Serious Sex Offenders (Detention and Supervision) Amendment (Community Safety) Act 2016
Authorised by the Chief Parliamentary Counsel
Authorised Version
i
Serious Sex Offenders (Detention and Supervision)
Amendment (Community Safety) Act 2016
No. 32 of 2016
TABLE OF PROVISIONS
Section Page
Part 1—Preliminary 1
1 Purpose 1
2 Commencement 2
3 Principal Act 2
Part 2—Amendment of Principal Act—community protection 3
Division 1—Safety and protection 3
4 Definitions 3
5 New sections 6A and 6B inserted 3
6 New section 24A inserted 4
7 Appeals by offenders 6
8 Appeals by the Secretary 6
9 Offence to breach order 6
Division 2—Violent offences 7
10 Definitions 7
11 Conditions of supervision order 7
12 Core conditions of supervision order 7
13 Suggested conditions 7
14 Other discretionary conditions 8
15 Condition authorising Adult Parole Board to give directions 8
16 Seriousness of breach 8
17 New Schedule 1A inserted 9
18 Transitional provisions inserted in Schedule 3 12
Part 3—Amendment of Principal Act—entry, search and seizure
powers 13
19 Search 13
20 Seizure 13
21 Search 15
22 Seizure 16
23 Register of seized thing 18
24 Heading to Division 7 of Part 10 amended 18
25 New section 158BA inserted 18
26 New sections 158DA and 158DB inserted 18
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27 New Division 9 of Part 10 inserted 21
28 Powers of entry and search by police officer to arrest
offender 35
29 Regulations 38
Part 4—Other amendments to the Principal Act 40
30 Definitions 40
31 Core conditions of supervision order—requirement to obey
instructions 40
32 Decision on supervision order—general 40
33 Power of court on review 40
34 Execution of arrest warrant 41
35 Visitors to give certain information 41
36 Specified officers 41
37 Duration of holding powers 41
38 Sharing of information 42
39 Amendments to Schedule 1 (offences of slavery and
servitude) 43
Part 5—Amendment of the Sentencing Act 1991 44
40 New section 10AB inserted 44
41 Consequential amendments 45
42 New section 159 inserted 45
Part 6—Amendment of other Acts 46
Division 1—Amendment of Sex Offenders Registration Act 2004 46
43 Sex offender registration order 46
44 When the report must be made 47
Division 2—Amendment of Corrections Act 1986 47
45 Definitions 47
46 Employment under the Public Administration Act 47
47 Definitions—Disclosure of information 48
48 Authorisation to use or disclose information 49
49 Authorisation to disclose information given to Adult Parole
Board 49
Part 7—Repeal of amending Act 51
50 Repeal of amending Act 51
═══════════════
Endnotes 52
1 General information 52
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Authorised by the Chief Parliamentary Counsel
Authorised Version
1
Serious Sex Offenders (Detention and
Supervision) Amendment (Community
Safety) Act 2016 †
No. 32 of 2016
[Assented to 31 May 2016]
The Parliament of Victoria enacts:
Part 1—Preliminary
1 Purpose
The purpose of this Act is to amend the Serious
Sex Offenders (Detention and Supervision)
Act 2009, the Sentencing Act 1991, the
Sex Offenders Registration Act 2004, the
Corrections Act 1986 and other Acts to protect
Victoria
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Part 1—Preliminary
Serious Sex Offenders (Detention and Supervision) Amendment (Community
Safety) Act 2016
No. 32 of 2016
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the community further from sexual offenders
including those serious sex offenders who may be,
or may become, violent.
2 Commencement
(1) This Act, except Part 3, comes into operation on
the day after the day on which it receives the
Royal Assent.
(2) Subject to subsection (3), Part 3 comes into
operation on a day or days to be proclaimed.
(3) If a provision referred to in subsection (2) does
not come into operation before 1 March 2017, it
comes into operation on that day.
3 Principal Act
In this Act, the Serious Sex Offenders
(Detention and Supervision) Act 2009 is called
the Principal Act.
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Part 2—Amendment of Principal Act—
community protection
Division 1—Safety and protection
4 Definitions
In section 3 of the Principal Act insert the
following definition—
"restrictive condition means—
(a) a core condition referred to in
section 16(2)(a), (ab), (ac) or (ad);
(b) a condition declared by the court under
section 24A to be a restrictive
condition;".
5 New sections 6A and 6B inserted
After section 6 of the Principal Act insert—
"6A Safety and protection of the community
paramount in any decision under this Act
In making a decision under this Act, a person
or body must give paramount consideration
to the safety and protection of the
community.
6B Sex offender registration order under Sex
Offenders Registration Act 2004
(1) On the making, confirmation or renewal
of a supervision order or a detention order
under this Act or a determination under
section 78(3)(a) or (b) of a condition on a
supervision order, the court must make a sex
offender registration order under the
Sex Offenders Registration Act 2004 in
respect of the offender if the offender is not
already subject to that Act.
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(2) A sex offender registration order under the
Sex Offenders Registration Act 2004
made in the circumstances referred to in
subsection (1) must be for a period of not
less than 15 years.
Note
See section 11(9) and (10) of the Sex Offenders
Registration Act 2004.".
6 New section 24A inserted
After section 24 of the Principal Act insert—
"24A Court may declare a condition to be a
restrictive condition
(1) Subject to this section, on the making or
renewal of a supervision order, or on a
review of the order or a condition of the
order, the court may declare that any of the
following conditions of the order is a
restrictive condition—
(a) that the offender must not consume
alcohol;
(b) that the offender must not use
prohibited drugs, obtain drugs
unlawfully or abuse drugs of any kind;
(c) that the offender must reside at a
specified place (including whether the
offender is to reside at a residential
facility);
(d) that the offender must be at the
offender's place of residence between
specified times;
(e) that the offender may only leave the
offender's place of residence in
accordance with specified conditions;
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(f) that the offender must not visit a
specified place or area or may only visit
the place or area at specified times;
(g) that the offender must not have contact
with a specified person or class of
person.
(2) A core condition under section 16(2)(a),
(ab), (ac) or (ad) must not be declared to be a
restrictive condition under this section.
Note
These conditions are restrictive conditions by
operation of this Act: see paragraph (a) of the
definition of restrictive condition in section 3.
(3) A declaration under subsection (1) may only
be made—
(a) on the application of the Secretary; and
(b) if the court is satisfied on reasonable
grounds that the declaration is
necessary to address the risk of harm
(including sexual harm or violence or
both) to the community presented by
the offender.
Note
See Part 6 for the procedure in respect of the
application.
(4) In considering whether to make a declaration
under subsection (1), the court must have
regard to the antecedents of the offender,
including any previous breaches of a
supervision order.
Note
It is an offence under section 160 to fail to comply
with a condition of a supervision order without a
reasonable excuse.".
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7 Appeals by offenders
After section 96(c) of the Principal Act insert—
"(ca) to declare a condition on a supervision
order to be a restrictive condition under
section 24A; or".
8 Appeals by the Secretary
In section 97 of the Principal Act—
(a) in paragraph (f), for "order." substitute
"order; or";
(b) after paragraph (f) insert—
"(g) to not declare a condition on a
supervision order to be a restrictive
condition under section 24A or to
declare a condition on a supervision
order to be a restrictive condition under
that section.".
9 Offence to breach order
At the foot of section 160(1) of the Principal Act
insert—
"Notes
1 Section 10AB of the Sentencing Act 1991 requires that
a term of imprisonment of not less than 12 months be
imposed for an offence against section 160 in the case
of intentional or reckless failure to comply with a
restrictive condition of a supervision order unless the
court finds under section 10A of that Act that a special
reason exists.
2 If a court makes a finding under section 10A of the
Sentencing Act 1991 that a special reason exists, the
requirements of section 10AB of that Act do not apply
and the court has full sentencing discretion.".
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Division 2—Violent offences
10 Definitions
In section 3 of the Principal Act insert the
following definitions—
"violent conduct means conduct of a kind referred
to in section 16(2)(ac) or (ad);
violent offence means an offence listed in
Schedule 1A;".
11 Conditions of supervision order
In section 15(3) of the Principal Act, after
"offender" insert "whether by committing a
relevant offence or a violent offence or by
engaging in violent conduct or any one or more of
these".
12 Core conditions of supervision order
After section 16(2)(a) of the Principal Act
insert—
"(ab) not commit a violent offence in Victoria or
elsewhere;
(ac) if the court requires an offender to reside at a
residential facility, not engage in conduct
that poses a risk to the good order of the
residential facility or the safety and welfare
of offenders or staff at the residential facility
or visitors to the residential facility;
(ad) not engage in conduct that threatens the
safety of any person, including the
offender;".
13 Suggested conditions
In section 17(1)(j)(ii) of the Principal Act, after
"relevant offence" insert "or a violent offence or
engaging in violent conduct or any one or more of
these".
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14 Other discretionary conditions
(1) For section 19(a) of the Principal Act
substitute—
"(a) to reduce the risk of re-offending by the
offender whether by committing a relevant
offence or a violent offence or by engaging
in violent conduct or any one or more of
these; or".
(2) At the end of section 19 of the Principal Act
insert—
"(2) Conditions imposed for the purposes of
subsection (1)(a) may include conditions
promoting the rehabilitation, and treatment,
of the offender.".
(3) Insert the following example after example 3 at
the foot of section 19 of the Principal Act—
"4 A condition requiring the offender to undergo
treatment, or rehabilitation, or programs relating to
violent behavior, anger management, conflict
resolution or the improvement of interpersonal
relationships or interpersonal skills.".
15 Condition authorising Adult Parole Board to give
directions
In section 20(2)(b) of the Principal Act, after
"re-offending" insert "whether by committing a
relevant offence or a violent offence or by
engaging in violent conduct or any one or more
of these".
16 Seriousness of breach
After section 162(1)(c) of the Principal Act
insert—
"(ca) may increase the offender's risk of
committing a violent offence or engaging in
violent conduct or is preparatory to a violent
offence or that conduct; or".
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17 New Schedule 1A inserted
After Schedule 1 to the Principal Act insert—
"Schedule 1A—Violent offences
Section 3
1 Murder.
2 Manslaughter.
3 An offence against any of the following
sections of the Crimes Act 1958—
(a) section 5A (child homicide);
(b) section 15A (causing serious injury
intentionally in circumstances of gross
violence);
(c) section 15B (causing serious injury
recklessly in circumstances of gross
violence);
(d) section 16 (causing serious injury
intentionally);
(e) section 17 (causing serious injury
recklessly);
(f) section 18 (causing injury intentionally
or recklessly);
(g) section 19 (administering certain
substances);
(h) section 20 (threats to kill);
(i) section 21 (threats to inflict serious
injury);
(j) section 21A (stalking);
(k) section 22 (conduct endangering life);
(l) section 23 (conduct endangering
persons);
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(m) section 24 (negligently causing serious
injury);
(n) section 25 (setting traps etc. to kill);
(o) section 26 (setting traps etc. to cause
serious injury);
(p) section 27 (extortion with threat to kill);
(q) section 28 (extortion with threat to
destroy property etc.);
(r) section 29 (using firearm to resist arrest
etc.);
(s) section 30 (threatening injury to
prevent arrest);
(t) section 31 (assaults);
(u) section 31A (use of firearms in
commission of offences);
(v) section 31B (being armed with criminal
intent);
(w) section 32 (performing female genital
mutilation);
(x) section 33 (taking person from Victoria
with intention of having prohibited
female genital mutilation performed);
(y) section 63A (kidnapping);
(z) section 75 (robbery);
(za) section 75A (armed robbery);
(zb) section 76 (burglary);
(zc) section 77 (aggravated burglary);
(zd) section 197 (destroying or damaging
property);
(ze) section 197A (arson causing death);
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(zf) section 198 (threats to destroy or
damage property);
(zg) section 199 (possessing anything with
intent to destroy or damage property);
(zh) section 317 (offences connected with
explosive substances);
(zi) section 317A (bomb hoaxes).
4 An offence at common law of kidnapping.
5 An offence at common law of false
imprisonment.
6 An offence at common law of affray, riot or
common assault.
7 An offence against any of the following
sections of the Family Violence Protection
Act 2008—
(a) section 37 (contravention of family
violence safety notice);
(b) section 37A (contravention of family
violence safety notice intending to
cause harm or fear for safety);
(c) section 123 (contravention of family
violence intervention order);
(d) section 123A (contravention of family
violence intervention order intending to
cause harm or fear for safety);
(e) section 125A (persistent contravention
of family violence safety notice or
family violence intervention order).
8 An offence against section 100
(contravention of personal safety
intervention order) of the Personal Safety
Intervention Orders Act 2010.
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9 An offence that, at the time it was
committed, was an offence listed in this
Schedule.
10 An offence of conspiracy to commit,
incitement to commit or attempting to
commit an offence listed in this Schedule.
11 An offence, whether committed in Victoria
or elsewhere, the necessary elements of
which consist of elements that constitute an
offence of a kind listed in this Schedule.".
18 Transitional provisions inserted in Schedule 3
After clause 1 of Schedule 3 to the Principal Act
insert—
"2 Serious Sex Offenders (Detention
and Supervision) Amendment
(Community Safety) Act 2016
This Act, as amended by Part 2 of
the Serious Sex Offenders (Detention
and Supervision) Amendment
(Community Safety) Act 2016, applies to a
supervision order or an interim supervision
order in force immediately before the
commencement of that Part if, after that
commencement—
(a) the order is renewed; or
(b) the order is reviewed; or
(c) a condition to which the order is subject
is reviewed.".
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Part 3—Amendment of Principal Act—entry,
search and seizure powers
19 Search
(1) In section 142(1) of the Principal Act—
(a) after "give an order" insert "or, in the case
of a police officer, make a request or give
permission to enter to search";
(b) for "believes" substitute "suspects".
(2) In section 142(2) of the Principal Act, after
"specified officer to" insert ", or request or permit
a police officer to".
(3) In section 142(7) of the Principal Act, after
"specified officer" insert "or a police officer
(as the case requires)".
(4) After section 142(7) of the Principal Act insert—
"(7A) If necessary, a supervision officer, a
specified officer or a police officer may use
reasonable force to carry out a search under
this section.
(7B) A search under this section may continue
only for as long as necessary to achieve the
purpose of the search.".
20 Seizure
(1) In the heading to section 143 of the Principal Act,
after "Seizure" insert "and examination".
(2) In section 143 of the Principal Act—
(a) after "specified officer" (wherever occurring)
insert "or police officer (as the case
requires)";
(b) after "re-offending" insert "or breaching the
conditions of the supervision order".
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(3) At the end of section 143 of the Principal Act
insert—
"(2) A supervision officer, a specified officer or a
police officer may examine any thing, or
operate any electronic equipment, seized
under this section for the purpose of
investigating—
(a) whether the offender has complied with
the supervision order; or
(b) whether the offender has re-offended or
has breached the conditions of the
supervision order.
(3) Without limiting subsection (1), a
supervision officer, a specified officer or a
police officer may seize or take a sample of
any thing belonging to, or found in the
possession or under the control of, a
supervision officer, a specified officer, an
offender or any other person (other than a
judge of the Supreme Court or County Court
or a magistrate) if the officer suspects on
reasonable grounds that—
(a) the thing will afford evidence of the
commission of an indictable offence
(whether or not that offence is a breach
of a supervision order); and
(b) it is necessary to seize or take a sample
of that thing in order to prevent its
concealment, loss or destruction or its
use in the commission of an indictable
offence (whether or not that offence is a
breach of a supervision order).
(4) A police officer exercising a power under
this section may direct the following persons
accompanying the police officer to exercise
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those powers subject to the officer's
direction—
(a) a Victoria Police employee within
the meaning of the Victoria Police
Act 2013;
(b) any person who delivers services or
advice on behalf of Victoria Police.
(5) If necessary, a supervision officer, a
specified officer or a police officer, as the
case requires, may use reasonable force to
carry out a seizure under this section.".
21 Search
(1) In section 152(1) of the Principal Act—
(a) in paragraph (a), for "believes" substitute
"suspects";
(b) in paragraph (b), after "re-offending" insert
"or breaching the conditions of the
supervision order or an interim supervision
order".
(2) After section 152(2) of the Principal Act insert—
"(2A) A police officer may exercise a power under
this section only if the police officer—
(a) reasonably suspects that the search is
necessary to monitor an offender's
compliance with a supervision order or
an interim supervision order; or
(b) reasonably suspects the offender of
behaviour or conduct associated with
an increased risk of the offender
re-offending or breaching the
conditions of a supervision order or an
interim supervision order.
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(2B) A police officer exercising a power under
this section may enter any part of the
location occupied by the offender and—
(a) search that part of the location that is
occupied by the offender, and any thing
(including any vehicle) belonging to or
in the possession of, or under the
control of, the offender at the location;
and
(b) search and examine the offender at the
location.".
(3) After section 152(4) of the Principal Act insert—
"(4A) If necessary, a community corrections
officer, a specified officer or a police officer
may use reasonable force to carry out a
search under this section.
(4B) A search under this section may continue
only for as long as necessary to achieve the
purpose of the search.".
22 Seizure
(1) In the heading to section 153 of the Principal Act,
after "Seizure" insert "and examination".
(2) In section 153 of the Principal Act, after
"community corrections officer" insert
", police officer".
(3) In section 153 of the Principal Act, after
"re-offending" insert "or breaching the conditions
of the supervision order".
(4) At the end of section 153 of the Principal Act
insert—
"(2) A community corrections officer, a police
officer or a specified officer (as the case
requires) may examine any thing, or operate
any electronic equipment, seized under
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subsection (1) for the purpose of
investigating—
(a) whether the offender has complied with
the supervision order; or
(b) whether the offender has re-offended or
has breached the conditions of the
supervision order.
(3) Without limiting subsection (1), a
community corrections officer, a police
officer or a specified officer (as the case
requires) may seize or take a sample of
any thing belonging to, or found in the
possession or under the control of, the
offender if the officer suspects on reasonable
grounds that—
(a) the thing will afford evidence of the
commission of an indictable offence
(whether or not that offence is a breach
of a supervision order); and
(b) it is necessary to seize or take a sample
of that thing in order to prevent its
concealment, loss or destruction or its
use in the commission of an indictable
offence (whether or not that offence is a
breach of a supervision order).
(4) A police officer exercising a power under
this section may direct the following persons
accompanying the police officer to exercise
those powers subject to the officer's
direction—
(a) a Victoria Police employee within the
meaning of the Victoria Police
Act 2013;
(b) any person who delivers services or
advice on behalf of Victoria Police.
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(5) If necessary, a community corrections
officer, a police officer or a specified officer,
as the case requires, may use reasonable
force to carry out a seizure under this
section.".
23 Register of seized thing
After section 154(3) of the Principal Act insert—
"(4) This section does not apply to a thing seized
by a police officer under this Division.
Note
See section 158I for the register of things seized by
police officers.".
24 Heading to Division 7 of Part 10 amended
In the heading to Division 7 of Part 10 of the
Principal Act, after "entry" insert ", search and
seizure".
25 New section 158BA inserted
Before section 158C of the Principal Act insert—
"158BA Application of Division
This Division does not apply to premises that
are a residential facility.".
26 New sections 158DA and 158DB inserted
After section 158D of the Principal Act insert—
"158DA Power to search
(1) A police officer may exercise a power under
this section only if the police officer—
(a) reasonably suspects that the search is
necessary to monitor an offender's
compliance with a supervision order or
an interim supervision order; or
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(b) reasonably suspects the offender of
behaviour or conduct associated with
an increased risk of the offender
re-offending or breaching the
conditions of a supervision order or an
interim supervision order.
(2) A police officer exercising a power of entry
under section 158C may—
(a) search that part of the premises that is
occupied by the offender, and any thing
(including any vehicle) belonging to or
in the possession of, or under the
control of, the offender at the premises;
and
(b) search and examine the offender at the
premises.
(3) For the purposes of subsection (2), a search
of an offender means either or both a
garment search or a pat-down search.
(4) To the extent practicable a pat-down search
must be conducted by a person of the same
sex as the offender being searched.
(5) If necessary, a police officer may use
reasonable force to carry out a search under
this section.
(6) A search under this section may continue
only for as long as necessary to achieve the
purpose of the search.
(7) In this section—
garment search means a search of any
article of clothing worn by a person or
in the person's possession, where the
article of clothing is touched or
removed from the person's body;
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pat-down search means a search of a person
where the person's clothed body is
touched.
158DB Power to seize and examine seized items
(1) In carrying out a search under
section 158DA, a police officer may seize
any thing found in the possession of or
under the control of the offender which the
police officer reasonably suspects—
(a) will compromise—
(i) the welfare or safety of a member
of the public; or
(ii) the offender's compliance with the
supervision order; or
(b) relates to behaviour or conduct
associated with an increased risk of the
offender re-offending or breaching the
conditions of the supervision order.
(2) A police officer may examine any thing, or
operate any electronic equipment seized
under this section for the purpose of
investigating—
(a) whether the offender has complied with
the supervision order; or
(b) whether the offender has re-offended or
has breached the conditions of the
supervision order.
(3) Without limiting subsection (1), a police
officer may seize or take a sample of any
thing belonging to, or found in the
possession or under the control of, the
offender if the officer suspects on reasonable
grounds that—
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(a) the thing will afford evidence of the
commission of an indictable offence
(whether or not that offence is a breach
of a supervision order); and
(b) it is necessary to seize or take a sample
of that thing in order to prevent its
concealment, loss or destruction or its
use in the commission of an indictable
offence (whether or not that offence is a
breach of a supervision order).
(4) A police officer exercising a power under
this section may direct the following persons
accompanying the police officer to exercise
those powers subject to the officer's
direction—
(a) a Victoria Police employee within the
meaning of the Victoria Police
Act 2013;
(b) any person who delivers services or
advice on behalf of Victoria Police.
(5) If necessary, a police officer may use
reasonable force to carry out a seizure under
this section.".
27 New Division 9 of Part 10 inserted
After Division 8 of Part 10 of the Principal Act
insert—
"Division 9—General provisions relating
to entry, search and seizure under this
Part or other provisions of this Act
158G Warning that search or seizure is to occur
and that reasonable force may be used
Immediately before a search under
section 142, 152, 158DA or 171A or a
seizure under section 143, 153, 158DB
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or 171A is carried out, a police officer,
community correction officer, supervision
officer or specified officer, as the case
requires, must inform the offender that—
(a) the search or seizure (as the case
requires) is to occur; and
(b) reasonable force may be used to assist
in the conduct of the search or seizure.
158H Officer may direct offender to provide
assistance—computers and other devices
(1) This section applies in relation to a computer
or device that belongs to, or is in the
possession or under the control of—
(a) the offender—
(i) at the location or premises being
searched under this Part or
section 171A; or
(ii) that has been seized under this
Part or section 171A; or
(b) a supervision officer, a specified
officer, an offender or any other
person (other than a judge of the
Supreme Court or County Court or a
magistrate), in the case of a search
under section 142 or a seizure under
section 143.
(2) For the purposes of exercising a search
power or seizure power referred to in
subsection (1), a police officer, community
corrections officer, supervision officer or
specified officer (as the case requires) may
direct the offender or other person to provide
information or other assistance that is
reasonably necessary to enable the officer or
a person assisting the officer to—
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(a) access data held in, or accessible from,
the computer or device; or
(b) copy to a data storage device data held
in, or accessible from, the computer or
device; or
(c) convert into documentary or another
intelligible form—
(i) data held in, or accessible from,
the computer or device; or
(ii) data held in a data storage device
to which the data was copied as
described in paragraph (b).
(3) Before giving a direction under
subsection (2), the officer must state that the
offender or other person may commit an
offence if the offender—
(a) has relevant knowledge of—
(i) the computer or device or a
computer network of which the
computer or device forms or
formed a part; or
(ii) measures applied to protect data
held in, or accessible from, the
computer or device; and
(b) without reasonable excuse, fails to
comply with the direction.
(4) An offender or other person who has relevant
knowledge and who has been given a
warning under subsection (3) must not,
without reasonable excuse, fail to comply
with a direction given under subsection (2).
Penalty: Level 6 imprisonment (5 years
maximum).
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(5) In this section—
access, in relation to data held in a computer
or device, means—
(a) the display of the data by the
computer or device or any other
output of the data from the
computer or device; or
(b) the copying or moving of the data
to any other place in the computer
or to a device; or
(c) in the case of a program, the
execution of the program;
data includes—
(a) information in any form; and
(b) any program or part of a program;
data held in a computer or device
includes—
(a) data entered or copied into the
computer or device; and
(b) data held in any removable data
storage device for the time being
in the computer; and
(c) data held in a data storage device
on a computer network of which
the computer or device forms part;
data storage device means any thing
containing or designed to contain data
for use by a computer;
Examples
A USB storage device or a file server.
device includes a data storage device, a
smartphone and a SIM card;
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relevant knowledge means information or
other assistance that would enable the
officer to—
(a) access data held in, or accessible
from, a computer or device that
belongs to, or is in the possession
or under the control of, the
offender or other person at the
location or premises being
searched; or
(b) copy to a data storage device data
held in, or accessible from, a
computer or device referred to in
paragraph (a); or
(c) convert into documentary or
another intelligible form—
(i) data held in, or accessible
from, a computer or device
referred to in paragraph (a);
or
(ii) data held in a data storage
device to which the data was
copied as described in
paragraph (b).
158I Register of things seized by police officers
(1) The Chief Commissioner of Police must
establish and maintain a register of things
seized by a police officer under this Part or
section 171A.
(2) The register must contain the prescribed
details for each thing seized.
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158J Things seized by officers must be
photographed or otherwise recorded
All things seized under this Act by a police
officer, a community corrections officer, a
supervision officer or a specified officer
(as the case requires) must be photographed
or otherwise recorded.
158K Officer must provide receipt for seized
things
(1) As soon as practicable after seizing a thing
under this Part or section 171A, a police
officer must—
(a) give the offender or person from whom
the thing was seized a receipt for the
thing; or
(b) if the offender or person from whom
the thing was seized refuses to accept
the receipt, leave the receipt in a
conspicuous place at the location or
premises being searched.
(2) As soon as practicable after seizing a thing
under this Part, a community corrections
officer, a supervision officer or a specified
officer (as the case requires) must—
(a) give the offender or person from whom
the thing was seized a receipt for the
thing; or
(b) if the offender or person from whom
the thing was seized refuses to accept
the receipt, leave the receipt in a
conspicuous place at the location or
premises being searched.
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(3) A receipt under subsection (1) or (2) must—
(a) contain the prescribed information; and
(b) be signed in accordance with the
regulations.
158L Retention by Chief Commissioner of
Police or Commissioner of seized things
(1) The Chief Commissioner of Police may
retain any thing seized by a police officer
under section 143, section 153, Division 7 of
this Part or section 171A for as long as—
(a) one of the following conditions are
met—
(i) the police officer suspects on
reasonable grounds that the thing
will compromise the welfare or
safety of a member of the public
or the offender's compliance with
a supervision order;
(ii) the police officer suspects on
reasonable grounds that the thing
relates to behaviour or conduct
associated with an increased risk
of the offender re-offending or
breaching the conditions of the
supervision order;
(iii) the thing is reasonably required
for the purposes of an
investigation of, or a proceeding
for, an offence against this Act or
any other offence; and
(b) the thing is not subject to forfeiture,
destruction or disposal under this Act or
any other Act or law.
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(2) The Commissioner may retain any thing
seized under section 143 or 153 (other than a
thing seized by a police officer under that
section) for as long as—
(a) one of the following conditions are
met—
(i) the community corrections officer,
supervision officer or specified
officer (as the case requires)
suspects on reasonable grounds
that the thing will compromise the
welfare or safety of a member of
the public or the offender's
compliance with a supervision
order;
(ii) the community corrections officer,
supervision officer or specified
officer (as the case requires)
suspects on reasonable grounds
that the thing relates to behaviour
or conduct associated with an
increased risk of the offender
re-offending or breaching the
conditions of the supervision
order;
(iii) in the case of a thing seized under
section 143, the supervision
officer or specified officer (as the
case requires) suspects on
reasonable grounds that the thing
will compromise—
(A) the good order or
management of the
residential facility; or
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(B) the safety and welfare of
offenders of staff of the
facility or of visitors to the
facility;
(iv) the thing is reasonably required
for the purposes of an
investigation of, or a proceeding
for, an offence against this Act or
any other Act or law or any other
offence; and
(b) the thing is not subject to forfeiture,
destruction or disposal under this Act or
any other Act or law.
158M Return of seized things if grounds for
seizure no longer applies
(1) Any thing seized by a police officer, a
community corrections officer, a supervision
officer or a specified officer (as the case
requires) under this Part or section 171A
must be returned, if the grounds set out in the
applicable section under which it was seized
for its seizure no longer apply—
(a) to the offender or, if the thing was
seized under section 143, to any other
person from whom it was seized; or
(b) if subsection (2) applies, to its lawful
owner, if it is reasonably practicable to
do so.
Note
This section does not preclude the possibility that
things may be retained indefinitely.
(2) If the police officer, community corrections
officer, supervision officer or specified
officer (as the case requires) who seized the
thing believes that the offender is not the
owner of the thing and is not entitled at law
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to possess it, the thing may be returned to
another person who the officer reasonably
believes to be the owner of the seized thing.
(3) Despite subsection (1), if an offender from
whom any thing was seized is residing at a
residential facility, the thing returned to the
offender under this section may be stored at
the residential facility as part of the property
of the offender and not given directly to the
offender.
158N Return of seized property—retrieval
notices
(1) This section applies to things seized at a
location or premises other than a residential
facility.
(2) If the Chief Commissioner of Police or the
Commissioner is no longer authorised under
section 158L to retain a thing seized under
this Part or section 171A, the Chief
Commissioner of Police or Commissioner
(as the case requires) must make reasonable
efforts to serve a written retrieval notice
on—
(a) the serious sex offender; or
(b) if the Chief Commissioner of Police or
the Commissioner reasonably believes
that the offender is not the owner of the
thing, another person who the Chief
Commissioner of Police or the
Commissioner, as the case requires,
believes to be the owner of the seized
thing.
(3) A retrieval notice under subsection (1) must
be given in accordance with the regulations
and include any prescribed information.
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(4) If the Chief Commissioner of Police has
made reasonable efforts to notify a person
in accordance with this section and the
regulations, and the thing has not been
retrieved, the thing is to be dealt with under
Division 3 of Part 4 of the Victoria Police
Act 2013 as if it were unclaimed property.
(5) If the Commissioner has made reasonable
efforts to notify a person in accordance with
this section and the regulations and the
seized thing has not been retrieved, the
seized thing is taken to be forfeited to the
Crown and the Minister may direct that the
seized thing forfeited to the Crown under this
section be disposed of in any manner that the
Minister thinks fit, including destruction.
158O Return of seized property—application to
Magistrates' Court
(1) The following persons may apply to the
Magistrates' Court for the return of a thing
seized under this Part or section 171A—
(a) the serious sex offender from whom the
thing was seized;
(b) a person claiming to be the lawful
owner of the thing seized.
(2) The applicant must serve a copy of the
application as soon as practicable on—
(a) the Chief Commissioner of Police or
the Commissioner, as the case requires;
and
(b) any other person who the applicant has
reason to believe is the owner of the
seized thing.
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(3) The Magistrates' Court may order the seized
thing be returned to the applicant if satisfied
on the balance of probabilities that—
(a) the Chief Commissioner of Police or
the Commissioner, as the case requires,
is not authorised to retain the thing
under section 158L; and
(b) the thing is not subject to forfeiture,
destruction or disposal under this Act
or any other Act or law.
(4) The Magistrates' Court may refuse to make
an order under subsection (3) if the Court is
satisfied that the applicant is not the owner
of the thing.
158P Chief Commissioner of Police or
Commissioner may apply to Magistrates'
Court for disposal or destruction order
(1) The Chief Commissioner of Police or the
Commissioner, as the case requires, may
apply to the Magistrates' Court for an
order that a thing seized under this Part or
section 171A may be destroyed or
disposed of.
(2) A copy of an application under
subsection (1) must be served on the
following persons as soon as practicable—
(a) the serious sex offender from whom the
thing was seized;
(b) if the Chief Commissioner or Police or
the Commissioner believes that the
offender is not the owner of the thing,
any other person who the Chief
Commissioner of Police or the
Commissioner, as the case requires,
believes to be the owner of the seized
thing.
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(3) On an application under this section, the
Magistrates' Court may order—
(a) that the seized thing be forfeited to the
Crown and destroyed or disposed of in
accordance with the order; or
(b) that the thing be returned to the owner.
(4) The Magistrates' Court may order that the
seized thing be forfeited to the Crown and
destroyed or disposed of in accordance with
the order if satisfied on the balance of
probabilities that—
(a) the grounds on which the thing was
seized are still satisfied; and
(b) the thing is no longer reasonably
required to be retained for the purposes
of an investigation of or a proceeding
for an offence against this Act or any
other offence.
(5) If the Magistrates' Court orders that the
seized thing be disposed of by sale, the Court
may order that the proceeds of the sale be
paid to the owner of the thing.
(6) The Magistrates' Court may order that the
seized thing be returned to the owner if
satisfied on the balance of probabilities
that—
(a) the Chief Commissioner of Police or
the Commissioner, as the case requires,
is not authorised to retain the thing
under section 158L; and
(b) the thing is not subject to forfeiture,
destruction or disposal under this Act or
any other Act or law.
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(7) An order under this section does not take
effect until—
(a) the day that is 30 days after the day on
which the order was made; or
(b) if an appeal is made before the
expiry of the period referred to in
paragraph (a), the appeal is determined.
158Q Proceeds of sale or disposal to be paid into
Consolidated Fund
Subject to an order to the contrary under
section 158P, any amount received from the
sale or disposal of seized things under this
Part or section 171A must be paid into the
Consolidated Fund.
158R Destruction or disposal of seized things
with owner's consent
The Chief Commissioner of Police or the
Commissioner may destroy or dispose of a
seized thing with the consent of the owner.
158S No liability
(1) A supervision officer or a specified officer is
not liable for injury or damage caused by the
use of force in accordance with—
(a) section 142 or 143; or
(b) section 146.
(2) A community corrections officer, a police
officer or a specified officer is not liable for
injury or damage caused by the use of force
in accordance with section 152 or 153.
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(3) A police officer is not liable for injury or
damage caused by the use of force in
accordance with—
(a) section 142 or 143; or
(b) section 158C; or
(c) section 158DA or 158DB; or
(d) section 165 or 171A.
(4) A specified officer is not liable for injury or
damage caused by the use of force in
accordance with section 158F.".
28 Powers of entry and search by police officer to
arrest offender
After section 171A(2) of the Principal Act
insert—
"(3) A police officer exercising a power of entry
under subsection (1) may—
(a) search that part of the premises that is
occupied by the offender, and any thing
(including any vehicle) belonging to, or
in the possession of or under the control
of, the offender at the premises; and
(b) search and examine the offender at the
premises.
(4) For the purposes of subsection (3), a search
of an offender means either or both a
garment search or a pat-down search.
(5) To the extent practicable, a pat-down search
must be conducted by a person of the same
sex as the offender being searched.
(6) A search under this section may continue
only for as long as necessary to achieve the
purpose of the search.
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(7) In carrying out a search under subsection (3),
a police officer may seize any thing found in
the possession or under the control of the
offender which the police officer reasonably
suspects—
(a) will compromise—
(i) the welfare or safety of a member
of the public; or
(ii) the offender's compliance with the
supervision order; or
(b) relates to behaviour or conduct
associated with an increased risk of the
offender re-offending or breaching the
conditions of the supervision order.
(8) A police officer may examine any thing, or
operate any electronic equipment seized
under subsection (7) for the purpose of
investigating—
(a) whether the offender has complied with
a supervision order; or
(b) whether the offender has re-offended or
has breached the conditions of a
supervision order.
(9) Without limiting subsection (8), a police
officer may seize or take a sample of any
thing belonging to, or found in the
possession or under the control of, the
offender if the officer suspects on reasonable
grounds that—
(a) the thing will afford evidence of the
commission of an indictable offence
(whether or not that offence is a breach
of a supervision order); and
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(b) it is necessary to seize or take a sample
of that thing in order to prevent its
concealment, loss or destruction or its
use in the commission of an indictable
offence (whether or not that offence is a
breach of a supervision order).
(10) A police officer exercising a power under
this section may direct the following persons
accompanying the police officer to exercise
those powers subject to the officer's
direction—
(a) a Victoria Police employee within the
meaning of the Victoria Police
Act 2013;
(b) any person who delivers services or
advice on behalf of Victoria Police.
(11) If necessary, a police officer may use
reasonable force to carry out a search or a
seizure under this section.
(12) In this section—
garment search means a search of any
article of clothing worn by a person or
in the person's possession, where the
article of clothing is touched or
removed from the person's body;
pat-down search means a search of a person
where the person's clothed body is
touched.
Note
See Division 9 of Part 10 which also applies to
searches and seizure under this section.".
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29 Regulations
At the end of section 198 of the Principal Act
insert—
"(2) Without limiting subsection (1), the
regulations may make provision for or with
respect to any matters in respect of or
incidental to seizure of things under Part 10
or section 171A, including, but not limited to
the following—
(a) the form of, and information to be
included in, receipts and registers;
(b) processes for returning seized things.
(3) The regulations—
(a) may be of general or limited
application; and
(b) may differ according to differences in
time, place or circumstance; and
(c) may confer a discretionary authority or
impose a duty on a specified person or
a specified class of person; and
(d) may require a matter affected by the
regulations to be—
(i) in accordance with a specified
standard or specified requirement;
or
(ii) approved by or to the satisfaction
of a specified person or a specified
class of person; or
(iii) as specified in both subparagraphs
(i) and (ii); and
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(e) may provide in a specified case or class
of case for the exemption of persons or
things from any of the provisions of the
regulations—
(i) whether unconditionally or on
specified conditions; and
(ii) either wholly or to any extent that
is specified; and
(f) may impose a penalty not exceeding
20 penalty units for a contravention of
the regulations.".
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Part 4—Other amendments to the
Principal Act
30 Definitions
In section 3(1) of the Principal Act, for the
definition of specified officer substitute—
"specified officer means a person authorised to act
as a specified officer under section 158F;".
31 Core conditions of supervision order—requirement
to obey instructions
(1) In section 16(2)(h) of the Principal Act, for
"section 120." substitute "section 120;".
(2) After section 16(2)(h) of the Principal Act
insert—
"(i) obey all instructions given by a community
corrections officer or a specified officer
under section 151.".
32 Decision on supervision order—general
In section 73(9A) of the Principal Act—
(a) for "confirms" substitute "exercises a power
under subsection (9) in respect of";
(b) for "order is confirmed" substitute
"court exercises that power".
33 Power of court on review
In section 78(3A) of the Principal Act—
(a) for "confirms a condition" substitute
"exercises a power under subsection (3) in
respect";
(b) for "confirms the condition" substitute
"exercises that power".
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34 Execution of arrest warrant
After section 92(3) of the Principal Act insert—
"(4) A person executing a warrant is not liable for
injury or damage caused by the use of force
in accordance with this section.".
35 Visitors to give certain information
After section 141(5) of the Principal Act insert—
"(6) A supervision officer or specified officer is
not liable for injury or damage caused by the
use of force in accordance with this
section.".
36 Specified officers
For section 158F(1) and (2) of the Principal Act
substitute—
"(1) A prison officer who is a community
corrections officer referred to in
section 12(4) of the Corrections
Act 1986 is authorised to act as a specified
officer.
(2) A prison officer in a class of prison officers
who are community corrections officers
referred to in section 12(4) of the
Corrections Act 1986 is authorised to act as
a specified officer.
(2A) A member of a class of prison officers who
are community corrections officers referred
to in section 12(4) of the Corrections
Act 1986 is authorised to act as a specified
officer.".
37 Duration of holding powers
In section 168 of the Principal Act for "10 hours"
substitute "72 hours".
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38 Sharing of information
(1) In section 189(1) of the Principal Act—
(a) omit "the use or disclosure";
(b) in paragraph (a), before "is reasonably
necessary" insert "the use or disclosure";
(c) in paragraph (b), before "is specifically
authorised" insert "the use or disclosure";
(d) in paragraph (c), before "is authorised"
insert "the use or disclosure";
(e) for paragraph (d) substitute—
"(d) the relevant person believes on
reasonable grounds it is necessary to
use or disclose the information—
(i) to reduce the risk of a person
committing a violent offence or
engaging in violent conduct; or
(ii) to lessen or prevent a threat to the
life, health, safety or welfare of
any person.".
(2) In section 189(4) of the Principal Act, in the
definition of relevant person—
(a) in paragraph (d), after "services" insert
"or advice";
(b) in paragraph (g), after "services" insert
"or advice";
(c) in paragraph (o), after "services" insert
"or advice";
(d) in paragraph (r), after "services" insert
"or advice";
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(e) in paragraph (w), after "services" insert
"or advice";
(f) in paragraph (zc), after "services" insert
"or advice".
(3) In section 189(4) of the Principal Act, in the
definition of relevant person, after paragraph (l)
insert—
"(la) any Victoria Police employee within the
meaning of the Victoria Police Act 2013; or
(lb) any person who delivers services or advice
on behalf of Victoria Police; or
(lc) an Australian lawyer for the purpose of
obtaining legal advice or representation in
relation to the administration or operation of
this Act; or".
39 Amendments to Schedule 1 (offences of slavery and
servitude)
In item 38 of Schedule 1 to the Principal Act, after
"section" insert "270.3, 270.5".
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Part 5—Amendment of the Sentencing Act 1991
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Part 5—Amendment of the Sentencing
Act 1991
40 New section 10AB inserted
After section 10AA of the Sentencing Act 1991
insert—
"10AB Custodial sentence for offence of
breaching supervision order under
Serious Sex Offenders (Detention and
Supervision) Act 2009
(1) Subject to subsection (2), in sentencing
an offender for an offence against
section 160 of the Serious Sex Offenders
(Detention and Supervision) Act 2009
(whether on appeal or otherwise), a court
must impose a term of imprisonment of not
less than 12 months unless the court finds
under section 10A that a special reason
exists.
Notes
1 Section 11(1) requires the court to fix a
non-parole period in the case of a sentence of
2 years imprisonment or more.
2 Section 11(2) enables the court to fix a
non-parole period in the case of a sentence of
imprisonment of 1 year or more but less than
2 years.
3 Section 11(3) requires that a non-parole period
must be at least 6 months less than the term of
the sentence.
(2) Subsection (1) applies only if the court is
satisfied beyond reasonable doubt that the
offender intentionally or recklessly failed to
comply with a restrictive condition of the
supervision order.
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Part 5—Amendment of the Sentencing Act 1991
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(3) In this section, restrictive condition and
supervision order have the same meanings
as in the Serious Sex Offenders
(Detention and Supervision) Act 2009.".
41 Consequential amendments
(1) In section 10A(2) of the Sentencing Act 1991, for
"10 or 10AA" substitute "10, 10AA or 10AB".
(2) After section 10A(3)(ab) of the Sentencing
Act 1991 insert—
"(ac) the Parliament's intention that a sentence of
imprisonment of not less than 12 months
should ordinarily be imposed for an offence
covered by section 10AB; and".
42 New section 159 inserted
At the end of Part 12 of the Sentencing Act 1991
insert—
"159 Transitional provisions—Serious Sex
Offenders (Detention and Supervision)
Amendment (Community Safety)
Act 2016
(1) This Act, as amended by Part 5 of the
Serious Sex Offenders (Detention and
Supervision) Amendment (Community
Safety) Act 2016, applies to the sentencing
of an offender for an offence alleged to have
been committed on or after the
commencement of that Part of that Act.
(2) For the purposes of subsection (1), if an
offence is alleged to have been committed
between 2 dates, one before and one after the
commencement of Part 5 of the Serious Sex
Offenders (Detention and Supervision)
Amendment (Community Safety)
Act 2016, the offence is alleged to have been
committed before that commencement.".
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Part 6—Amendment of other Acts
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Part 6—Amendment of other Acts
Division 1—Amendment of Sex Offenders
Registration Act 2004
43 Sex offender registration order
After section 11(8) of the Sex Offenders
Registration Act 2004 insert—
"(9) Despite anything to the contrary in this
section, in the circumstances specified in
section 6B of the Serious Sex Offenders
(Detention and Supervision) Act 2009, if
an offender is not already a registrable
offender under this Act, the court must make
an order, in accordance with section 6B of
that Act, that a person comply with the
reporting obligations under this Act.
(10) On the making of an order referred to in
subsection (9)—
(a) the offender is subject to that sex
offender registration order; and
(b) the offender is subject to the reporting
obligations under this Act for the period
specified in the sex offender
registration order, being a period of at
least 15 years; and
(c) subject to section 6(5), the offender is
taken to be a registrable offender for
the purposes of this Act.".
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Part 6—Amendment of other Acts
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44 When the report must be made
In the Table to section 12(1) of the Sex Offenders
Registration Act 2004—
(a) after the last entry in Column 1 of the Table
insert—
"A registrable offender referred
to in section 11(9) and (10)" ;
(b) after the last entry in Column 2 of the Table
insert—
"Within 7 days after the order referred
to in section 11(9) is made".
Division 2—Amendment of Corrections Act 1986
45 Definitions
In section 3(1) of the Corrections Act 1986
insert the following definition—
"violent offence means an offence listed in
Schedule 3;".
46 Employment under the Public Administration Act
(1) In section 12(1) of the Corrections Act 1986, for
"a Secretary" substitute "a secretary".
(2) After section 12(3) of the Corrections Act 1986
insert—
"(4) A prison officer, a prison officer in a class of
prison officers or a class of prison officers
may also be appointed under subsection (1)
as a community corrections officer or as
community corrections officers, as the case
requires.
Note
Under section 158F of the Serious Sex Offenders
(Detention and Supervision) Act 2009, these
officers are specified officers for the purposes of that
Act.".
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Part 6—Amendment of other Acts
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47 Definitions—Disclosure of information
In section 104ZX of the Corrections Act 1986, in
the definition of relevant person—
(a) in paragraph (e), after "advice to" insert
"or on behalf of";
(b) in paragraph (f), for "subcontractor."
substitute "subcontractor;";
(c) after paragraph (f) insert—
"(g) the Chief Commissioner of Police;
(h) a police officer;
(i) any Victoria Police employee within
the meaning of the Victoria Police
Act 2013;
(j) any person who delivers services or
advice on behalf of Victoria Police;
(k) the Commissioner of the Australian
Federal Police;
(l) a member or a special member of the
Australian Federal Police;
(m) the Director of Public Prosecutions for
Victoria;
(n) any person employed in the Office of
Public Prosecutions for Victoria;
(o) any person who delivers services or
advice on behalf of the Office of Public
Prosecutions for Victoria;
(p) the Commonwealth Director of Public
Prosecutions;
(q) any person employed in the Office of
the Commonwealth Director of Public
Prosecutions;
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Part 6—Amendment of other Acts
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(r) any person who delivers services or
advice on behalf of the Office of the
Commonwealth Director of Public
Prosecutions.".
48 Authorisation to use or disclose information
(1) For section 104ZY(2)(a) of the Corrections
Act 1986 substitute—
"(a) if the relevant person believes on reasonable
grounds that the use or disclosure is
necessary—
(i) to reduce the risk of a person
committing a violent offence; or
(ii) to lessen or prevent a threat to the life,
health, safety or welfare of any
person;".
(2) In section 104ZY(2)(k) of the Corrections
Act 1986, for "Control" substitute "Protection".
49 Authorisation to disclose information given to Adult
Parole Board
In section 104ZZ(1) of the Corrections
Act 1986—
(a) omit "the use or disclosure is reasonably
necessary";
(b) in paragraph (a), before "for the
administration" insert "the use or disclosure
is reasonably necessary";
(c) in paragraph (b), before "for the preparation"
insert "the use or disclosure is reasonably
necessary";
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Part 6—Amendment of other Acts
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(d) for paragraph (c) substitute—
"(c) the relevant person believes on
reasonable grounds that the use or
disclosure is necessary—
(i) to reduce the risk of a person
committing a violent offence; or
(ii) to lessen or prevent a threat to the
life, health, safety or welfare of
any person.".
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Part 7—Repeal of amending Act
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Part 7—Repeal of amending Act
50 Repeal of amending Act
This Act is repealed on 1 March 2018.
Note
The repeal of this Act does not affect the continuing operation
of the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
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Endnotes
Serious Sex Offenders (Detention and Supervision) Amendment (Community
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Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current
authorised versions of legislation and up-to-date legislative information.
† Minister's second reading speech—
Legislative Assembly: 23 March 2016
Legislative Council: 14 April 2016
The long title for the Bill for this Act was "A Bill for an Act to amend
the Serious Sex Offenders (Detention and Supervision) Act 2009, the
Sentencing Act 1991, the Sex Offenders Registration Act 2004, the
Corrections Act 1986 and other Acts to further protect the community
from sexual offending and for other purposes."
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