court provided an indefinite sentence ‘... should be confined to very exceptional cases where the exercise of the power is demonstrably necessary to protect society from physical harm’: R v Chester [1988] HCA 62; (1988) 165 CLR 611, 618 (Mason CJ, Brennan, Deane, Toohey and Gaudron JJ).

^[154] R v Moffatt [1998] 2 VR 229, 234 (Winneke P) and 255 (Hayne JA).

^[155] Interestingly in Canada an application for a dangerous offender sentence can be made up to six months after sentencing if there is new evidence—see further Sentencing Advisory Council (2007), above n 8, [4.32].

^[156] Submissions 3.13 (Centres Against Sexual Assault), 3:14 (R. Paterson); 3.18 (S. Johnston), 3.28 (VLA).

^[157] Submissions 3.13 (Centres Against Sexual Assault), 3.14 (R. Paterson); 3.23 (Male Adolescent Program for Positive Sexuality), 3.26 (Law Institute of Victoria), 3.28 (VLA).

^[158] Meeting with Forensicare, 26 February 2007.

^[159] Adult Parole Board of Victoria, Adult Parole Board Annual Report 2004–5 (2005) 6.

^[160] Meeting with Forensicare, 26 February 2007.

^[161] Ibid 29.

^[162] Submission 3.28 (VLA). See also, for example, Submission 3.23 (Male Adolescent Program for Positive Sexuality).

^[163] See further Sentencing Advisory Council (2007), above n 8, [3.83]–[3.93]; [6.248]–[6.253].

^[164] Adult Parole Board (Victoria) (2005), above n 159, 6.

^[165] Adult Parole Board (Victoria), Adult Parole Board Annual Report 2005–6 (2006) 9.

^[166] Submission 3.33 (Mental Health Legal Centre).

^[167] Danny Sullivan, Paul Mullen and Michele Pathé, ‘Legislation in Victoria on Sexual Offenders: Issues for Health Professionals’ (2005) 183(6) Medical Journal of Australia 318.

^[168] Professor James Ogloff discussed the effects that legislative initiatives such as Victoria’s extended supervision order are likely to have on offenders’ motivation to engage meaningfully in treatment: Professor James Ogloff, ‘Legal and Therapeutic Efforts to Protect the Public from the Sexual Predator’ (Speech delivered at the Australian and New Zealand Association of Psychiatry Psychology and Law Dinner, Melbourne, Victoria, 21 September 2006). See further Sentencing Advisory Council (2007), above n 8, [5.16]–[5.21].

^[169] This issue was raised in submissions, for example Submission 3.23 (Office of the Public Advocate): see further Sentencing Advisory Council (2007), above n 8, [5.16]–[5.21].

^[170] Possible models for the case management of serious offenders include the NSW Serious Offenders Review Council and the Scottish Risk Management Authority (see further Sentencing Advisory Council (2007), above n 8, [4.66]; [4.123]–[4.128]).

^[171] Submission 3.15 (confidential).

^[172] Ibid.

^[173] Submission 3.18 (Supreme Court of Victoria).

^[174] R v Moffatt [1998] 2 VR 229.

^[175] Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575.

^[176] These issues are discussed in detail in the Council’s Discussion Paper, including at [5.22]–[5.38] and are briefly summarised in this section.

^[177] Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575, 590–1 (Gleeson CJ); 594–6 (McHugh J); 615–20 (Gummow J); 653–4 (Callinan and Heydon JJ).

^[178] Ibid 622–3, footnote omitted.

^[179] Ibid 622–43.

^[180] Charter of Human Rights and Responsibilities Act 2006 (Vic).

^[181] Adopted and proclaimed by General Assembly Resolution 217A (III) of 10 December 1948, preamble.

^[182] Ibid.

^[183] These include The United Nations Standard Minimum Rules for the Treatment of Prisoners; The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; The International Labour Organisation Convention (No. 29) concerning Forced or Compulsory Labour. See generally Nigel Rodley, The Treatment of Prisoners under International Law (1999).

^[184] Signed 18 December 1972, ratified 13 August 1980. See further Sentencing Advisory Council (2007), above n 8, [5.39]–[5.57].

^[185] Adopted by General Assembly resolution 40/34 of 29 November 1985.

^[186] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 21(1).

^[187] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 21(2).

^[188] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 21(3).

^[189] Submission 3.9 (Human Rights Law Resource Centre).

^[190] Ibid. The Centre noted that in A v Australia the UN Human Rights Committee recognised the following considerations as relevant to the question of arbitrariness: whether there has been individual consideration of whether detention is necessary rather than a blanket decision to detain a class of people; the length of time of non-punitive detention; and whether detention is a disproportionate measure in the circumstances: submission 3.9 (Human Rights Law Resource Centre) citing A v Australia, HRC, Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993 (3 April 1997) [9.1]–[9.7].

^[191] See further Sentencing Advisory Council (2007), above n 8, [5.45]–[5.49]; Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575, 638–40. On the other hand, the form of detention authorised by the Queensland, Western Australian and New South Wales schemes does not exhibit the features which are the ‘hallmark of arbitrary detention’ such as keeping the prisoners incommunicado, preventing any challenge to the detention and having no form of independent and external arbitral authority: George Zdenkowski, ‘Community Protection Through Imprisonment Without Conviction: Pragmatism Versus Justice’ [1997] AUJlHRights 3; (1997) 3(2) Australian Journal of Human Rights 8.

^[192] Submission 3.16 (Springvale Monash Legal Service Inc).

^[193] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 22(1).

^[194] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 26.

^[195] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 22(2).

^[196] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 22(3).

^[197] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 27(2).

^[198] Kable v Director of Public Prosecutions (1995) 36 NSWLR 374, 376.

^[199] A number of submissions expressed concern at the possible infringement of the human rights of the offender if a scheme of continuing detention were to be introduced for example: submissions 1.6 (Victorian Bar Council), 2.14, 3.26 (VLA), 2.6, 3.7 (Victorian Criminal Justice Coalition), 2.13 (S. Healey), 2.17 (confidential), 3.5 (confidential), 3.6 (confidential), 3.9 (Human Rights Legal Resource Centre), 3.16 (Springvale Monash Legal Service Inc), 3.20 (Office of the Public Advocate), 3.29 (Federation of Community Legal Centres), 3.30 (Victorian Equal Opportunity and Human Rights Commission).

^[200] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 28(3). Section 29 provides that a failure to comply with s 28 does not affect the validity, operation or enforcement of the Act.

^[201] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 31(1).

^[202] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 36(5). Throughout the community consultations on the Charter, the Victorian Government made it clear that any formalisation of rights protection was subject to the preservation of parliamentary sovereignty.

^[203] Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 36–37.

^[204] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7(2).

^[205] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7(2).

^[206] Chester v R [1988] HCA 62; (1988) 165 CLR 611, 618–19; See also Buckley v R [2006] HCA 7; (2006) 224 ALR 416, 417; R v Moffatt [1998] 2 VR 229, 234 (Winneke P) and 255 (Hayne JA).

^[207] R v Davies [2005] VSCA 90; (2005) 11 VR 314 (Charles and Nettle JJA). See also Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (2nd edn) (1999) 662.

^[208] The issue of balancing competing rights was raised in a number of the submissions to the Council, for example submission 2.7 (The Hon. Dianne Hadden MLC, Member for Ballarat Province) 5.

^[209] Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (2nd edn, 2005) 94. See further Sentencing Advisory Council (2007), above n 8, [5.58]–[5.61].

Issues of procedural fairness were raised in a number of submissions, for example: submissions 2.13 (S. Healey); 2.14 (VLA); 2.17 (confidential). In one submission it was suggested that legal principles are not absolute and that there may be situations where they may be undermined, but this should only occur as a last resort. In the case of continuing detention, it should only occur where it can be established that ‘such measures would be the most effective means to achieve the purported aim of community protection’ (Submission 2.17 (confidential)).

^[210] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 24(1).

^[211] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 24(3).

^[212] Richard Fox, Victorian Criminal Procedure (2000) 298. See further Sentencing Advisory Council (2007), above n 8, [5.62]–[5.67]. A number of submissions to the Council expressed the view that continuing detention laws undermine fundamental legal principles, including the principles of proportionality and finality of sentence, for example: submissions 2.13 (S. Healey); submissions 2.14, 3.26 (VLA), 1.6 (Victorian Bar Council), 2.6, 3.7 (Victorian Criminal Justice Coalition), 2.13 (S. Healey), 2.17 (confidential), 3.5 (confidential), 3.6 (confidential), 3.9 (Human Rights Legal Resource Centre), 3.16 (Springvale Monash Legal Service Inc), 3.29 (Federation of Community Legal Centres).

^[213] Kate Warner, 'Sentencing Review 2002–2003' (2003) 27 Criminal Law Journal 325, 338.

^[214] Patrick Keyzer et al, ‘Pre-Emptive Imprisonment for Dangerousness in Queensland Under the Dangerous Prisoners (Sexual Offenders) Act 2003: The Constitutional Issues’ (2004) 11(2) Psychiatry, Psychology and Law 244, 250.

^[215] Submissions 2.14 (VLA), 1.5 (Criminal Bar Association), 1.6 (Victorian Bar Council), 2.2 (confidential), 2.6 (Victorian Criminal Justice Coalition), 2.13 (S. Healey), 3.16 (Springvale Monash Legal Service Inc), 3.18 (Supreme Court of Victoria), 3.29 (Federation of Community Legal Centres).

^[216] Attorney-General v Watego [2003] QCA 512; (2003) 142 A Crim R 537.

^[217] Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575, 619 (Gummow J).

^[218] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 26.

^[219] Submissions 1.6 (Victorian Bar Council), 2.13 (S. Healey), 2.14 (VLA), 2.17 (confidential), 2.6 (Victorian Criminal Justice Coalition), 3.9 (Human Rights Legal Resource Centre), 3.29 (Federation of Community Legal Centres), 3.30 (Equal Opportunity and Human Rights Commission). See further Sentencing Advisory Council (2007), above n 8, [5.79]–[5.85].

^[220] Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575, 609–10. See further Sentencing Advisory Council (2007), above n 8, [5.81]; footnote 445.

^[221] Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575, 644.

^[222] Ibid.

^[223] Ibid (footnotes omitted).

^[224] See further Sentencing Advisory Council (2007), above n 8, [5.86]–5.92]. This was raised in a number of submissions, for example submission 2.17 (confidential), 3.29 (Federation of Community Legal Centres).

^[225] See further Sentencing Advisory Council (2007), above n 8, [5.87]–[5.92].

^[226] Christopher Slobogin, Minding Justice: Laws that Deprive People with Mental Disability of Life and Liberty (2006) 94.

^[227] Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 636. The Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) provides that a person subject to a continuing detention order, interim detention order, supervision order or interim supervision order remains a prisoner for particular purposes (s 43A). In Witham v Holloway (1995) 183 CLR 525, 534, Brennan, Deane, Toohey and Gaudron JJ stated: ‘Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes. And there can be no doubt that imprisonment and the imposition of fines ... constitute punishment.’

^[228] International Covenant of Civil and Political Rights, Art 15(1) (signed 18 December 1972, ratified 13 August 1980); Charter of Human Rights and Responsibilities Act 2006 (Vic) s 27(1).

^[229] See further Sentencing Advisory Council (2007), above n 8, [5.93]–[5.96]. This issue was also raised in submissions, for example submissions 2.17 (confidential), 3.26 (Law Institute of Victoria).

^[230] See Sentencing Advisory Council (2007), above n 8, [5.94]–[5.95].

^[231] See further Sentencing Advisory Council (2007), above n 8, [5.130]–[5.133].

^[232] Monica Davey and Abby Goodnough, ‘Doubts Rise as States Hold Sex Offenders After Prison’, The New York Times, 4 March 2007.

^[233] Ibid.

^[234] For a discussion of this critique, see Eric Janus, 'Civil Commitment as Social Control: Managing the Risk of Sexual Violence' in Mark Brown and John Pratt (eds) Dangerous Offenders: Punishment and Social Order (2000) 80–1. This point was also made in a meeting with Forensicare, 22 November 2006.

^[235] For example submissions 2.18 (confidential), 3.8 (confidential), 3.11 (Crime Victims Support Association).

^[236] Submission 3.4 (P. Nathan).

^[237] Dangerous Prisoners (Sexual Offenders) Bill 2003, Explanatory Notes, 1.

^[238] Slobogin (2006), above n 226, 145–50.

^[239] Simon Bronitt and Bernadette McSherry, above n 209, 104.

^[240] Submission 2.7 (The Hon. Dianne Hadden MLC, Member for Ballarat Province) 5. Cf. Submission 3.16 (Springvale Monash Legal Service Inc), which questioned the logic of treating the rights of an offender, as equal to those of unknown potential future victims, and suggested the rights of both could be protected through focusing on the use of other strategies.

^[241] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7(2).

^[242] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7.

^[243] UN Economic and Social Council in the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc E/CN.4/1985/4, Annex (1985).

^[244] Submission 3.9 (Human Rights Law Resource Centre).

^[245] Submission 3.26 (Law Institute of Victoria).

^[246] ‘Wrong Turn on Sex Offenders’ (Editorial), The New York Times, 13 March 2007.

^[247] David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (2001) 133.

^[248] The Queensland and Western Australian models refer to the continuing control, care or treatment of offenders.

^[249] Zdenkowski (1997), above n 191, 8.

^[250] This issue was raised at the Legal Issues Roundtable on 13 February 2007 and the Victims’ Issues Roundtable on 7 February 2007.

^[251] Submission 1.2 (Victorian Centres Against Sexual Assault). See further extract from submission 2.17 (confidential) in Sentencing Advisory Council (2007), above n 8, [5.100].

^[252] Submission 3.26 (Law Institute of Victoria).

^[253] Ibid.

^[254] See, for example, Lenore Simon and Kristen Zgoba, ‘Prevention of Sex Crimes against Children: Legislation, Prevention and Investigation’ in Richard Wortley and Stephen Smallbone (eds) Situational Prevention of Child Sexual Abuse (2006) 86–7.

^[255] See, for example, Lenore Simon, ‘Matching Legal Policies with Known Offenders’ in Winick and La Fond (eds) (2003), above n 31.

^[256] See for example, Alison Gray and Michael Davis, ‘Investing in the Future of Children: Building Programs for Children or Prisons for Adult Offenders’ in Winick and La Fond (eds) (2003), above n 31. The Victorian Government recently announced a $31 million package over four years aimed at reforming the justice system and providing additional services to support victims of sexual assault. This funding includes $1.4 million to run treatment programs for people aged 15 to 18 years and for initiatives to reduce juvenile sexual offending and $2.7 million for new treatment programs for children under 10 with behavioural problems; Department of Justice, ‘$34.2 Million to Support Victims of Sexual Assault and Child Witnesses’, 2006–07 Budget Fact Sheet <www.budget.vic.gov.au/domino/Web_Notes/budgets/budget06.nsf/7b97d9472cf2520 cca256e6900201d10/a4f115398ea7b774ca256ff60008081b!OpenDocument> at 8 December 2006.

^[257] See, for example, Sullivan, Mullen and Pathé (2005), above n 167, 318.

^[258] Submission 3.26 (Law Institute of Victoria).

^[259] See, for example, Submissions 3.27 (G. Bowman), 3.29 (Federation of Community Legal Centres).

^[260] Submission 3.16 (Springvale Monash Legal Service Inc).

^[261] Council on Sex Offender Treatment, Civil Commitment of the Sexually Violent Predator—Cost of Inpatient vs Outpatient SVP (2005) <www.dshs.state.tx.us/csot/csot_ccost.shtm> at 12 February 2007.

^[262] California, Legislative Analyst’s Office, Proposition 83—Sex Offenders: Sexually Violent Predators. Punishment, Residence Restrictions and Monitoring: Initiative Statute (2006) <www.lao.ca.gov/ballot/ 2006/83_11_2006.pdf> at 12 February 2007.

^[263] Ibid.

^[264] ‘Doubts Rise As States Hold Sex Offenders After Prison’, The New York Times, 4 March 2007.

^[265] Australian Government, Productivity Commission, Report on Government Services 2007 (2007) Table 7A.7. This figure includes both recurrent and capital costs.

^[266] Department of Justice, Victoria, ‘Home Detention’ <http://www.justice.vic.gov.au/wps/wcm/connect/ DOJ+Internet/Home/Sentencing/Home+Detention/> at 26 February 2006.

^[267] This is illustrated by experiences in the United States. In California, the state made 269 attempts to find a home for one released sex offender; so many towns object to men leaving civil commitment that some of those released have been forced to live in trailers outside prisons or even in hotels until permanent housing can be located. In Milwaukee, the authorities started searching in 2003 for a neighbourhood for a 77-year-old offender, but have yet to find one :‘Doubts Rise As States Hold Sex Offenders After Prison’, The New York Times, 4 March 2007.

^[268] ‘Wrong Turn on Sex Offenders’ (Editorial) The New York Times, 13 March 2007.

^[269] Gelb (2007), above n 9.

^[270] Submissions 1.2, 3.13 (Victorian Centres Against Sexual Assault). 2.17 (confidential), 3.14 (R. Paterson); 3.26 (Law Institute of Victoria), 3.27 (G. Bowman).

^[271] Submissions 1.2, 3.13 (Victorian Centres Against Sexual Assault), 3.24 (South Eastern CASA). See further Sentencing Advisory Council (2007), above n 8, [5.103]–[5.126].

^[272] Melisa Wood and James Ogloff, ‘Victoria’s Serious Sex Offenders Monitoring Act 2005: Implications for the Accuracy of Sex Offender Risk Assessment’ (2006) 13(2) Psychiatry, Psychology and Law 195. A number of submissions expressed the view that resources would be better directed towards other areas which target sexual offending; submissions 3.13 (Centres Against Sexual Assault), 3.14 (R. Paterson); 3.28 (VLA). See also Sentencing Advisory Council (2007), above n 8, [5.117]–[5.126].

^[273] John Q La Fond, ‘The Costs of Enacting a Sexual Predator Law and Recommendations for Keeping Them From Skyrocketing’ in Winick and La Fond (eds) (2003), above n 31, 297.

^[274] Department of Justice Strategic Priorities 2007 (2007) 6.

^[275] Ibid.

^[276] Submission 3.26 (Law Institute of Victoria).

^[277] Anthony Bottoms and Roger Brownsword, 'The Dangerousness Debate After the Floud Report' (1982) 22 (3) British Journal of Criminology 229, 242–3.

^[278] Ibid 243.

^[279] Submission 3.19 (Office of the Public Advocate).

^[280] See, for example, Submissions 2.6 (Victorian Criminal Justice Coalition, 3.16 (Springvale Monash Legal Service Inc), 3.26 (Law Institute of Victoria), 2.14, 3.28 (VLA), 3.29 (Federation of Community Legal Centres), 2.20, 3.33 (Mental Health Legal Centre). These views were also expressed at various meetings convened by the Council, including Legal Issues Roundtable, 13 February 2007 and meetings with Forensicare, 25 October 2006 and 26 February 2007 as well as the public forum convened by the Australian and New Zealand Society of Psychiatry, Psychology and the Law—‘High-Risk Offender Orders and Community Protection: How Long is Long Enough?’—on 19 February 2007. See also Dave Taylor, ‘High-Risk Strategy Unlikely to Be Effective’ (2007) 81(4) Law Institute Journal (2007) 10.

^[281] Submission 3.13 (CASA Forum). See also Kenneth Nguyen, ‘Plans for Sex Offenders Unlikely to Cut Assaults’, The Age (Melbourne), 17 April 2006, 6.

^[282] Roberts et al, Penal Populism and Public Opinion: Lessons from Five Countries (2003) 84–7.

^[283] Participant, Focus Group 3.

^[284] Participant, Focus Group 5.

^[285] Participant, Focus Group 5.

^[286] Participant, Focus Group 5.

^[287] Participant, Focus Group 3.

^[288] Participant, Focus Group 3.

^[289] Participant, Focus Group 3.

^[290] Participant, Focus Group 3.

^[291] Participant, Focus Group 4.

^[292] Participant, Focus Group 4.

^[293] Participant, Focus Group 5.

^[294] Participant, Focus Group 4.

^[295] Participant, Focus Group 5.

^[296] Participant, Focus Group 5.

^[297] Participant, Focus Group 5.

^[298] Participant, Focus Group 3.

^[299] Participant, Focus Group 3.

^[300] Participant, Focus Group 4.

^[301] Participant, Focus Group 3.

^[302] Participant, Focus Group 5.

^[303] Participant, Focus Group 4.

^[304] Participant, Focus Group 5.

^[305] Participant, Focus Group 4.

^[306] Participant, Focus Group 4.

^[307] Submission 3.8 (confidential).

^[308] Submission 3.11 (Crime Victims Support Association).

^[309] Submission 3.10 (Year 12 Legal Studies Class, Emmanuel College).

^[310] Submission 3.5 (confidential). This submission favoured an alternative system of treatment and imposition of a partially suspended sentence (the suspended part of which would be triggered by a refusal to complete treatment, or by further similar offending).

^[311] Submission 3.6 (confidential).

^[312] Submission 3.27 (G. Bowman).

^[313] Submission 2.17 (confidential).

^[314] Victims’ Issues Roundtable, 6 February 2007. While this issue was dealt with briefly, the majority of the discussions at this meeting concerned the scope and structure of a continuing detention scheme.

^[315] The CoSA Program was discussed following a suggestion made by focus group participants that some kind of ‘mentoring program’ should be introduced for these offenders in the community as a means of providing social support: Focus Group 6.

^[316] See, for example, Victims’ Issues Roundtable, 7 February 2006; Legal Issues Roundtable, 13 February 2006 and Submissions 3.26 (Law Institute of Victoria), 3.34 (Forensicare).

^[317] Department of Justice, ‘$34.2 Million to Support Victims of Sexual Assault and Child Witnesses’, 2006–07 Budget Fact Sheet.

^[318] Department of Justice Strategic Priorities 2007 (2007) 6.

^[319] See further [3.1.20]–[3.1.21]

^[320] See further [2.4.4]–[2.4.6] above.

^[321] Victorian Labor Party, ‘Community Safety: Labor’s Plan for Keeping Crime Rates Low’ (Released 14 November 2006) 12.

^[322] Under section 32 of the Crimes (Serious Sex Offenders) Act 2006 (NSW) the Minister must review the Act as soon as possible after a period of three years from the date of assent ‘to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives’. A report on the outcome of the review must also be tabled in each House of Parliament within 12 months after the end of the period of three years.

^[323] Bottoms and Brownsword (1982), above n 277, 239.

^[324] See [3.2.10].

^[325] For example: submissions 3.18 (Supreme Court of Victoria); 3.26 (Law Institute of Victoria).

^[326] Submission 3.30 (Victorian Equal Opportunity and Human Rights Commission).

^[327] Gelb (2007), above n 9; Stephen J Morse, ‘Bad or Mad?: Sex Offenders and Social Control’ in Bruce J. Winick and John Q LaFond (eds) (2003), above n 31, 165, 167.

^[328] See further Sentencing Advisory Council (2007), above n 8, [2.13]–[2.30]. Examples of schemes based on the medical model include the ‘sexual predator’ or ‘sexually violent predator’ (SVP) laws in the United States (see further Discussion Paper [2.15]–[2.16]; [2.21]–2.26]), the United Kingdom Dangerous Severe Personality Disorder Program (see further Discussion Paper [2.22]; [4.139]–[4.145]) and the Canadian psychiatric gating scheme (see Discussion Paper [2.17]).

^[329] At present, s 8(1) of the Mental Health Act 1986 (Vic) requires that the individual must appear to be mentally ill. Section 8(1A) defines mental illness as a ‘medical condition that is characterised by a significant disturbance of thought, mood, perception or memory’. A person is not to be considered to be mentally ill just because he or she has an antisocial personality disorder (s 8(2)(l)), expressed a particular sexual orientation (s 8(2)(d)) or engages in illegal conduct (s 8(2)(i)).

^[330] Submission 3.32 (Criminal Bar Association).

^[331] See further Sentencing Advisory Council (2007), above n 8, [2.20]–[2.30].

^[332] ‘Doubts Rise as States Hold Sex Offenders After Prison’, The New York Times, 4 March 2007.

^[333] ‘Wrong Turn on Sex Offenders’ (Editorial) The New York Times (New York) 13 March 2007.

^[334] See [2.5.6] and [2.5.30]–[2.5.32].

^[335] Legal Issues Roundtable, 13 February 2007.

^[336] For example: Legal Issues Roundtable, 13 February 2007, submissions 2.20 (Mental Health Legal Centre); 3.16 (Springvale Monash Legal Service Inc), 3.23 (Law Institute of Victoria), 3.28 (VLA).

^[337] Submission 3.16 (Springvale Monash Legal Service Inc).

^[338] Submission 2.20 (Mental Health Legal Centre).

^[339] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 1. For a further discussion of the Victorian Human Rights Charter see Section 2.4 of this Report.

^[340] Fardon v Attorney-General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575, 590.

^[341] Ibid 601.

^[342] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 12.

^[343] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 13.

^[344] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 14.

^[345] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 21.

^[346] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 22.

^[347] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 24. See further [2.4.22]–[2.4.23] and [2.4.29]–[2.4.30].

^[348] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25. See further [2.4.29]–[2.4.30] above.

^[349] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 26. See further [2.4.31]–[2.4.34] above.

^[350] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 27.

^[351] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 28. See further [2.4.38] above.

^[352] The failure to produce a statement of compatibility will not affect the validity, operation or enforcement of an Act. See Charter of Human Rights and Responsibilities Act 2006 (Vic) s 29. See further [2.4.16].

^[353] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7(2).

^[354] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7.

^[355] See further sections 3.7 (management), 3.16 (conditions) and 3.17 (accommodation).

^[356] See further Section 3.10 (legal test and standard of proof).

^[357] Crimes (Serious Sex Offenders) Act 2006 (NSW) s 17(3).

^[358] Mental Health Act 1986 (Vic) s 8(1)(e).

^[359] Submission 2.14 (VLA) 4.

^[360] Submissions 3.16 (Springvale Monash Legal Service Inc.), 3.26 (Law Institute of Victoria), 3.28 (VLA).

^[361] Submission 3.24 (South Eastern CASA).

^[362] For example submission 1.4 (Corrections Victoria). See further Sentencing Advisory Council (2007), above n 8, Chapter 7.

^[363] Serious Sex Offenders Monitoring Act 2005 (Vic) s 1. The Council looked at the purposes of post-sentence schemes in a number of other jurisdictions (including New Zealand and the relevant Australian jurisdictions). See further Sentencing Advisory Council (2007), above n 8, [2.1]–[2.12]; [6.39]–[6.44].

^[364] Serious Sex Offenders Monitoring Act 2005 (Vic) s 15(2). The conditions of extended supervision orders are discussed further below.

^[365] Attorney-General (Qld) v Francis [2006] QCA 324 (Unreported, Keane, Holmes JJA and Dutney J, 30 August 2006).

^[366] Ibid [28]–[29].

^[367] See further Section 3.7 below for discussion of the management of offenders on supervision or continued detention orders.

^[368] On the issue of the costs of these schemes, see further [2.5.6] and [2.5.30]–[2.5.32].

^[369] Fardon v Attorney-General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575, 640.

^[370] Meeting with Forensicare on 22 November 2006. Other submissions expressed similar views, for example submissions 3.24 (South Eastern CASA), 3.26 (Law Institute of Victoria), 3.28 (VLA).

^[371] Submission 3.28 (VLA) 5–6.

^[372] Submission 3.17 (S. Johnston). See also for example submissions 3.22 (Office of the Child Safety Commissioner); 3.21 (OPP); 3.24 (South Eastern CASA); 3.27 (G. Bowman); 3.28 (VLA); 3.31 (Victoria Police).

^[373] Submission 3.24 (South Eastern CASA).

^[374] Submission 3.22 (Office of the Child Safety Commissioner).

^[375] Submission 3.15 (confidential).

^[376] Serious Sex Offenders Monitoring Act 2005 (Vic) s 4.

^[377] Serious Sex Offenders Monitoring Act 2005 (Vic) s 3(1).

^[378] Serious Sex Offenders Monitoring Act 2005 (Vic) s 3(1).

^[379] Serious Sex Offenders Monitoring Act 2005 (Vic) Schedule to s 3(1).

^[380] Victoria, Parliamentary Debates, Legislative Assembly, 23 February 2005, 147 (Tim Holding, Minister for Corrections).

^[381] Submissions 3.21 (OPP), 3.22 (Office of the Child Safety Commissioner), 3.23 (South Eastern CASA), 3.31 (Victoria Police).

^[382] Submission 3.22 (Office of the Child Safety Commissioner).

^[383] Patrick Langan and David Levin, Recidivism of Prisoners Released in 1994 (Bureau of Justice Statistics, US Department of Justice, 2002).

^[384] Gelb (2007), above n 9.

^[385] Wood and Ogloff (2006), above n 272, 186–7.

^[386] Submission 3.21 (OPP).

^[387] Submission 3.23 (South Eastern CASA).

^[388] Submission 3.31 (Victoria Police).

^[389] Meeting with Forensicare, 26 February 2007.

^[390] Submission 2.14 (VLA).

^[391] See Appendix 2.

^[392] See, for example, Victims’ Issues Roundtable, 6 February 2007 and Focus Groups 1–6.

^[393] Ibid.

^[394] For example, one study found that only 1.2% of those who had been imprisoned for homicide had been arrested for another homicide within three years of release: Patrick Langan and David Levin, Recidivism of Prisoners Release in 1994 (2002) 1. Of 105 men who had been convicted of homicide (murder, attempted murder and manslaughter) in another study, one was convicted of a further homicide offence, one was convicted of rape and two were convicted of other sexual offences: Peter Burgoyne, Homicide and Recidivism (1979) 7-8.

^[395] See, for example, Submission 3.22 (Office of the Child Safety Commissioner).

^[396] Submissions 3.21 (OPP), 3.22 (Office of the Child Safety Commissioner), 3.23 (South Eastern CASA), 3.31 (Victoria Police). Victims’ Issues Roundtable, 6 February 2007.

^[397] See, for example, s 1 of An Act to Amend the Mental Hygiene Law, the Correction Law, the Criminal Procedure Law, the Executive Law, the Family Court Act and the Judiciary Law, in Relation to the Civil Commitment of Sexually Violent Predators (State of New York).

^[398] Crimes Act 1958 (Vic) s 60B(2)(a)(ii).

^[399] Part 3, Division 2, Subdivision (1A) Sentencing Act 1991 (Vic) and s 3 (definition of ‘serious offence’ for the purposes of the indefinite sentence provisions).

^[400] See further Sentencing Advisory Council (2007), above n 8, [4.6]–[4.8].

^[401] See above footnote 394.

^[402] See, for example, D. Greenberg, J. A. Da Silva and N. Loh, Evaluation of the Western Australian Sex Offender Treatment Unit (1987–1999): A Quantitative Analysis (2002) 1; Smallbone and Wortley, (2000), above n 45, 34. Smallbone and Wortley’s study found that the vast majority of persons committing sex offences against children do not have a diagnosable psychosexual disorder, although many have been treated for depression (23%), drug and alcohol abuse (18%) and anger problems (13%).

^[403] For example, one study of 113 convicted sexual offenders being treated in Ohio, between 1996 and 2001 found that 56% met criteria for antisocial personality disorder, 28% met criteria for borderline personality disorder, and 25% met criteria for narcissistic personality disorder: Joan Arehart-Treichel, ‘Mood, Substance Abuse Disorders Common Among Sex Offenders’ (2004) 39(10) Psychiatric News. See further footnote 329.

^[404] Sentencing Act 1991 (Vic) s 93(1)(a).

^[405] As defined under section 3 of the Sentencing Act 1991 (Vic).

^[406] Sentencing Act 1991 (Vic) s 93(3).

^[407] Sentencing Act 1991 (Vic) s 93A(2).

^[408] Sentencing Act 1991 (Vic) s 93A(4)-(6).

^[409] Serious Sex Offenders Monitoring Act 2005 (Vic) s 3 (the definition of a ‘custodial sentence’ includes orders made under s 93(1)(e) of the Sentencing Act 1991 (Vic)).

^[410] Victoria, Parliamentary Debates, Legislative Assembly, 15 September 2005, 986 (Richard Wynne).

^[411] E-mail from Corrections Victoria, 13 March 2007.

^[412] Personal communication, Liz Penter, Corrections Victoria, 23 April 2007.

^[413] Adult Parole Board (Victoria) (2005), above n 159, 6–7; Adult Parole Board (Victoria) (2006), above n 165, 8.

^[414] Adult Parole Board (Victoria) (2006), above n 165, 8.

^[415] Disability Act 2006 (Vic) s 152.

^[416] Disability Act 2006 (Vic) s 151(4).

^[417] Disability Act 2006 (Vic) ss 151(5), 152(2)(e).

^[418] Disability Act 2006 (Vic) s 183. This scheme comes into operation on 1 July 2007. An intellectually disabled person who presents a serious risk of serious harm and is already receiving residential services may be placed on Supervised Treatment Order (STO): Disability Act 2006 (Vic) s 191. In order to be eligible for this scheme, a person does not have to have committed any criminal offences, but has exhibited a pattern of violent and dangerous behaviour and at the time the application is made, present a significant risk of serious harm to another person. An application is made to the Victorian Civil and Administrative Tribunal, which will only make an order where a treatment plan has been submitted that will be ‘of benefit to the person and substantially reduce the significant risk of serious harm to another person’: Disability Act 2006 (Vic) s 191(6)(c).

^[419] Submissions 2.20 (Mental Health Legal Centre), 3.20 (Office of the Public Advocate), meeting with the Office of the Public Advocate, 15 March 2007.

^[420] Meeting with Department of Human Services, 21 March 2007.

^[421] Victims’ Issues Roundtable 6 February 2007.

^[422] Submission 3.23 (Male Adolescent Program for Positive Sexuality).

^[423] Submissions 3.22 (Office of the Child Safety Commissioner); 3.25 (confidential).

^[424] Submission 3.25 (confidential).

^[425] Disability Act 2006 (Vic) s 152(1)(c).

^[426] Serious Sex Offenders Monitoring Act 2005 (Vic) s 3(1).

^[427] Letter from Corrections Victoria, 27 November 2006. As at 27 November 2006 there were 26 offenders whose sentences were due to expire before the end of 2006 who met the initial eligibility criteria. In 12 cases, the Secretary to the Department of Justice successfully applied for an ESO. A further 13 offenders were assessed as not meeting the application criteria and the state did not proceed with applications. The final offender at that time was undergoing the assessment and application process. As at 19 April 2007 there had been 14 successful applications. One offender is in custody following a breach of his order, and one offender has had his order revoked following a successful appeal to the Court of Appeal: TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 14 VR 109: E-mail from Corrections Victoria, 19 April 2007.

^[428] Letter from Corrections Victoria, 27 November 2006.

^[429] Ibid.

^[430] Sentencing Advisory Council (2007), above n 8, [6.105].

^[431] Ibid.

^[432] Submission 2.15 (Forensicare).

^[433] Ibid.

^[434] Submission 3.34 (Forensicare).

^[435] The Council is indebted to Corrections Victoria and the Queensland, Western Australia and New South Wales Departments of Corrective Services for providing this information.

^[436] Letter from Corrections Victoria, 27 November 2006.

^[437] See for example submission 2.15 (Forensicare).

^[438] For example, submission 3.15 (confidential).

^[439] Letter from Corrections Victoria, 27 November 2006.

^[440] Ibid.

^[441] Serious Sex Offenders Monitoring Act 2005 (Vic) s 6.

^[442] Serious Sex Offenders Monitoring Act 2005 (Vic) s 10(4).

^[443] Serious Sex Offenders Monitoring Act 2005 (Vic) s 10(2).

^[444] Serious Sex Offenders Monitoring Act 2005 (Vic) s 7.

^[445] Serious Sex Offenders Monitoring Act 2005 (Vic) s 7A. See further Sentencing Advisory Council (2007), above n 8, [6.138].

^[446] Serious Sex Offenders Monitoring Act 2005 (Vic) s 28.

^[447] Serious Sex Offenders Monitoring Act 2005 (Vic) s 3(1).

^[448] Serious Sex Offenders Monitoring Act 2005 (Vic) s 8(2).

^[449] Serious Sex Offenders Monitoring Act 2005 (Vic) s 8(1).

^[450] Serious Sex Offenders Monitoring Act 2005 (Vic) s 10(1).

^[451] Serious Sex Offenders Monitoring Act 2005 (Vic) s 10(4).

^[452] Serious Sex Offenders Monitoring Act 2005 (Vic) s 11(3), 34.

^[453] Sentencing Act 1991 (Vic) s 18B(2).

^[454] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 8(2); Dangerous Sexual Offenders Act 2006 (WA) s 14(2); Crimes (Serious Sex Offenders) Act 2006 (NSW) s 15(4).

^[455] Crimes (Serious Sex Offenders) Act 2006 (NSW) ss 7(4), 15(4).

^[456] New South Wales, Parliamentary Debates, Legislative Council, 30 March 2006, 2181 (Tony Kelly, Minister for Justice).

^[457] Crimes (Serious Sex Offenders) Act 2006 (NSW) s 9(3)(c).

^[458] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 11(2); Dangerous Sexual Offenders Act 2006 (WA) s 37(2).

^[459] Crimes (Serious Sex Offenders) Act 2006 (NSW) s 9(3)(c).

^[460] Crimes (Serious Sex Offenders) Act 2006 (NSW) s 9(3)(d).

^[461] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 11(9); Dangerous Sexual Offenders Act 2006 (WA) s 37(4).

^[462] E-mails from Queensland Corrective Services, 8 December 2006 and Western Australian Correctional Services, 8 December 2006.

^[463] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 45(2).

^[464] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ss 45(3)–(4).

^[465] Parole Act 2002 (NZ) s 107F(2); Sentencing Act 2002 (NZ) s 4 (definition of ‘health assessor’).

^[466] Parole Act 2002 (NZ) 107F(2).

^[467] Meeting with Forensicare, 22 November 2006; submission 3.34 (Forensicare).

^[468] Submission 2.15 (Forensicare—Professor James Ogloff) 2.

^[469] Meeting with Forensicare, 25 October 2006; submission 3.20 (Office of the Public Advocate).

^[470] Meeting with Forenicare, 25 October 2006.

^[471] Ibid.

^[472] Meetings with Forenicare, 25 October 2006; 22 November 2006.

^[473] Submission 3.15 (confidential).

^[474] Ibid.

^[475] Focus Group 2.

^[476] State of Victoria, Department of Justice, ‘The Corrections Inspectorate’ <www.justice.vic.gov.au/wps/wcm/ connect/DOJ+Internet/Home/About+Us/Our+Organisation/Business+Area+Profiles/JUSTICE+-+Corrections+ Inspectorate> at 10 April 2007. The Corrections Inspectorate is required to provide independent, objective and accurate advice to the Minister for Corrections and Secretary to the Department of Justice on the operation of the corrections system to ensure that: the corrections system acts in a fair, transparent and accountable manner towards all prisoners; the management of the corrections system minimises risk to the safety of prisoners, staff, visitors to prisons and the community at large; the corrections system provides humane prison environments to required standards of service delivery: Ibid.

^[477] Victorian Law Reform Commission, People with Intellectual Disabilities at Risk: A Legal Framework for Compulsory Care (2003) Recommendation 9.

^[478] State of Victoria, Department of Human Services, ‘The Office of the Senior Practitioner’ <http://nps718. dhs.vic.gov.au/ds/disabilitysite.nsf/sectiontwo/senior_practitioner?open> at 2 April 2007.

^[479] Ibid.

^[480] Disability Act 2006 (Vic) s 27.

^[481] The inclusion of this type of information was suggested at a meeting with Forensicare on 25 October 2006.

^[482] Serious Sex Offenders Monitoring Act 2005 (Vic) ss 16(1) and 16(2).

^[483] Serious Sex Offenders Monitoring Act 2005 (Vic) s 16(4).

^[484] Corrections Act 1998 (Vic) s 73(2). Department of Justice employees are provided for the supervision of offenders on extended supervision orders pursuant to section 70(ab).

^[485] Australian Community Support Association, Annual Report 2006 (2006) 35–6.

^[486] Queensland Corrective Services Assessment Management and Supervision of Sex Offenders in Queensland, Information Paper (2006) 4. <www.correctiveservices.qld.gov.au/Publications/Corporate _Publications/Miscellaneous_Documents/SOP%20policy%20paperv5b.pdf > at 27 November 2006.

^[487] Ibid 8.

^[488] Ibid 9. The Offender Progression and Review Committee meets monthly and considers key decisions of high-risk offenders including those subject to post-sentence orders. See further Sentencing Advisory Council (2007), above n 8, [6.279].

^[489] Crimes (Administration of Sentences) Act 1999 (NSW) s 197(2)(a).

^[490] Crimes (Administration of Sentences) Act 1999 (NSW) s 197(2)(b).

^[491] Crimes (Administration of Sentences) Act 1999 (NSW) s 197(2)(c).

^[492] Criminal Justice (Scotland) Act 2003 (UK), Part 1, ss 6 and 7. The Lead Authority for a given offender will vary depending upon the location of the offender. When the offender’s status changes, so too will the responsible authority (for example when an offender is released into the community on licence): Scottish Executive, Serious Violent and Sexual Offenders (2001) 17.

^[493] Criminal Justice (Scotland) Act 2003 (UK), Part 1, ss 8(2) and (3).

^[494] Scottish Executive, Serious Violent and Sexual Offenders (2001) 17.

^[495] Criminal Justice (Scotland) Act 2003 (UK), Part 1, s 6(3).

^[496] Scottish Executive, Serious Violent and Sexual Offenders (2001) 29. See further Sentencing Advisory Council (2007), above n 8, [6.286]–[6.288].

^[497] Criminal Justice (Scotland) Act 2003 (UK), Part 1, s 8(4)–(6). See further Sentencing Advisory Council (2007), above n 8, [6.288].

^[498] Victorian Government Department of Human Services, Multiple and Complex Needs Initiative (2004) 2.

^[499] Human Services (Complex Needs) Act 2003 (Vic) s 1(b).

^[500] Victorian Government Department of Human Services, Care Plan Assessments Victoria,

The Multiple and Complex Needs Initiative <www.dhs.vic.gov.au/complexclients/cpav.htm> at 16 October 2006.

^[501] Human Services (Complex Needs) Act 2003 (Vic) s 21.

^[502] Human Services (Complex Needs) Act 2003 (Vic) s 22.

^[503] Victoria, Parliamentary Debates, Legislative Assembly, 10 August 2006, 2802 (Bronwyn Pike, Minister for Health).

^[504] Submission 3.15 (confidential).

^[505] Attorney-General (Qld) v Francis [2005] QSC 381; (2005) 158 A Crim R 399, 407.

^[506] Ibid 409.

^[507] See further Sentencing Advisory Council (2007), above n 8, [3.83]–[3.93]; [5.16]–[5.21]; [6.294]–[6.301].

^[508] Focus Group 3. See also submission 3.4 (P. Nathan). Ms Nathan is concerned that potentially dangerous offenders may be able to simulate ‘compliance ... and responsivity to treatment.’

^[509] For example, submission 1.7 (Victoria Police) 4–5.

^[510] For example, Submissions 2.13 (S. Healey), 2.14, 3.23 (VLA), 2.17 (confidential), 2.20 (Mental Health Legal Centre), 3.23 (Law Institute of Victoria), 3.34 (Forensicare). See further Sentencing Advisory Council (2007), above n 8, [6.295]–[6.296].

^[511] Meeting with Forensicare, 22 November 2006; submissions 1.5 (Criminal Bar Association) 2, 1.6 (Victorian Bar Council); 3.24 (South Eastern CASA), 3.28 (VLA), 3.34 (Forensicare) See further discussion of reciprocal obligation at [3.10.37]–[3.10.51] and Sentencing Advisory Council (2007), above n 8, [6.299]–[6.300].

^[512] Submission 2.14 (VLA) 10.

^[513] See Sentencing Advisory Council (2007), above n 8, [6.290]–[6.303].

^[514] Submission 2.14 (VLA) 8. See also Sentencing Advisory Council (2007), above n 8, [6.290]–[6.291].

^[515] This was an important consideration in the MacLean Committee’s recommendation in Scotland that a separate body be established to oversee the development and delivery of risk management plans and to review the progress of the offender under these plans at regular intervals. See further Sentencing Advisory Council (2007), above n 8, [6.290]–[6.291]; Scottish Executive, Report of the Committee on Serious Violent and Sexual Offenders Chairman: Lord Maclean, SE/2000/68 (2000) 23.

^[516] See further [2.3.34]–[2.3.39].

^[517] Sentencing Advisory Council (2007), above n 8, [6.28].

^[518] See for example, submissions 3.21 (OPP), 3.23 (South Eastern CASA), 3.34 (Forensicare). Submission 3.27 (G. Bowman) supported the establishment of a panel if such a move would ‘help ensure managing offenders [is] shared by agencies in the community’.

^[519] Submission 3.31 (Victoria Police).

^[520] Submission 3.34 (Mental Health Legal Centre).

^[521] Submission 3.15 (confidential).

^[522] Ibid.

^[523] Ibid.

^[524] Some of the perceived advantages of this were suggested to be that: the entire sentence would be managed by the same [Drug Court] judge who is independent, expert, and reinforces the criminal law as well as acting as the offender’s ‘case manager’ to monitor the offender and appropriately motivate change; the order and conditions (including rehabilitation and treatment conditions) are compulsory, and treatment is provided immediately which provides an incentive for offenders to participate in behaviour change; a high risk offender’s treatment and rehabilitation would occur separately from the general prison population with specifically trained staff to address his or her physical, social and psychological needs in an effort to reduce the likelihood of reoffending; the overall sentence is finite, while providing for an offender to be held in a particular stage beyond six months depending on his or her progress; and a staged approach allows for the offender’s gradual reintegration into the community with a return to detention if necessary and ongoing contact with the CDTCC staff. This submission further suggested: ‘Families who will act as ‘sponsors’ feel supported by the close monitoring and support provided by CDTCC staff rather than feeling that their relative is being “dumped” on them to manage’: Submission 3.15 (confidential).

^[525] Submission 3.18 (Supreme Court of Victoria).

^[526] Submission 3.17 (S Johnston).

^[527] Submission 3.18 (Supreme Court of Victoria).

^[528] Department of Justice, Victoria, Adult Parole Board (2006) <www.justice.vic.gov.au/wps/wcm/connect/ DOJ+Internet/Home/About+Us/Our+Organisation/Business+Area+Profiles/JUSTICE+-Adult+Parole+Board> at 9 January 2007.

^[529] Corrections Act 1986 (Vic) s 69(2); Sentence Administration Act 2003 (WA) s 115; Parole of Prisoners Act 1971 (NT) s 3HA.

^[530] This is by virtue of section 27 of the Bill of Rights Act 1990 (NZ), which guarantees that any Tribunal will apply natural justice principles in making a decision that will affect any person.

^[531] Butterworths, ‘[10.868] Common law and the Administrative Decisions (Judicial Review) Act 1977’, Halsbury’s Laws of Australia, available at <www.lexisnexis.com.au> at 26 March 2007.

^[532] Ibid.

^[533] See Fletcher v Secretary to Department of Justice and Anor [2006] VSC 354.

^[534] The functions of the Mental Health Review Board include hearing appeals by or on behalf of involuntary patients and security patients, reviewing orders made, and treatment plans for involuntary patients and security patients, and hearing appeals against the transfer of involuntary patients and security patients: Mental Health Act 1986 (Vic) s 22(1).

^[535] The functions of the Forensic Leave Panel are to hear applications for leave of absence, and appeals in respect of special leave of absence applications, by forensic patients and forensic residents: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 60.

^[536] Mental Health Act 1986 (Vic) ss 24(1)(c) and 24(3); Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 64(1)(c) and 65.

^[537] Mental Health Act 1986 (Vic) ss 24(1)(b); Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 64(1)(b).

^[538] Mental Health Act 1986 (Vic) ss 26(1), 26(3); Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 70(1). `However, the Mental Health Board may order that the patient not appear in person if satisfied that the appearance would be detrimental to the patient’s health: Mental Health Act 1986 (Vic) s 26(6).

^[539] Mental Health Act 1986 (Vic) s 26(5).

^[540] Mental Health Act 1986 (Vic) s 33; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 71.

^[541] Mental Health Act 1986 (Vic) s 120.

^[542] Mental Health Act 1986 (Vic) s 118. This may be done by the Board, of its own motion, or on the application of a person who is a party to the proceedings.

^[543] Submission 3.26 (Law Institute of Victoria).

^[544] Mental Health Act 1986 (Vic) s 26(8); Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 70(5).

^[545] Mental Health Act 1986 (Vic) s 26(9); Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 70(6).

^[546] Corrections Act 1986 (Vic) ss 30(1)–(2).

^[547] Corrections Act 1986 (Vic) s 30(3).

^[548] The value of a penalty unit fixed under section 6 of the Monetary Units Act 2004 (Vic) for the financial year commencing 1 July 2006 is $107.43: Victorian Government Gazette, 6 April 2006, 680.

^[549] Mental Health Act 1986 (Vic) s 35(1).

^[550] Mental Health Act 1986 (Vic) ss 34 and 35(1).

^[551] Mental Health Act 1986 (Vic) s 35(2).

^[552] Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 62.

^[553] The value of a penalty unit fixed under section 6 of the Monetary Units Act 2004 (Vic) for the financial year commencing 1 July 2006 is $107.43: Victorian Government Gazette, 6 April 2006, 680.

^[554] Serious Sex Offenders Monitoring Act 2005 (Vic) ss 16(1) and 16(2).

^[555] Corrections Act 1986 (Vic) ss 72(1)(bd)–(be).

^[556] Corrections Act 1986 (Vic) s 72(5).

^[557] Corrections Act 1986 (Vic) s 72(4).

^[558] Corrections Act 1986 (Vic) s 73(2).

^[559] Corrections Act 1986 (Vic) s 104J (applies in cases where the Secretary instructs or directs a monitored person to attend a community corrections centre) and 104M (applies where the Secretary has issued an instruction or direction to a monitored person to receive visits from an officer). An ‘officer’ for the purposes of this section may be a Regional Manager, a community corrections officer, a volunteer who is working at a location, or an officer or employee in the public service: Corrections Act 1986 (Vic) ss 104E and 85.

^[560] Corrections Act 1986 (Vic) s 71.

^[561] Corrections Act 1986 (Vic) s 71.

^[562] Corrections Act 1986 (Vic) s 73(1).

^[563] Corrections Act 1986 (Vic) s 73(2).

^[564] Corrections Act 1986 (Vic) s 74(1).

^[565] Corrections Act 1986 (Vic) s 74(2).

^[566] Corrections Act 1986 (Vic) s 74(5).

^[567] Corrections Act 1986 (Vic) s 77.

^[568] Corrections Regulations 1998 (Vic) Schedule 4, Form 1.

^[569] Corrections Regulations 1998 (Vic) Schedule 4, Form 1.

^[570] Adult Parole Board (Victoria) (2006), above n 165, 19.

^[571] Ibid 8.

^[572] Ibid.

^[573] Serious Sex Offenders Monitoring Act 2005 (Vic) s 16(3).

^[574] Submission 3.21 (OPP).

^[575] Ibid.

^[576] Submission 3.23 (South Eastern CASA).

^[577] Submission 3.16 (Springvale Monash Legal Service Inc).

^[578] Ibid.

^[579] Submissions 3.21 (OPP); 3.23 (South Eastern CASA).

^[580] Criminal Justice (Scotland) Act 2003 (UK) Schedule 2.

^[581] Risk Management Authority, Who We Are (2006) <www.rmascotland.gov.uk/whoweare.aspx> at 21 December 2006.

^[582] Human Services (Complex Needs) Act 2003 (Vic) s 6(5).

^[583] Submission 3.31 (Victoria Police).

^[584] Ibid.

^[585] Submission 3.21 (OPP).

^[586] Submission 3.22 (Office of the Child Safety Commissioner).

^[587] Ibid.

^[588] Ibid.

^[589] Submission 3.23 (South Eastern CASA).

^[590] Submission 3.16 (Springvale Monash Legal Service Inc).

^[591] Serious Sex Offenders Monitoring Act 2005 (Vic) s 14.

^[592] Serious Sex Offenders Monitoring Act 2005 (Vic) ss 6–7.

^[593] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 5; Crimes (Serious Sex Offenders) Act 2006 (NSW) s 6(1)(a)(i).

^[594] Dangerous Sexual Offenders Act 2006 (WA) s 8.

^[595] Dangerous Sexual Offenders Act 2006 (WA) ss 6(1), 8.

^[596] Director of Public Prosecutions for Western Australia v Williams [2006] WASC 140; Director of Public Prosecutions for Western Australia v Allen [2006] WASC 160; The State of Western Australia v Latimer [2006] WASC 235; The State of Western Australia v Alvisse [2006] WASC 279; Director of Public Prosecutions for Western Australia v Mangolamara [2007] WASC 7.

^[597] For example: meeting with Forensicare, 26 February 2007; submissions 3.24 (South Eastern CASA); 3.27 (G. Bowman); 3.34 (Forensicare).

^[598] For example: Legal Issues Roundtable, 13 February 2007; submission 3.26 (Law Institute of Victoria).

^[599] Submission 3.26 (Law Institute of Victoria).

^[600] Submission 3.21 (OPP).

^[601] Ibid.

^[602] Ibid.

^[603] Submission 3.31 (Victoria Police).

^[604] For example, in Western Australia the DPP (or Attorney-General) must file an application in the Supreme Court which states the orders sought and which is accompanied by any affidavits which are to be relied upon: Dangerous Sexual Offenders Act 2006 (WA) s 8.

^[605] Dangerous Sexual Offenders Act 2006 (WA) s 9.

^[606] Dangerous Sexual Offenders Act 2006 (WA) ss 6(1), 8.

^[607] The importance of this in a prosecutorial context was the subject of comment by Justice Coldrey during his time as the Victorian DPP. He put the problem as follows: ‘It is not suggested that an Attorney-General would seek to act other than honourably in making a prosecutorial determination. However, given the potency of these pressures, the processes of evaluation central to decision making may well be affected by considerations (albeit subconscious) extending beyond that appropriate to a specific case ... On a more tangible level, a major problem exists when the prosecutorial discretion must be exercised in a controversial or politically sensitive circumstances. There is a real potential that such decisions will become subject to distortion or misconstruction if they are drawn into the ambit of party political debate or alternatively, will be perceived as having been motivated by political partisanship. It is not to the point that such assertions and perceptions may be factually groundless. The damage that is created is that the necessary public confidence in the administration of the criminal law will be eroded’: Geoffrey Flatman QC, ‘Independence of the Prosecutor’ (Paper delivered to the Australian Institute of Criminology Conference, Prosecuting Justice, 18–19 April 1996, Melbourne) 2–3.

^[608] On the screening of offenders, see Section 3.5.

^[609] Crimes (Serious Sex Offenders) Act 2006 (NSW) s 25(1).

^[610] Crimes (Serious Sex Offenders) Act 2006 (NSW) s 25(2).

^[611] Serious Sex Offenders Monitoring Act 2005 (Vic) s 4.

^[612] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 5(2)(c); Crimes (Serious Sex Offenders) Act 2006 (NSW) ss 6(2) (extended supervision orders) and 14(2) (continuing detention orders).

^[613] Dangerous Sexual Offenders Act 2006 (WA) s 8(3).

^[614] Submission 3.15 (confidential).

^[615] Submission 3.21 (OPP).

^[616] Ibid.

^[617] Submissions 3.12 (confidential), 3.13 (Centres Against Sexual Assault), 3.24 (South Eastern CASA).

^[618] For example, submissions 1.5 (Criminal Bar Association); 2.6 (Victorian Criminal Justice Coalition); 2.14 (VLA); 3.16 (Springvale Monash Legal Service Inc); Focus Group 3, Focus Group 5.

^[619] On the operation of the HRO Board, see further Section 3.7.

^[620] The test in the relevant Australian jurisdictions is set out in the Council’s Discussion Paper at [6.165]–[6.169]. The test and matters relevant to satisfying that test in schemes in other jurisdictions such as New Zealand, Scotland, the United Kingdom and Canada are set out in the Discussion Paper at [6.170]–[6.176]: Sentencing Advisory Council (2007), above n 8.

^[621] Ibid [6.164]. Indefinite sentences are a sentencing option for certain high-risk offenders.

^[622] Serious Sex Offenders Monitoring Act 2005 (Vic) s 11(1): ‘Relevant offences’ are set out in the schedule to the Act. See [3.4.2] above for discussion of the offences to which the scheme applies. The interpretation of the Victorian test is discussed further in Sentencing Advisory Council (2007), above n 8, [6.189].

^[623] Serious Sex Offenders Monitoring Act 2005 (Vic) s 11(2).

^[624] R v Carr [1996] VicRp 43; [1996] 1 VR 585, 590.

^[625] TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 14 VR 109, 121. See further Sentencing Advisory Council (2007), above n 8, [6.162]; Appendix 1 (Case Study 1).

^[626] See further [2.4.4].

^[627] See further Section 3.23.

^[628] Sentencing Act 1991 (Vic) s 18B(1).

^[629] Crimes (Serious Sex Offenders) Act 2006 (NSW) ss 9(2) (extended supervision order), 17(3) (continuing detention order).

^[630] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13; Dangerous Sexual Offenders Act 2006 (WA) s 7(1).

^[631] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13(2). The Western Australian legislation is framed in similar terms: Dangerous Sexual Offenders Act 2006 (WA) s 7(1).

^[632] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13(3); Dangerous Sexual Offenders Act 2006 (WA) s 7(2).

^[633] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13(7); Dangerous Sexual Offenders Act 2006 (WA) s 7(2).

^[634] Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575. See for example: 593 (Gleeson CJ); 596–7 (McHugh J).

^[635] See further Sentencing Advisory Council (2007), above n 8, [6.167]. Since the Queensland scheme came into operation there have been 25 successful applications, with eight resulting in a continuing detention order and 18 in supervision orders (in one case a continuing detention order was subsequently changed to an order for extended supervision).

^[636] Crimes (Serious Sex Offenders) Act 2006 (NSW) ss 17(2)–(3).

^[637] Crimes (Serious Sex Offenders) Act 2006 (NSW) s 17(4)(a).

^[638] See in particular Sentencing Advisory Council (2007), above n 8, [6.182]–[6.196].

^[639] Submission 2.24 (Forensicare—Paul Mullen) 2–3.

^[640] TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 14 VR 109, 121. (Callaway AP). The facts of the case are described in detail in the Council’s Discussion Paper: Sentencing Advisory Council (2007), above n 8, Appendix 1 (Case Study 1).

^[641] Serious Sex Offenders Monitoring Act 2005 (Vic) s 8(2).

^[642] Jean Floud and Warren Young, Dangerousness and Criminal Justice (1981) 5.

^[643] Ibid 24–5.

^[644] Ibid 25.

^[645] Ogloff (2006), above n 41.

^[646] Barr v The Chief Executive of the Department of Corrections CA60/06 (Unreported, 20 November 2006) [32].

^[647] See further Sentencing Advisory Council (2007), above n 8, [6.182]–[6.196].

^[648] Sullivan, Mullen and Pathé (2005), above n 167, 319.

^[649] Astrid Birgden, ‘Sex offender Laws and Human Rights: A Therapeutic Jurisprudence Perspective’ (Paper presented at the Australian and New Zealand Association for Psychiatry, Psychology and Law, 26^th Annual Congress, Lorne, Victoria, 9-12 November 2006). See further Sentencing Advisory Council (2007), above n 8, [6.182]–[6.196].

^[650] Bail Act 1977 (Vic) s 4(2)(d)(i).

^[651] Re Application for Bail by Haidy (aka Vasailley) [2004] VSC 247 (Unreported, Redlich J, 22 April 2004) [16] and [18].

^[652] See, for example, John Fogarty, 'Unacceptable Risk: A Return to Basics' (2006) 20 Australian Journal of Family Law 249, 251.

^[653] See, for example, Attorney-General for Queensland v Twigge [2006] QSC 107 (Unreported, Mullins J, 17 May 2006).

^[654] Marc Miller and Norval Morris, 'Predictions of Dangerousness: An Argument for Limited Use' (1988) 3 (4) Violence and Victims 263, 268.

^[655] Attorney-General (Qld) v Sutherland [2006] QSC 268 (Unreported, 27 September 2006, McMurdo J) [30].

^[656] Fardon v Attorney-General (Qld) (2004) 233 CLR 575, 593 (Gleeson CJ).

^[657] Ibid.

^[658] David Ruschena, 'Determining Dangerousness: Whatever Happened to the Rules of Evidence?' (2003) 10 (1) Psychiatry, Psychology and Law 122, 123, citing Macquarie Dictionary (1997, 3rd edition).

^[659] Anthony Bottoms and Roger Brownsword, 'The Dangerousness Debate After the Floud Report' (1982) 22 (3) British Journal of Criminology 229, 251.

^[660] For example: submissions 3.21 (OPP), 3.24 (South Eastern CASA).

^[661] Submission 3.31 (Victoria Police).

^[662] Fardon v Attorney General (Qld) [2004] HCA 46; (2004) 223 CLR 575, 597 (McHugh J), 616 (Gummow J).

^[663] Submissions 1.3, 3.28 (VLA), 1.5 (Criminal Bar Association). The VLA commented: ‘[t]he standard of proof should be the same as for any other criminal matter—i.e. ‘beyond reasonable doubt’. Our legal system is based the premise that it is unreasonable to detain a person unless we are sure that the person committed the offence. There is no justification for applying a lower standard to detaining a person for an offence that they have not yet committed.’

^[664] Submission 3.18 (Supreme Court of Victoria).

^[665] R v Carr [1996] VicRp 43; [1996] 1 VR 585, 590.

^[666] Submission 3.32 (Criminal Bar Association). However it should be noted that the CBA submission was made in the context of discussing a continuing detention scheme based on a medical model rather than a criminal justice or hybrid model.

^[667] Submission 3.27 (G. Bowman).

^[668] Submission 3.28 (VLA).

^[669] The Victorian Court of Appeal expressly recognised this principle in R v McCracken (1988) 38 A Crim R 92 in refusing a Crown appeal against a community-based order imposed on a sex offender. The court found that it was open to the sentencing judge to determine that a community-based order was appropriate, even though the offender had committed offences while on a previously imposed community-based order, in light of the failure on the part of the treating psychiatrist and the community corrections officer to provide appropriate control, supervision and treatment under the previous order.

^[670] Arie Freiberg, Pathways to Justice: Sentencing Review 2002 (2002) 44.

^[671] Ibid 105.

^[672] Submissions 1.5 (Criminal Bar Association), 2.14, 3.28 (VLA); 3.21 (OPP), 3.24 (South Eastern CASA).

^[673] See also Christopher Slobogin, ‘A Jurisprudence of Dangerousness’ (2003) 98 Northwestern University Law Review 1, 6. This point was also raised at a meeting with Forensicare, 22 November 2006.

^[674] Submission 1.5 (Criminal Bar Association) 2.

^[675] Ibid.

^[676] Submission 2.14 (VLA) 10.

^[677] Queensland Corrective Services Assessment Management & Supervision of Sex Offenders in Queensland Information Paper (October 2006) 8 <www.correctiveservices.qld.gov.au/Publications/Corporate_ Publications/Miscellaneous_Documents/SOP%20policy%20paperv5b.pdf> at 27 November 2006.

^[678] Fardon v Attorney General (Qld) [2004] HCA 46; (2004) 223 CLR 575, 620 (Gummow J).

^[679] Disability Act 2006 (Vic) s 191(6)(b). The test requires VCAT to consider whether ‘there is a significant risk of serious harm to another person which cannot be substantially reduced by using less restrictive means’.

^[680] Serious Sex Offenders Monitoring Act 2005 (Vic) s 29. The Queensland and Western Australian post-sentence schemes also provide the right to appear: (Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 49; Dangerous Sexual Offenders Act 2006 (WA) s 44. See further Sentencing Advisory Council (2007), above n 8, [6.388]–[6.391]).

^[681] Serious Sex Offenders Monitoring Act 2005 (Vic) ss 10, 33.

^[682] Serious Sex Offenders Monitoring Act 2005 (Vic) s 11(4), (5).

^[683] See further Sentencing Advisory Council (2007), above n 8, [6.388]–[6.391].

^[684] E-mail from VLA, 15 January 2007.

^[685] Ibid.

^[686] Submission 3.28 (VLA).

^[687] For example: submissions 2.20 (Mental Health Legal Centre); 1.3, 3.28 (VLA); 3.24 (South Eastern CASA); 3.21 (OPP); 3.16 (Springvale Monash Legal Service Inc).

^[688] Submission 3.28 (VLA).

^[689] Ibid.

^[690] Ibid.

^[691] See further Sentencing Advisory Council (2007), above n 8, [6.393]–[6.395]. The right to a fair trial was considered by the High Court of Australia in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292. See further Sentencing Advisory Council (2007), above n 8, [6.394]; George Zdenkowski, ‘Defending the Indigent Accused in Serious Cases: A Legal Right to Counsel?’ (1994) 18 Criminal Law Journal 135; Sam Garkawe, ‘Human Rights in the Administration of Justice: Dietrich v The Queen’ [1994] AUJlHRights 22; (1994) 1 Australian Journal of Human Rights 371.

^[692] Serious Sex Offenders Monitoring Act 2005 (Vic) s 26; Dangerous Sexual Offenders Act 2006 (WA) s 40.

^[693] Crimes (Serious Sex Offenders) Act 2006 (NSW) s 21.

^[694] Charles Pollard, ‘Victims and the Criminal Justice System: A New Vision’ (2000) Criminal Law Review 5.

^[695] Tracey Booth, ‘Restoring Victims’ Voices: Victim Impact Statements in the Sentencing Process’ (2005) 86 Reform 59.

^[696] R v P [1992] FCA 626; (1992) 111 ALR 541.

^[697] Ibid 545.

^[698] This Act commenced operation on 1 November 2006.

^[699] Victims’ Charter Act 2006 (Vic) s 17(2).

^[700] Victims’ Charter Act 2006 (Vic) s 17(4).

^[701] Serious Sex Offenders Monitoring Act 2005 (Vic) s 16A.

^[702] Serious Sex Offenders Monitoring Act 2005 (Vic) s 16B(1).

^[703] Serious Sex Offenders Monitoring Act 2005 (Vic) s 16B(2).

^[704] Serious Sex Offenders Monitoring Act 2005 (Vic) s 16B(3).

^[705] Dangerous Sexual Offenders Act 2006 (WA) s 40.

^[706] Section 24 of the Sentencing Act 1995 (WA) enables a victim to make a victim impact statement.

^[707] Parole Act 2002 (NZ) s 107H(4).

^[708] Parole Act 2002 (NZ) s 107H(5)

^[709] Parole Act 2002 (NZ) ss 107K(6) and (7).

^[710] Submission 2.7 (The Hon. Dianne Hadden MLC, Member for Ballarat Province).

^[711] For example: submissions 3.21 (OPP); 3.24 (South Eastern CASA); 3.31 (Victoria Police).

^[712] Submission 3.24 (South Eastern CASA).

^[713] Submission 3.13 (Centres Against Sexual Assault Forum).

^[714] Submission 3.21 (OPP). The issue of suppression is discussed in Section 3.22 of this Report.

^[715] Submission 3.27 (G. Bowman).

^[716] Ibid.

^[717] For example submission 2.20 (Mental Health Legal Centre).

^[718] Submission 2.20 (Mental Health Legal Centre).

^[719] For example: submissions 3.24 (South Eastern CASA); 2.20 (Mental Health Legal Centre).

^[720] Submission 3.13 (Centres Against Sexual Assault Forum).

^[721] Submission 3.24 (South Eastern CASA).

^[722] Submission 3.21 (OPP).

^[723] Serious Sex Offenders Monitoring Act 2005 (Vic) s 5(3).

^[724] Serious Sex Offenders Monitoring Act 2005 (Vic) s 30.

^[725] Crimes (Serious Sex Offenders) Act 2006 (NSW) ss 8 (interim extended supervision order) and 16 (interim continuing detention order); Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 9A. See further Sentencing Advisory Council (2007), above n 8, [6.125]–[6.131]. In contrast to Queensland, which allows interim supervision orders and interim continuing detention orders, in Western Australia there is only a power to make an interim continuing detention order. This means that if the offender is permitted to be at liberty until the final hearing (instead of in detention), there is no mechanism to compel the offender’s attendance at the final hearing or to control the offender while he or she is in the community. This was identified by the Western Australian Supreme Court as ‘a weakness in the statutory scheme which ought to be remedied’: (The State of Western Australia v Latimer [2006] WASC 235 (Unreported, Murray J, 30 October 2006) [7]).

^[726] Dangerous Sexual Offenders Act 2006 (WA) s 14. This has been identified as a weakness in the scheme as if a court allows an offender to be at liberty before the final hearing, there is no mechanism to compel the offender’s attendance at the final hearing or to control the offender while he or she is in the community: The State of Western Australia v Latimer [2006] WASC 235 (Unreported, Murray J, 30 October 2006) [7].

^[727] Crimes (Serious Sex Offenders) Act 2006 (NSW) ss 8 (interim extended supervision order), 16 (interim continuing detention order).

^[728] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 6; Dangerous Sexual Offenders Act 2006 (WA) s 12.

^[729] Attorney-General (NSW) v Gallagher [2006] NSWSC 340 (Unreported, McClellan CJ, 13 April 2006).

^[730] See further Sentencing Advisory Council (2007), above n 8, [6.121]–[6.133].

^[731] For example: submissions 3.21 (OPP), 3.31 (Victoria Police).

^[732] For example: submission 3.31 (Victoria Police).

^[733] Submissions 3.21 (OPP).

^[734] Submission 3.27 (G. Bowman).

^[735] Ibid.

^[736] Serious Sex Offenders Monitoring Act 2005 (Vic) s 27.

^[737] Serious Sex Offenders Monitoring Act 2005 (Vic) s 32.

^[738] Crimes (Serious Sex Offenders) Act 2006 (NSW) ss 7 (extended supervision order), 15 (continuing detention order).

^[739] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 5; Dangerous Sexual Offenders Act 2006 (WA) s 11(2).

^[740] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 5; Dangerous Sexual Offenders Act 2006 (WA) s 11(3).

^[741] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 8; Dangerous Sexual Offenders Act 2006 (WA) s 14. See Section 3.6 for a further discussion of risk assessment.

^[742] Submission 3.21 (OPP).

^[743] Submission 3.31 (Victoria Police).

^[744] Serious Sex Offenders Monitoring Act 2005 (Vic) s 5(2).

^[745] Submissions 3.21 (OPP), 3.31 (Victoria Police)

^[746] Submission 3.28 (VLA). It should be noted that the Supreme Court’s power under the legislation to declare a provision invalid does not come into force until 1 January 2008.

^[747] Submission 3.18 (Supreme Court of Victoria).

^[748] Submission 3.26 (Law Institute of Victoria).

^[749] Submission 3.24 (South Eastern CASA). This view was also raised at the Legal Issues Roundtable, 13 February 2007.

^[750] Submission 3.33 (Mental Health Legal Centre).

^[751] Submission 3.11 (Crime Victims Support Association).

^[752] Submission 3.32 (Criminal Bar Association).

^[753] Victims’ Issues Roundtable , 6 February 2007, Legal Issues Roundtable 13 February 2007.

^[754] Massachusetts General Law, Part 1, Title 17, c 123A, s 14(a). See also Commonwealth of Massachusetts Superior Court, Sexually Dangerous Persons Handbook (Paper presented at the Judicial Education Conference, Chatham, Massachusetts, 3–5 November 2005) 25–6.

^[755] Kate Gibbs, ‘Gleeson bolsters support for civil juries’, Lawyer’s Weekly (Sydney) 23 February 2007, 6.

^[756] Floud and Young (1981), above n 642, 36. This argument is supported by Professor Alan Dershowitz, who argues that the ‘decision to confine someone on the basis of prediction is a social policy judgement to be made by the community’: Alan Dershowitz as quoted in Floud and Young (1981), above n 642, 36.

^[757] For example, submission 3.21 (OPP).

^[758] Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575, 588 (Gleeson CJ); 602 (McHugh J); 658 (Callinan and Heydon JJ).

^[759] The scheme in Massachusetts requires a unanimous decision: Massachusetts General Law, Part 1, Title 17, c 123A, s 14(d).

^[760] Submission 3.26 (Law Institute of Victoria).

^[761] Ibid.

^[762] Legal Issues Roundtable, 13 February 2007; submission 3.26 (Law Institute of Victoria).

^[763] Submission 3.18 (Supreme Court of Victoria).

^[764] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 36.

^[765] Submission 3.18 (Supreme Court of Victoria).

^[766] See further Sentencing Advisory Council (2007), above n 8, [6.224].

^[767] Serious Sex Offenders Monitoring Act 2005 (Vic) s 15(3).

^[768] Serious Sex Offenders Monitoring Act 2005 (Vic) s 15(3)(g)–(h).

^[769] Serious Sex Offenders Monitoring Act 2005 (Vic) ss 16(1)–16(2).

^[770] Serious Sex Offenders Monitoring Act 2005 (Vic) ss 16(4)-(5).

^[771] TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 14 VR 109.

^[772] Ibid 116 (Callaway AP). Conditions imposed on the appellant included that he must live at a specified ESO temporary accommodation unit, must not leave the unit unless with an approved escort, must comply with a curfew, must report as and when directed, and must not use the Internet, together with ten other restrictions.

^[773] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 16(1); Dangerous Sexual Offenders Act 2006 (WA) s 18(1).

^[774] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 16(2); Dangerous Sexual Offenders Act 2006 (WA) s 18(2).

^[775] Crimes (Serious Sex Offenders) Act 2006 (NSW) s 11.

^[776] Crimes (Serious Sex Offenders) Act 2006 (NSW) s 13.

^[777] Crimes (Serious Sex Offenders) Act 2006 (NSW) ss 6(4) (extended supervision order) and 14(4) (continuing detention orders).

^[778] See further Sentencing Advisory Council (2007), above n 8, [6.224]–[6.225]. See too Discussion Paper [6.228]–[6.235] for approaches in other jurisdictions.

^[779] Meeting with legal and medical practitioners on 17 August 2006.

^[780] See further Sentencing Advisory Council (2007), above n 8, [6.228]–[6.232].

^[781] TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 14 VR 109, 117.

^[782] For example, submission 3.24 (South Eastern CASA).

^[783] Irwin Kozibrocki and Peter Copeland, Bill C-55: ‘High-risk offender’ Amendments to the Criminal Code—Submissions to the Standing Committee on Justice and Legal Affairs (1997) Criminal Lawyers’ Association (Canada) <//www.criminallawyers.ca/newslett/18-3/c55.htm> at 2 November 2006.

^[784] See, for example, submission 3.21 (OPP).

^[785] Submission 3.31 (Victoria Police).

^[786] For example, submissions 3.22 (Office of the Child Safety Commissioner); 3.26 (Law Institute of Victoria).

^[787] Submission 3.18 (Supreme Court of Victoria).

^[788] Submission 3.26 (Law Institute of Victoria).

^[789] Attorney-General for the State of Queensland v Van Dessel [2006] QSC 016 (Unreported, White J, 10 February 2006) [73].

^[790] See further Adult Parole Board (Victoria) (2006), above n 165, 9; and [3.17.36] below.

^[791] The Australian Community Support Organisation (ACSO) advised that of properties scanned and submitted to the Department of Justice for review, 29 were confirmed as suitable, 42 were found to be unsuitable and no further feedback was received by ACSO concerning 21: E-mail from ACSO, 30 March 2007. ACSO advised that the main reasons why scans are not approved are the proximity of the property to public facilities (such as schools, playgrounds and shopping centres), that the property is too far away from public transport and the client’s supports, that children live too close to the property and the existence of communal facilities (such as laundry or garden): Ibid.

^[792] Meeting with the Australian Community Support Organisation (ACSO), 27 March 2007.

^[793] E-mail from Corrections Victoria, 18 April 2007.

^[794] [2006] VSC 354 (Unreported, Gillard J, 27 September 2006) (‘Fletcher’).

^[795] Ibid [61].

^[796] Serious Sex Offenders Monitoring Act 2005 (Vic) s 16(3)(a).

^[797] [2006] VSC 354 (Unreported, Gillard J, 27 September 2006) [69].

^[798] Serious Sex Offenders Monitoring (Amendment) Act 2006 (Vic) s 2.

^[799] Serious Sex Offenders Monitoring (Amendment) Act 2006 (Vic) s 3.

^[800] Serious Sex Offenders Monitoring (Amendment) Act 2006 (Vic) s 3.

^[801] Serious Sex Offenders Monitoring (Amendment) Act 2006 (Vic) s 4.

^[802] E-mail from Queensland Correctional Services, 8 December 2006; and e-mail from Western Australian Correctional Services, 8 December 2006. See further Sentencing Advisory Council (2007), above n 8, [6.258].

^[803] An interim detention order has been made in the matter of Attorney-General for New South Wales v Gallagher (2006) NSWSC 340 (Unreported, McClellan CJ, 13 April 2006), but the application for an order was not pursued due to the offender being deported.

^[804] Submission 3.26 (Law Institute of Victoria).

^[805] Minnesota Department of Corrections, Level Three Sex Offenders Residential Placement Issues: 2003 Report to the Legislature (2003) 8.

^[806] Australian Broadcasting Corporation, ‘Locals Protest Housing Plan for Sex Offenders’, ABC News, 12 May 2006 <http://abc.gov.au/news/items/200605/1637054.htm?centralvic> at 13 November 2006; Australian Broadcasting Corporation, ‘Government Rejects Sex Offender Prison Plan’, ABC News, 25 May 2006 <http://abc.gov.au/news/items/200605/1647346.htm?ballarat> at 13 November 2006.

^[807] See for example: Padraic Murphy, ‘Investigators Probe Pedophile House Fire’ The Australian (Sydney), 6 October 2006, 3; Shannon McRae and Matthew Shultz, ‘Flames of Hate’, Herald Sun (Melbourne) 6 October 2006, 1, 4.

^[808] Sue Hewitt, ‘I’m Not the Monster You Think’, Sunday Herald Sun (Melbourne), 5 November 2006.

^[809] ‘Sex Offender Housing Bans are No Solution (Editorial)’, Online Concord Monitor (Concord), 4 April 2007 <www.concordmonitor.com/apps/pbcs.dll/article?AID=/20070404/REPOSITORY/704040319> at 11 April 2007.

^[810] Ibid.

^[811] See, for example, Colorado Department of Public Safety, Report on Safety Issues Raised by Living Arrangements For and Location of Sex Offenders in the Community (2004); Minnesota Department of Corrections, Level Three Sex Offenders Residential Placement Issues (2003).

^[812] See further Sentencing Advisory Council (2007), above n 8, [6.252]–[6.253].

^[813] E-mail from New Zealand Department of Corrections, 11 April 2007.

^[814] Ibid.

^[815] Ibid.

^[816] ‘Protocol between Housing New Zealand Corporation and the Department of Corrections’ (undated), e-mailed by New Zealand Department of Corrections, 11 April 2007.

^[817] E-mail from Civil Commitment Program, Texas Council on Sex Offender Treatment, 14 April 2007.

^[818] Ibid.

^[819] Ibid.

^[820] Ibid.

^[821] Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575.

^[822] Ibid 642. See further Sentencing Advisory Council (2007), above n 8, [5.28]–[5.32].

^[823] Veen v The Queen [No. 2] [1988] HCA 14; (1988) 164 CLR 465, 495.

^[824] Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575, 635.

^[825] Ibid 646.

^[826] Ibid.

^[827] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 22(2).

^[828] See further Sentencing Advisory Council (2007), above n 8, [6.256].

^[829] Submission 2.14 (VLA).

^[830] Submission 2.5 (confidential).

^[831] Submission 3.14 (R. Paterson).

^[832] For example: submission 3.28 (VLA).

^[833] For example, Focus Groups 3–6 and submissions 3.16 (Springvale Monash Legal Service Inc), 3.21 (OPP) and 3.26 (Law Institute of Victoria.

^[834] Participant, Focus Group 3.

^[835] Participant, Focus Group 3.

^[836] Participant, Focus Group 4.

^[837] Participant, Focus Group 4.

^[838] Submission 3.27 (G. Bowman).

^[839] Submission 3.11 (Crime Victims Support Association).

^[840] Submission 3.26 (Law Institute of Victoria).

^[841] Submission 3.28 (VLA).

^[842] Submission 3.22 (the Office of the Child Safety Commissioner).

^[843] Submission 3.24 (South Eastern CASA).

^[844] Adult Parole Board (Victoria) (2006), above n 165, 9.

^[845] Participant, Focus Group 5.

^[846] Participant, Focus Group 5.

^[847] Submission 3.31 (Victoria Police).

^[848] Kurt Bumby, Tom Talbot and Madeline Carter, Managing the Challenges of Sex Offender Reentry (2007) 11.

^[849] Sex Offender Management Board, Colorado Department of Public Safety, Report on Safety Issues Raised by Living Arrangements For and Location of Sex Offenders in the Community (Prepared for the Colorado State Judiciary Committees, Senate and House of Representatives) (2004) 12.

^[850] Ibid 13.

^[851] Ibid 14.

^[852] Ibid; Minnesota Department of Corrections, Level Three Sex Offenders Residential Placement Issues: Report to the Legislature (2003) 8.

^[853] Sex Offender Management Board, Colorado Department of Public Safety (2004), above n 849,13.

^[854] Meeting with the Australian Community Support Organisation, 27 March 2007.

^[855] Sex Offender Management Board, Colorado Department of Public Safety (2004), above n 849,13.

^[856] Submission 2.11 (Crime Victims Support Association). This view was reiterated in the Association’s later submission on the Discussion Paper: submission 3.11 (Crime Victims Support Association).

^[857] Mike Maguire, et al, Risk Management of Sexual and Violent Offenders: The Work of the Public Protection Panels (2001) 38.

^[858] Ibid.

^[859] Submission 2.11 (Crime Victims Support Association).

^[860] R. Karl Hanson and Kelly Morton-Bourgon, ‘The Characteristics of Persistent Sexual Offenders: A Meta-Analysis of Recidivism Studies’ (2005) 73(6) Journal of Consulting and Clinical Psychology 1154.

^[861] These types of protocols have been developed as part of the Multi-Agency Public Protection Arrangements in place in the UK. See, for example, Thames Valley, Multi-Agency Public Protection Arrangements Annual Report 2005–2006 (2006) 20.

^[862] For example, including communications advisers in discussions of the Multi-Agency Public Protection Panels which manage the highest risk offenders who are being supervised in the community in the UK.

^[863] For example, see Andrew McWhinnie and Robin Wilson, ‘Courageous Communities: Circles of Support and Accountability with Individuals Who Have Committed Sexual Offenses’ <www.realjustice.org/library/ cosa.html> at 12 April 2007. See further [2.3.43]–[2.3.45].

^[864] On the costs of detention, see [2.5.6] and [2.5.30]–[2.5.32].

^[865] Serious Sex Offenders Monitoring Act 2005 (Vic) s 14.

^[866] Serious Sex Offenders Monitoring Act 2005 (Vic) s 24(1). We note, however, that under section 4 of the Act an offender on an ESO does not appear to come within the definition of an ‘eligible offender’ as that person is no longer serving a ‘custodial sentence’ (as defined).

^[867] Serious Sex Offenders Monitoring Act 2005 (Vic) ss 21(1)(a)–(b) and 21(4).

^[868] Serious Sex Offenders Monitoring Act 2005 (Vic) s 23. See further Sentencing Advisory Council (2007), above n 8, [6.318].

^[869] Serious Sex Offenders Monitoring Act 2005 (Vic) ss 21(2)(b), 21(3).

^[870] Crimes (Serious Offenders) Act 2006 (NSW) s 18(1).

^[871] Crimes (Serious Offenders) Act 2006 (NSW) ss 6(1)(b) (extended supervision) and 14(1)(b) (continuing detention).

^[872] Crimes (Serious Offenders) Act 2006 (NSW) ss 13(1) (extended supervision), 19(1) (continuing detention).

^[873] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 14(1); Dangerous Sexual Offenders Act 2006 (WA) s 17(1)(a).

^[874] In both Queensland and Western Australia, supervision orders apply for ‘the period stated in the order’: Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 15(b); Dangerous Sexual Offenders Act 2006 (WA) s 17(1)(b)). This has been interpreted by the Queensland Court of Appeal to require that supervision orders should be made for a fixed period: Attorney-General v Van Dessel [2006] QCA 285 (Unreported, Jerrard and Holmes JJA and MacKenzie J, 4 August 2006). In this case a supervision order made for an indefinite period was amended to fix a supervision period of 20 years. It is arguable that a similar interpretation would apply under the Western Australian scheme.

^[875] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 27(1); Dangerous Sexual Offenders Act 2006 (WA) s 29(2).

^[876] For example, submissions 2.14 (VLA), 3.21 (OPP), 3.22 (Office of the Child Safety Commissioner), 3.24 (South Eastern CASA), 3.27 (G. Bowman).

^[877] Submission 1.7 (Victoria Police) 5.

^[878] Slobogin (2003), above n 673, 49. See also submission 3.22 (Office of the Child Safety Commissioner).

^[879] Slobogin (2006) above n 226, 113-114. See further Sentencing Advisory Council (2007), above n 8, [6.13].

^[880] Ibid.

^[881] Attorney-General v Wright [2006] QSC 389.

^[882] Attorney-General v Wright [2006] QSC 389, [25].

^[883] E-mail from Corrections Victoria, 16 March 2007; and Adult Parole Board (Victoria) (2006), above n 165, 29.

^[884] Parole Act 2002 (NZ) s 107I(5).

^[885] Serious Sex Offenders Monitoring Act 2005 (Vic) ss 21(1)(a)–(b) and 21(4).

^[886] Serious Sex Offenders Monitoring Act 2005 (Vic) s 23(1). See further Sentencing Advisory Council (2007), above n 8, [6.318].

^[887] Analogous schemes also have strict time periods between reviews: for example the continued detention of an involuntary patient under the Mental Health Act must be reviewed at least every 12 months: Mental Health Act 1986 (Vic) s 30(3).

^[888] Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575. See, for example 621 (Gummow J); 658 (Callinan and Heydon JJ). The timing of reviews under the legislation was considered in Fardon v Attorney General (Qld) [2006] QSC 005 (Unreported, Philippides J, 27 January 2006). See further Sentencing Advisory Council (2007), above n 8, [6.321].

^[889] Ibid 621 (Gummow J).

^[890] For example, submissions 2.14 (VLA), 1.7 (Victoria Police) 5, 2.8 (confidential), 2.20 (Mental Health Legal Centre); Focus Group Participants.

^[891] Submissions 3.21(OPP), 3.22 (Office of the Child Safety Commissioner), 3.27 (G. Bowman).

^[892] Submission 3.26 (Law Institute of Victoria).

^[893] Submission 3.23 (South Eastern CASA). The South Eastern CASA suggested that subsequent orders should be for a period of two years, but the principle is the same: ‘An initial period of five years followed by two-year periods would seem to offer more incentive to undertake treatment.’

^[894] For example, submissions 3.21 (OPP), 3.22 (Office of the Child Safety Commissioner), 3.24 (South Eastern CASA).

^[895] For example, submission 3.15 (confidential).

^[896] Serious Sex Offenders Monitoring Act 2005 (Vic) s 16(4).

^[897] For example, in Fletcher v Secretary to Department of Justice and Anor [2006] VSC 354 (Supreme Court of Victoria, Gillard J, 27 September 2006) discussed above at [3.17.4]–[3.17.6].

^[898] Serious Sex Offenders Monitoring Act 2005 (Vic) s 16(5).

^[899] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ss 18–19; Dangerous Sexual Offenders Act 2006 (WA) ss 19–20. See further Appendix 1,Table 7; Sentencing Advisory Council (2007), above n 8, [6.315]–[6.316]. New Zealand has a different approach to variation and review, which is described at [6.338]–[6.340] of the Discussion Paper.

^[900] See Attorney-General v Hansen [2006] QSC 35 (Unreported, Mackenzie J, 6 March 2006) [34]; Attorney-General v Van Dessel [2006] QCA 285 (Unreported, Jerrard and Holmes JJA and MacKenzie J, 4 August 2006) [16]-[17] (Jerrard JA) and [26] (Holmes JA).

^[901] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 18; Dangerous Sexual Offenders Act 2006 (WA) s 19.

^[902] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 19; Dangerous Sexual Offenders Act 2006 (WA) s 20.

^[903] Crimes (Serious Sex Offenders) Act 2006 (NSW) ss 13(1) (extended supervision orders) and 19(1) (continuing detention orders).

^[904] Crimes (Serious Sex Offenders) Act 2006 (NSW) ss 13(2) (extended supervision orders) and 19(2) (continuing detention orders).

^[905] See further [3.20.5]–[3.20.7].

^[906] Serious Sex Offenders Monitoring Act 2005 (Vic) s 36.

^[907] Serious Sex Offenders Monitoring Act 2005 (Vic) s 37.

^[908] Serious Sex Offenders Monitoring Act 2005 (Vic) s 39(1).

^[909] See further Sentencing Advisory Council (2007), above n 8, [6.329]–[6.332].

^[910] Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575. See, for example, 592 (Gleeson CJ) and 658 (Callinan and Heydon JJ).

^[911] For example, submissions 1.7 (Victoria Police), 2.14 (VLA), 2.20 (Mental Health Legal Centre), 3.21 (OPP) and 3.24 (South Eastern CASA).

^[912] Submission 1.7 (Victoria Police); Victims’ Issues Roundtable 6 February 2007.

^[913] TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 14 VR 109, 116. See further Sentencing Advisory Council (2007), above n 8, [6.330] and Appendix 1 (Case Study 1).

^[914] TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 14 VR 109, 123, footnote 41.

^[915] Ibid.

^[916] Crimes Act 1958 (Vic) s 572.

^[917] Serious Sex Offenders Monitoring Act 2005 (Vic) s 40. The Council also looked at the approach to breach in New South Wales and in other jurisdictions: Sentencing Advisory Council (2007), above n 8, [6.355]–[6.358])

^[918] Serious Sex Offenders Monitoring Act 2005 (Vic) s 40.

^[919] Serious Sex Offenders Monitoring Act 2005 (Vic) s 41.

^[920] Serious Sex Offenders Monitoring Act 2005 (Vic) s 40(3).

^[921] Serious Sex Offenders Monitoring Act 2005 (Vic) s 19(1).

^[922] Serious Sex Offenders Monitoring Act 2005 (Vic) s 19(2).

^[923] Shelly Hodgson, ‘Jail for Breaching Order—Child Sex Offender First to Be Convicted for Offence’, Herald Sun (Melbourne) 15 February 2007, 17; Shelley Hodgson, ‘Prison for Sex Fiend’, Herald Sun (Melbourne) 3 March 2007.

^[924] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 20; Dangerous Sexual Offenders Act 2006 (WA) s 21. See further Sentencing Advisory Council (2007), above n 8, [6.350]–[6.355].

^[925] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 20.

^[926] Dangerous Sexual Offenders Act 2006 (WA) s 21(2).

^[927] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 20(6); Dangerous Sexual Offenders Act 2006 (WA) s 21(3)–(5).

^[928] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ss 21–22. To date, under the Queensland scheme, there has been one such application to the court for a further order as a result of an alleged contravention by the offender: Attorney-General for the State of Queensland v Foy [2006] QSC 143.

^[929] The Dangerous Prisoners (Sexual Offences) Amendment Bill 2007 (Qld).

^[930] Dangerous Prisoners (Sexual Offenders) Bill 2007 (Qld) Clause 4.

^[931] Dangerous Prisoners (Sexual Offenders) Bill 2007 (Qld) Clause 5.

^[932] Dangerous Prisoners (Sexual Offenders) Bill 2007 (Qld) Clause 6. If the prisoner is on an interim supervision order, the court would be able to rescind that order and detain the prisoner in custody for the period stated in the order.

^[933] Dangerous Prisoners (Sexual Offenders) Bill 2007 (Qld) Clause 9.

^[934] Dangerous Sexual Offenders Act 2006 (WA) s 23.

^[935] Meeting with legal and medical practitioners, 17 August 2006, Meeting with Victoria Police, 20 February 2007.

^[936] Freiberg (2002), above n 670, 117.

^[937] Ibid 116–19.

^[938] The offence of ‘loitering near schools etc’ is a criminal offence that applies to convicted sex offenders who loitering without reasonable excuse near schools, kindergartens, childcare centres and public areas where children are likely to be present. If the person has previously been sentenced as a ‘serious sexual offender’ under the Sentencing Act 1991 (Vic), the maximum penalty for the offence is five years’ imprisonment. In all other cases, the maximum penalty is two years’ imprisonment: Crimes Act 1958 (Vic) s 60B. See further Sentencing Advisory Council (2007), above n 8, [4.81]–[4.85].

^[939] Sex Offender Registration Act 2004 (Vic) ss 68, 46.

^[940] Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) s 6; Community Protection (Offender Reporting) Act 2004 (WA) s 91. These orders may be made for up to five years. See further Sentencing Advisory Council (2007), above n 8, [4.95]–[4.98].

^[941] Corrections Act 1986 (Vic) ss 60N–60S (home detention) and 77 (cancellation of parole).

^[942] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ss 21–22. We note that the power ‘to make any other order’ simply may relate to the power of the court to make conditions under the order. If so, it may be unnecessary.

^[943] In the Explanatory Notes to the bill, it was suggested that ‘clearly, a contravention of...conditions raises a real question as to the risk the released offender poses to the community’: Dangerous Prisoners (Sexual Offenders) Bill 2007, Explanatory Notes, 1.

^[944] Serious Sex Offenders Monitoring Act 2005 (Vic) s 35.

^[945] See further [3.20.1].

^[946] Such as, for example, the website of the Australasian Legal Information Institute <www.austlii.edu.au>.

^[947] The Council looked at the provisions for transparency in other jurisdictions, including the relevant Australian jurisdictions. See further Sentencing Advisory Council (2007), above n 8, [6.363]–[6.384]. In addition to the relevant Australian jurisdictions the Council looked at approaches in New Zealand and the United Kingdom.

^[948] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 17.

^[949] Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575, 602 (McHugh J).

^[950] Submission 3.24 (South Eastern CASA).

^[951] Ibid.

^[952] Submission 3.31 (Victoria Police).

^[953] Submission 3.21 (OPP).

^[954] Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) s 24(3).

^[955] Serious Sex Offenders Monitoring Act 2005 (Vic) s 42. The Council looked at the provisions for suppression in a number of jurisdictions: see further Sentencing Advisory Council (2007), above n 8, [6.363]–[6.384]. In addition to the relevant Australian jurisdictions the Council looked at approaches in New Zealand and the United Kingdom.

^[956] Serious Sex Offenders Monitoring Act 2005 (Vic) s 42(3).

^[957] For example, sections 18(1)(c) of the Supreme Court Act 1986 (Vic); 80(1)(c) of the County Court Act 1958 (Vic); and 126(2) of the Magistrates Court Act 1989 (Vic) provide for the making of suppression orders in each of those courts.

^[958] Supreme Court Act 1986 (Vic) s 18(1)(c); County Court Act 1986 (Vic) s 80(1)(c); Magistrates’ Court Act 1989 (Vic) s 126(4).

^[959] Judicial Proceedings Reports Act 1958 (Vic) s 4(2). The value of a penalty unit fixed under section 6 of the Monetary Units Act 2004 (Vic) for the financial year commencing 1 July 2006 is $107.43: Victorian Government Gazette, 6 April 2006, 680.

^[960] Judicial Proceedings Reports Act 1958 (Vic) s 4(3).

^[961] Serious Sex Offenders Monitoring Act 2005 (Vic) s 43.

^[962] Serious Sex Offenders Monitoring Act 2005 (Vic) s 44.

^[963] Sex Offenders Registration Act 2004 (Vic) s 64.

^[964] Sex Offenders Registration Act 2004 (Vic) s 64.

^[965] Submission 2.20 (Mental Health Legal Centre).

^[966] Submission 3.21 (OPP).

^[967] Ibid.

^[968] Submission 3.28 (VLA).

^[969] Jane Doe v Australian Broadcasting Corporation & Ors [2007] VCC 281 (Unreported, Hampel J, 3 April 2007).

^[970] Section 4(1A) of the Judicial Proceedings Reports Act 1958 (Vic). See further [3.22.17].

^[971] A similar provision is found in the Judicial Proceedings Reports Act 1958 (Vic) in relation to the reporting of information likely to lead to the identification of sexual assault victims (s 4(3)).

^[972] Corrections Act 1986 (Vic) ss 72(1)(bd)–(be).

^[973] Corrections Act 1986 (Vic) s 72(5).

^[974] Corrections Act 1986 (Vic) s 72(4).

^[975] Adult Parole Board (Victoria) (2006), above n 165, 5.

^[976] New Zealand Department of Corrections, Annual Report 2005–2006 (2006) 111.

^[977] Ibid.

^[978] For example: submissions 3.21 (OPP); 3.24 (South Eastern CASA); 3.27 (G. Bowman).

^[979] Crimes (Administration of Sentences) Act 1999 (NSW) s 197(2). On the role of the Serious Offenders Review Council, see further [3.7.5].

^[980] Several focus group participants wanted to know whether the current extended supervision scheme in Victoria or the continuing detention and supervision schemes in the relevant Australian jurisdictions had been evaluated and whether there was any evidence of their effectiveness. At the Legal Issues Roundtable (13 February 2007) it was submitted that there was no justification for introducing a new post-sentence system without first evaluating the current extended supervision scheme. Similarly a member of the community submitted that the extended supervision scheme ‘needs to be allowed to work for long enough to be able to objectively assess its effectiveness before a much more expensive scheme is introduced’: submission 3.14 (R. Paterson).

^[981] Crimes (Serious Sex Offenders) Act 2006 (NSW) s 32.

^[982] Crimes (Serious Sex Offenders) Act 2006 (NSW) s 32(2).

^[983] Crimes (Serious Sex Offenders) Act 2006 (NSW) s 32(4).

^[984] New South Wales, Parliamentary Debates, Legislative Assembly, 29 March 2006, 21730 (Carl Scully, Minister for Police).

^[985] Sentencing Act 1991 (Vic) s 18A(5).

^[986] Sentencing Act 1991 (Vic) s 18A(1).

^[987] Sentencing Act 1991 (Vic) s 3(1).

^[988] Sentencing Act 1991 (Vic) s 18B(1).

^[989] Sentencing Act 1991 (Vic) s 18B(2).

^[990] Sentencing Act 1991 (Vic) ss 18H-18L.

^[991] Serious Sex Offenders Monitoring Act 2005 (Vic) s 28.

^[992] Sentencing Act 1991 (Vic) s 18A(2).