Justice Legislation Amendment (Cancellation of Parole and Other Matters) Act 2013
Authorised by the Chief Parliamentary Counsel
Authorised Version
i
Justice Legislation Amendment (Cancellation of
Parole and Other Matters) Act 2013
No. 15 of 2013
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY 1
1 Purposes 1
2 Commencement 2
PART 2—AMENDMENTS RELATING TO PAROLE OF
PRISONERS 3
Division 1—Cancellation of parole 3
3 New sections 77 to 77D substituted for section 77 3
77 Cancellation of parole 3
77A Revocation of cancellation 6
77B Return of prisoner to prison on cancellation of parole 6
77C Power to direct that time on parole is time served 7
77D Board may arrange for examination of prisoner 8
4 New section 122 inserted 8
122 Transitional provisions—Justice Legislation
Amendment (Cancellation of Parole and Other
Matters) Act 2013 8
5 New Schedule 3 inserted 10
SCHEDULE 3—Violent Offences 10
6 Consequential amendments 12
Division 2—Electronic monitoring 13
7 Powers of Adult Parole Board relating to conditions of parole 13
8 Amendment of Surveillance Devices Act 1999 13
PART 3—AMENDMENTS RELATING TO THE LEGAL
REPRESENTATION OF CHILDREN 14
9 Appeal to County Court or Supreme Court 14
10 Legal representation 14
11 Proceedings in which a child is required to be legally
represented 16
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12 New section 623 inserted 16
623 Transitional provision—Justice Legislation
Amendment (Cancellation of Parole and Other
Matters) Act 2013 16
PART 4—REPEAL OF AMENDING ACT 18
13 Repeal of amending Act 18
═══════════════
ENDNOTES 19
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Authorised by the Chief Parliamentary Counsel
Authorised Version
1
Justice Legislation Amendment
(Cancellation of Parole and Other
Matters) Act 2013 †
No. 15 of 2013
[Assented to 26 March 2013]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1 Purposes
The main purposes of this Act are—
(a) to amend the Corrections Act 1986—
(i) to provide for the cancellation of parole
in circumstances where a prisoner is
charged with or convicted or found
Victoria
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Part 1—Preliminary
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guilty of certain offences while on
parole; and
(ii) to clarify the powers of the Adult
Parole Board in relation to electronic
monitoring; and
(b) to amend the Surveillance Devices Act 1999
in relation to electronic monitoring; and
(c) to amend the Children, Youth and Families
Act 2005 in relation to proceedings in the
Family Division of the Children's Court to
clarify the circumstances in which—
(i) a child may be legally represented; and
(ii) a child is sufficiently mature to give
instructions to a legal practitioner.
2 Commencement
(1) This Part and Part 3 come into operation on the
day after the day on which this Act receives the
Royal Assent.
(2) Subject to subsection (3), the remaining
provisions of this Act come 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 September 2013,
it comes into operation on that day.
__________________
s. 2
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Act 2013
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Authorised by the Chief Parliamentary Counsel
PART 2—AMENDMENTS RELATING TO PAROLE OF
PRISONERS
Division 1—Cancellation of parole
3 New sections 77 to 77D substituted for section 77
For section 77 of the Corrections Act 1986
substitute—
"77 Cancellation of parole
(1) Subject to this section, if a prisoner is
released on parole the Board may, at any
time before the end of the parole period, by
order cancel the parole.
(2) Subject to subsection (3), the Board must
consider whether to cancel the parole or to
vary the terms and conditions of the parole
of a prisoner who is charged, while on
parole, with an offence that—
(a) is punishable by imprisonment; and
(b) is alleged to have been committed
during the parole period.
(3) If—
(a) the prisoner referred to in subsection
(2) was released on parole in respect of
a sexual offence or a serious violent
offence; and
(b) the offence with which the prisoner was
charged, while on parole, was a sexual
offence or a violent offence—
the Board must determine under subsection
(2) to cancel the parole of the prisoner unless
the Board is satisfied that circumstances
exist that justify the continuation of the
parole.
See:
Act No.
117/1986.
Reprint No. 9
as at
18 March
2012
and
amending
Act No.
82/2012.
LawToday:
www.
legislation.
vic.gov.au
s. 3
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(4) Subject to subsections (5) and (6), the Board
must consider whether to cancel the parole or
to vary the terms and conditions of the parole
of a prisoner who is convicted, while on
parole, of an offence that—
(a) is punishable by imprisonment; and
(b) was committed during the parole
period.
(5) Subject to subsection (6), the Board must
determine under subsection (4) to cancel the
parole of the prisoner unless the Board is
satisfied that circumstances exist that justify
the continuation of the parole.
(6) If a prisoner—
(a) is released on parole in respect of a
sexual offence or a serious violent
offence; and
(b) is convicted, while on parole, of a
sexual offence or a violent offence that
was committed during the parole
period—
the prisoner's parole is taken to have been
cancelled on that conviction.
(7) If the prisoner is sentenced to another prison
sentence in respect of one or more offences
committed during the parole period, whether
in Victoria or elsewhere, the Board may by
order cancel the prisoner's parole, even
though the parole period may already have
elapsed.
s. 3
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(8) For the purposes of this section, an offence is
taken to have been committed during the
parole period if—
(a) the offence is committed between
2 dates, one of which is within the
parole period; or
(b) the parole period is between the 2 dates
referred to in paragraph (a).
(9) In this section—
conviction includes a finding of guilt by a
court, whether or not a conviction is
recorded;
serious violent offence means any of the
following offences—
(a) an offence to which clause 2 of
Schedule 1 to the Sentencing Act
1991 applies;
(b) an offence against any of the
following provisions of the
Crimes Act 1958—
(i) section 75A (armed
robbery);
(ii) section 77 (aggravated
burglary);
(iii) section 197A (arson causing
death);
(c) false imprisonment;
(d) an offence of conspiracy to
commit, incitement to commit or
attempting to commit an offence
referred to in paragraphs (b)
and (c);
s. 3
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(e) any other offence, whether
committed in Victoria or
elsewhere, the necessary elements
of which consist of elements that
constitute any of the offences
referred to in paragraphs (b) to
(d);
sexual offence means an offence listed in
Schedule 1 to the Serious Sex
Offenders (Detention and
Supervision) Act 2009;
violent offence means an offence listed in
Schedule 3.
77A Revocation of cancellation
(1) If the Board has cancelled a prisoner's parole
it may at any time by a further order revoke
the cancellation.
(2) The Board may by order revoke the
cancellation of a prisoner's parole under
section 77(6) if it is satisfied that exceptional
circumstances exist.
(3) A parole order revives on the making of the
order revoking the cancellation of the parole.
(4) The Board must not make an order revoking
an order cancelling a prisoner's parole if a
warrant has been issued under section 77B
unless the Board is satisfied that the warrant
will not be executed.
77B Return of prisoner to prison on
cancellation of parole
(1) If a prisoner's parole is cancelled or taken to
be cancelled, the Board may—
(a) authorise any member of the police
force, by warrant signed by the
Secretary or a member of the Board, to
s. 3
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break, enter and search any place where
the prisoner is reasonably believed to
be and to arrest the prisoner and return
the prisoner to prison; or
(b) whether or not a warrant is issued under
paragraph (a), authorise the making of
an application to a magistrate for a
warrant—
(i) authorising any member of the
police force to break, enter and
search any place where the
prisoner is reasonably believed to
be and to arrest the prisoner and
return the prisoner to prison; or
(ii) authorising any other officer to
arrest the prisoner and return the
prisoner to prison.
(2) If a prisoner's parole is cancelled or taken to
be cancelled—
(a) the original warrant to imprison or
other authority for the person's
imprisonment is to be regarded as again
in force; and
(b) any period during which the parole
order was in force is not to be regarded
as time served in respect of the prison
sentence unless a direction under
section 77C applies.
77C Power to direct that time on parole is time
served
The Board may direct that some or all of the
period during which a parole order that is
cancelled or taken to be cancelled was in
force is to be regarded as time served in
respect of the prison sentence.
s. 3
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77D Board may arrange for examination of
prisoner
The Board, in determining whether to make
or vary a parole order, cancel a prisoner's
parole or revoke the cancellation of parole,
may—
(a) arrange for the examination of the
prisoner by a registered medical
practitioner, psychiatrist or
psychologist; and
(b) require the registered medical
practitioner, psychiatrist, psychologist
or any other person whom the Board
believes may be able to do so to give a
report in writing to the Board.".
4 New section 122 inserted
At the end of Part 11 of the Corrections Act 1986
insert—
'122 Transitional provisions—Justice
Legislation Amendment (Cancellation of
Parole and Other Matters) Act 2013
(1) In this section—
commencement day means the day on which
section 3 of the Justice Legislation
Amendment (Cancellation of Parole
and Other Matters) Act 2013 comes
into operation.
(2) In this section words and expressions have
the same meanings as they have in section 77
as in force on and after the commencement
day.
s. 4
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(3) In section 77(2) and (3) as in force on and
after the commencement day, a reference to
a charge includes a reference to a charge that
was made before the commencement day but
had not been dealt with by a court before that
day and was still pending on that day.
(4) Section 77(4), (5) and (6) as in force on and
after the commencement day do not apply in
relation to a prisoner if the conviction
occurred before the commencement day.
(5) Section 77 as in force on and after the
commencement day applies as if it included
the following provisions—
"(6A) The Board must consider whether to
cancel the parole or to vary the terms
and conditions of the parole of a
prisoner who—
(a) is released on parole in respect of
a sexual offence or a serious
violent offence; and
(b) was convicted before the
commencement day of a sexual
offence or a violent offence that
was committed during the parole
period.
(6B) The Board must determine under
subsection (6A) to cancel the parole of
the prisoner unless the Board is
satisfied that circumstances exist that
justify the continuation of the parole.".'.
s. 4
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5 New Schedule 3 inserted
After Schedule 2 to the Corrections Act 1986
insert—
"__________________
SCHEDULE 3
Section 77
VIOLENT OFFENCES
1. A serious violent offence within the meaning
of section 77.
2. An offence at common law of affray, riot or
common assault.
3. An offence against any of the following
sections of the Crimes Act 1958—
(a) section 18 (causing injury intentionally
or recklessly);
(b) section 19 (administering certain
substances);
(c) section 21A (stalking);
(d) section 22 (conduct endangering life);
(e) section 23 (conduct endangering
persons);
(f) section 24 (negligently causing serious
injury);
(g) section 25 (setting traps etc. to kill);
(h) section 26 (setting traps etc. to cause
serious injury);
(i) section 27 (extortion with threat to kill);
(j) section 28 (extortion with threat to
destroy property etc.);
s. 5
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(k) section 29 (using firearm to resist arrest
etc.);
(l) section 30 (threatening injury to prevent
arrest);
(m) section 31 (assaults);
(n) section 31A (use of firearms in
commission of offences);
(o) section 31B (being armed with criminal
intent);
(p) section 32 (performing female genital
mutilation);
(q) section 33 (taking person from Victoria
with intention of having prohibited
female genital mutilation performed);
(r) section 75 (robbery);
(s) section 76 (burglary) in circumstances
where the offender entered the building
or part of the building as a trespasser
with intent to commit an offence
involving an assault to a person in the
building or part in question;
(t) section 197(2) (destroying or damaging
property) in circumstances where the
offender intends by the destruction or
damage to endanger the life of another;
(u) section 198 (threats to destroy or damage
property);
(v) section 199 (possessing anything with
intent to destroy or damage property);
(w) section 317 (offences connected with
explosive substances);
(x) section 317A (bomb hoaxes).
s. 5
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4. An offence of conspiracy to commit,
incitement to commit or attempting to commit
any of the offences referred to in clauses 1, 2
and 3.
5. An offence, whether committed in Victoria or
elsewhere, the necessary elements of which
consist of elements that constitute any of the
offences referred to in clauses 1, 2 and 3.
6. 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).
7. An offence against section 100 (contravention
of personal safety intervention order) of the
Personal Safety Intervention Orders Act
2010.".
6 Consequential amendments
In the Corrections Act 1986—
(a) in section 79G for "or deemed" substitute
"or taken";
(b) in sections 79J and 79K for "77(6)(a)"
(wherever occurring) substitute "77B(1)(a)";
s. 6
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(c) in sections 79J and 79K for "77(6)(b)"
(wherever occurring) substitute
"77B(1)(b)".
Division 2—Electronic monitoring
7 Powers of Adult Parole Board relating to conditions
of parole
For section 74(5) of the Corrections Act 1986
substitute—
"(5) The Board may—
(a) impose additional terms and conditions
on the parole order; and
(b) attach to a condition to which the
parole order is subject a requirement for
electronic monitoring of the prisoner to
monitor compliance with the condition;
and
(c) vary the terms and conditions to which
the parole order is subject.".
8 Amendment of Surveillance Devices Act 1999
After section 8(2)(aa) of the Surveillance Devices
Act 1999 insert—
"(ab) the installation, use or maintenance of a
tracking device in accordance with a parole
order under the Corrections Act 1986; or".
__________________
s. 7
See:
Act No.
21/1999.
Reprint No. 2
as at
27 May 2010
and
amending
Act Nos
72/2011,
13/2012 and
82/2012.
LawToday:
www.
legislation.
vic.gov.au
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Authorised by the Chief Parliamentary Counsel
PART 3—AMENDMENTS RELATING TO THE LEGAL
REPRESENTATION OF CHILDREN
9 Appeal to County Court or Supreme Court
(1) Section 328(6)(j) of the Children, Youth and
Families Act 2005 is repealed.
(2) In section 328(10) of the Children, Youth and
Families Act 2005, after "(except paragraph (c)),"
insert "524,".
10 Legal representation
(1) In section 524(1)(a) of the Children, Youth and
Families Act 2005, after "child" insert "aged
10 years or more".
(2) After section 524(1) of the Children, Youth and
Families Act 2005 insert—
"(1A) If a child aged 10 years or more is not,
subject to section 216, separately legally
represented in a proceeding referred to in
section 525(1), the Court must adjourn the
hearing of the proceeding to enable the child
to obtain legal representation unless the
Court makes a determination under
subsection (1B).
See:
Act No.
96/2005.
Reprint No. 3
as at
1 January
2011
and
amending
Act Nos
51/2006,
53/2010,
27/2011,
29/2011,
54/2011,
80/2011,
20/2012,
23/2012,
26/2012,
48/2012 and
82/2012.
LawToday:
www.
legislation.
vic.gov.au
s. 9
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(1B) The Court may determine that a child aged
10 years or more is not mature enough to
give instructions to a legal practitioner,
considering—
(a) the child's ability to form and
communicate the child's own views;
and
(b) the child's ability to give instructions in
relation to the primary issues in dispute;
and
(c) any other matter the Court considers
relevant.".
(3) In section 524(2) of the Children, Youth and
Families Act 2005 omit "a child who, in the
opinion of the Court, is mature enough to give
instructions is not, subject to section 216,
separately legally represented in a proceeding
referred to in section 525(1) or".
(4) In section 524(3) of the Children, Youth and
Families Act 2005 omit "or, in the case of a
proceeding in the Family Division, that the child
is otherwise represented pursuant to leave granted
under subsection (8)".
(5) In section 524(4) of the Children, Youth and
Families Act 2005—
(a) for "who, in the opinion of the Court"
substitute "aged under 10 years or a child
aged 10 years or more whom the Court
determines under subsection (1B)";
(b) for "must" substitute "may".
(6) After section 524(4) of the Children, Youth and
Families Act 2005 insert—
"(4A) If the Court has adjourned the hearing of a
proceeding in the Family Division to enable
a child to obtain legal representation, the
s. 10
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Court may resume the hearing whether or not
the child has obtained legal representation.".
(7) In section 524(11) of the Children, Youth and
Families Act 2005 for "A legal practitioner
representing, in the Family Division, a child who"
substitute "Despite subsection (10), a legal
practitioner representing, in the Family Division, a
child aged under 10 years or a child aged 10 years
or more whom the Court determines under
subsection (1B)".
11 Proceedings in which a child is required to be legally
represented
In section 525(1) of the Children, Youth and
Families Act 2005, for "child must be" substitute
"child aged 10 years or more must be".
12 New section 623 inserted
After section 622 of the Children, Youth and
Families Act 2005 insert—
"623 Transitional provision—Justice
Legislation Amendment (Cancellation of
Parole and Other Matters) Act 2013
(1) Sections 524 and 525, as amended by
sections 10 and 11 of the Justice Legislation
Amendment (Cancellation of Parole and
Other Matters) Act 2013, apply to a
proceeding in the Family Division that—
(a) commences on or after the
commencement of sections 10 and 11
of that Act; or
(b) had been commenced but not
determined immediately before the
commencement of sections 10 and 11
of that Act.
s. 11
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(2) Sections 328 and 524, as amended by
sections 9 and 10 of the Justice Legislation
Amendment (Cancellation of Parole and
Other Matters) Act 2013, apply to an
appeal under section 328 that—
(a) is made on or after the commencement
of sections 9 and 10 of that Act; or
(b) had been made but not determined
immediately before the commencement
of section 10 of that Act.
(3) The amendment of sections 328, 524 and
525 by sections 9, 10 and 11 of the Justice
Legislation Amendment (Cancellation of
Parole and Other Matters) Act 2013 does
not affect the rights of the parties in the
proceedings known as A & B v Children's
Court of Victoria & Ors [2012] VSC 589.".
__________________
s. 12
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PART 4—REPEAL OF AMENDING ACT
13 Repeal of amending Act
This Act is repealed on 1 September 2014.
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).
═══════════════
s. 13
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ENDNOTES
† Minister's second reading speech—
Legislative Assembly: 6 February 2013
Legislative Council: 21 February 2013
The long title for the Bill for this Act was "A Bill for an Act to amend the
Corrections Act 1986 in relation to the cancellation of parole and the
powers of the Adult Parole Board in relation to electronic monitoring of
prisoners released on parole, to amend the Children, Youth and
Families Act 2005 in relation to the legal representation of children
before the Family Division of the Children's Court and to amend the
Surveillance Devices Act 1999 and for other purposes."
Endnotes
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