Corrections Amendment Act 2008

i Corrections Amendment Act 2008 No. 50 of 2008 TABLE OF PROVISIONS Section Page 1 Purpose 1 2 Commencement 2 3 New Part 9C inserted 2 PART 9C—PRISONER COMPENSATION QUARANTINE FUNDS 2 Division 1—Introductory 2 104O Definitions 2 104P Application 4 104Q Meaning of criminal act 4 104R Meaning of victim 5 Division 2—Awards of damages to prisoners 5 104S Agreements must be approved by court 5 104T Determination of amounts for medical and legal costs 5 104U Matters to be considered by court 6 Division 3—Payment of money to prisoner compensation quarantine fund 7 104V Damages awarded to prisoner to be paid to prisoner compensation quarantine fund 7 104W Prisoner compensation quarantine funds 8 Division 4—Notice of prisoner compensation quarantine fund 9 104X Victim may ask to be notified of award of damages to prisoner 9 104Y Notice to victims published 9 104Z Notice to victims directly 10 104ZA Applications for information 10 104ZB Disclosure of information by Secretary authorised 11 104ZC Confidentiality of information 12 104ZD Offence to disclose information 12 104ZE Notice to Secretary by victim 13 104ZF Notice to Secretary by creditors 13 -- 1 of 22 -- Section Page ii Division 5—Payments out of prisoner compensation quarantine fund 14 104ZG Payments out of fund where legal proceedings notified 14 104ZH Payments out of fund where notice from creditor received 15 104ZI Restriction not to affect payment of administration costs 16 104ZJ Payments out of fund where no notice given 16 104ZK Payments taken to be payments at direction of prisoner 17 104ZL When are legal proceedings finally determined 17 Division 6—General 17 104ZM Offence to provide false or misleading information 17 104ZN Annual report 18 4 Transition centres 18 5 Secrecy 18 6 Regulations 18 7 New section 117 inserted 18 117 Transitional provision—Corrections Amendment Act 2008 18 8 Repeal of amending Act 19 ═══════════════ ENDNOTES 20 -- 2 of 22 -- 1 Corrections Amendment Act 2008 † No. 50 of 2008 [Assented to 23 September 2008] The Parliament of Victoria enacts: 1 Purpose The main purpose of this Act is to amend the Corrections Act 1986 to provide for the creation of prisoner compensation quarantine funds for the purpose of paying into those funds certain damages awarded to prisoners and to provide for the payment out of those funds of certain amounts recoverable by victims and others from prisoners. Victoria -- 3 of 22 -- Corrections Amendment Act 2008 No. 50 of 2008 2 2 Commencement This Act comes into operation on the day after the day on which it receives the Royal Assent. 3 New Part 9C inserted After Part 9B of the Corrections Act 1986 insert— "PART 9C—PRISONER COMPENSATION QUARANTINE FUNDS Division 1—Introductory 104O Definitions In this Part— agreement includes compromise and acceptance of an offer of compromise; award of damages means damages— (a) awarded pursuant to a judgment of a court; or (b) paid or payable in accordance with an agreement between the parties to the agreement; civil wrong means an act or omission of the State— (a) that gives rise to a claim by a prisoner against the State; and (b) that occurred while the claimant was a prisoner detained in custody in a prison; and (c) that arose out of and in connection with his or her detention in custody in a prison; s. 2 See: Act No. 117/1986. Reprint No. 7 as at 18 October 2007 and amending Act Nos 53/2007, 12/2008 and 21/2008. LawToday: www. legislation. vic.gov.au -- 4 of 22 -- Corrections Amendment Act 2008 No. 50 of 2008 3 claim means a claim brought in tort, in contract or under statute or otherwise; court includes tribunal; criminal act has the meaning given in section 104Q; damages includes any form of monetary compensation; family member has the same meaning as in section 30A; initial quarantine period, in relation to a prisoner compensation quarantine fund, means the period of 12 months following the publication in the Government Gazette of the notice in respect of the fund under section 104Y; prisoner includes former prisoner; prisoner compensation quarantine fund has the meaning given in section 104V; quarantine period, in relation to a prisoner compensation quarantine fund relating to a prisoner, means— (a) the initial quarantine period; and (b) the period ending on the final determination of all legal proceedings by victims against the prisoner which are commenced within the initial quarantine period and which are notified to the Secretary under section 104ZE(1); s. 3 -- 5 of 22 -- Corrections Amendment Act 2008 No. 50 of 2008 4 State includes— (a) the Secretary; and (b) a contractor responsible for the management or operation of a prison; and (c) any employee of the Crown or of a person referred to in paragraph (a) or (b); victim has the meaning given in section 104R. 104P Application (1) This Part applies in respect of an award of damages to a prisoner in respect of a claim made by or on behalf of the prisoner against the State for a civil wrong. (2) This Part does not apply to a claim by or on behalf of a prisoner arising from and in connection with the prisoner's detention while on remand. (3) This Part does not apply to an award of damages to a prisoner in respect of a claim of false imprisonment. (4) This Part does not affect (and is subject to) any obligation imposed on the State or the Secretary by or under an enactment of the State or the Commonwealth to pay some other person money owed or due to or held on account of the prisoner. 104Q Meaning of criminal act (1) In this Part, criminal act means conduct that, on the balance of probabilities, would constitute an offence. s. 3 -- 6 of 22 -- Corrections Amendment Act 2008 No. 50 of 2008 5 (2) The definition of criminal act applies whether or not a prisoner whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of the offence. 104R Meaning of victim In this Part victim means— (a) a person who has had a criminal act committed against him or her; (b) a family member of a person who has had a criminal act committed against that person. Division 2—Awards of damages to prisoners 104S Agreements must be approved by court An agreement between the State and a prisoner for the payment of damages for a civil wrong is of no effect until it has been approved by a court. 104T Determination of amounts for medical and legal costs (1) An award of damages for a civil wrong must specify the amounts, if any, awarded or agreed in respect of— (a) existing and future medical costs; and (b) legal costs. (2) If the parties to an agreement between the State and a prisoner for the payment of damages for a civil wrong are unable to agree on any amount to be specified under subsection (1), the court must specify the amounts to be specified in the agreement for the purposes of that subsection and the agreement is varied accordingly. s. 3 -- 7 of 22 -- Corrections Amendment Act 2008 No. 50 of 2008 6 104U Matters to be considered by court (1) This section applies to— (a) an award of damages by a court for a civil wrong; and (b) an agreement between the State and a prisoner for the payment of damages for a civil wrong. (2) The court must not make the award or approve the agreement unless the court is satisfied— (a) that section 104T(1) has been complied with; and (b) that, in all the circumstances, the amounts specified for the purposes of section 104T(1) are appropriate portions of the total amount payable under the award or agreement having regard to— (i) the claim; and (ii) the loss or damage suffered by the prisoner; and (iii) the need to ensure as far as possible that victims are not deprived of an opportunity to enforce a successful claim for damages against a prisoner. (3) If legal costs are to be assessed and paid under an order made on taxation, the legal costs are taken under this Part to be specified in the award of damages. s. 3 -- 8 of 22 -- Corrections Amendment Act 2008 No. 50 of 2008 7 Division 3—Payment of money to prisoner compensation quarantine fund 104V Damages awarded to prisoner to be paid to prisoner compensation quarantine fund (1) The amount of any award of damages to a prisoner in respect of a civil wrong must be paid by the State to the Secretary immediately after the damages are awarded. (2) The amount to be paid under subsection (1) does not include any amount specified in the award of damages made or approved by the court as attributable to— (a) existing and future medical costs; and (b) legal costs. (3) An amount paid to the Secretary under subsection (1)— (a) must be held in trust for the prisoner by the Secretary during the quarantine period and until the final payment is made out of the prisoner compensation quarantine fund in accordance with this Part; and (b) may be paid out of the prisoner compensation quarantine fund only as authorised by this Part. (4) Money held by the Secretary in trust for a prisoner under this Part constitutes a prisoner compensation quarantine fund. (5) This section does not apply if the amount that would, but for this subsection, be required to be paid to the Secretary under subsection (1) does not exceed $10 000. s. 3 -- 9 of 22 -- Corrections Amendment Act 2008 No. 50 of 2008 8 104W Prisoner compensation quarantine funds (1) A prisoner compensation quarantine fund consists of— (a) any amount held by the Secretary in trust for a prisoner under this Part; and (b) any interest earned on that money. (2) The Secretary must deposit all money in a prisoner compensation quarantine fund into an interest-bearing account with an ADI. (3) The following may be paid out of the prisoner compensation quarantine fund— (a) amounts required to be paid out to any person in accordance with section 104ZG or 104ZH; (b) amounts required to be paid out in accordance with section 104ZJ in respect of the prisoner; (c) the costs of administration of the fund (including any taxes payable in respect of the fund). (4) The Secretary may only pay out of a prisoner compensation quarantine fund the costs of administration of the fund if that payment would not decrease the level of the fund below the amount of damages paid into the fund. (5) The Secretary is responsible for the administration of the p risoner compensation quarantine fund. s. 3 -- 10 of 22 -- Corrections Amendment Act 2008 No. 50 of 2008 9 Division 4—Notice of prisoner compensation quarantine fund 104X Victim may ask to be notified of award of damages to prisoner (1) A victim in relation to a criminal act by a prisoner may apply to the Secretary to be notified of an award of damages to the prisoner. (2) An application must be in writing. 104Y Notice to victims published (1) The Secretary must publish a notice advising of an award of damages to a prisoner as soon as practicable after the amount of damages is paid to the Secretary under section 104V. (2) The notice must— (a) state that the award of damages has been made to the prisoner in a claim against the State but must not state the amount of the award of damages; (b) state the name of the prisoner and any other names by which the prisoner is known; (c) state that money in that award has been paid to a prisoner compensation quarantine fund; (d) state the initial quarantine period for that fund; (e) invite victims in relation to criminal acts of the prisoner to seek further information from the Secretary about the fund; (f) contain contact details for seeking that further information. s. 3 -- 11 of 22 -- Corrections Amendment Act 2008 No. 50 of 2008 10 (3) The notice must be published— (a) in the Government Gazette; and (b) in a daily newspaper circulating generally in Victoria; and (c) a daily newspaper circulating generally in Australia. (4) The Secretary may also publish the notice on the Internet. 104Z Notice to victims directly The Secretary may forward a copy of the notice under section 104Y in respect of an award of damages to a prisoner to any victim who has applied to the Secretary under section 104X to be notified of an award of damages in respect of the prisoner. 104ZA Applications for information (1) A victim in relation to a criminal act by a prisoner may apply to the Secretary for information about a prisoner compensation quarantine fund with respect to that prisoner within the initial quarantine period in respect of that fund. (2) The Secretary by written notice may disclose the following information to the applicant if the Secretary is satisfied that the applicant is a victim in relation to a criminal act of a prisoner— (a) the amount of the award paid into the prisoner compensation quarantine fund in respect of the prisoner; (b) the start of the initial quarantine period; (c) the end of the initial quarantine period if no legal proceedings are notified under section 104ZE(1); s. 3 -- 12 of 22 -- Corrections Amendment Act 2008 No. 50 of 2008 11 (d) any other information that the Secretary from time to time believes will assist the victim to make an informed decision as to whether to bring proceedings against the prisoner. (3) The notice must include a statement advising the victim— (a) that the information is disclosed solely for use by the victim in deciding whether or not to bring legal proceedings; and (b) that the victim should consider seeking independent legal advice; and (c) that the information provided by the Secretary does not constitute legal advice or a recommendation to bring or not to bring legal proceedings; and (d) of the effect of sections 104ZC and 104ZD. 104ZB Disclosure of information by Secretary authorised The provision of information by the Secretary under section 104Y, 104Z or 104ZA— (a) is authorised despite any agreement to which the Secretary or the State is a party that would otherwise prohibit or restrict the disclosure of information concerning an award of damages; and (b) does not constitute a contravention of such an agreement. s. 3 -- 13 of 22 -- Corrections Amendment Act 2008 No. 50 of 2008 12 104ZC Confidentiality of information A person to whom information is provided under section 104Y, 104Z or 104ZA by the Secretary must treat that information in an appropriate manner that respects the confidentiality of that information. 104ZD Offence to disclose information (1) A person to whom information is disclosed under section 104Y, 104Z or 104ZA must not disclose that information to any other person except for the purposes of, or in connection with, the taking and determination of legal proceedings by the person against the prisoner concerned. Penalty: 60 penalty units. (2) A person (other than a person to whom information is disclosed under section 104Y, 104Z or 104ZA) who becomes aware of any information disclosed to a person under section 104Y, 104Z or 104ZA must not use that information or disclose it to any person. Penalty: 60 penalty units, in the case of a natural person; 1200 penalty units, in the case of a body corporate. (3) Nothing in subsection (1) prevents a person from disclosing information to a lawyer in the course of consulting that lawyer for legal advice. (4) Subsections (1) and (2) do not apply to information that is in the public domain. s. 3 -- 14 of 22 -- Corrections Amendment Act 2008 No. 50 of 2008 13 104ZE Notice to Secretary by victim (1) A victim who within the initial quarantine period for a prisoner compensation quarantine fund relating to a prisoner commences legal proceedings for the recovery of damages against the prisoner in respect of a criminal act by the prisoner against the victim may give written notice to the Secretary of that fact. (2) A victim may give written notice to the Secretary of the final determination of the legal proceedings notified by the victim under subsection (1) and of any amount awarded to the victim in those proceedings within 14 days after the final determination of the proceedings. 104ZF Notice to Secretary by creditors (1) Any person who has a judgment debt against the prisoner or who is entitled under any enactment to payment of an amount by the prisoner and who has not recovered that judgment debt or been paid that amount may give notice to the Secretary of that fact. (2) A notice under subsection (1) must— (a) be in writing; and (b) be accompanied by a copy of any relevant document that substantiates the facts set out in the notice; and (c) be given during the quarantine period. (3) The Secretary may require a person who has given a notice under this section to provide any further information that the Secretary reasonably requires to substantiate the facts set out in the notice. s. 3 -- 15 of 22 -- Corrections Amendment Act 2008 No. 50 of 2008 14 Division 5—Payments out of prisoner compensation quarantine fund 104ZG Payments out of fund where legal proceedings notified (1) This section applies if the Secretary has received a notice under section 104ZE(1) in respect of legal proceedings against a prisoner to whom a prisoner compensation quarantine fund relates. (2) The Secretary must not pay any money out of the prisoner compensation quarantine fund to any person until the end of the quarantine period for the fund. (3) The Secretary must, within 45 days after the end of the quarantine period, pay out of the prisoner compensation quarantine fund to the persons entitled to payment any amounts required to satisfy— (a) any award against the prisoner that was notified to the Secretary under section 104ZE(2); and (b) any judgment debt against, or entitlement to be paid by, the prisoner that was notified to the Secretary under section 104ZF— that the Secretary is satisfied is a valid claim on the prisoner. (4) If the amount in the prisoner compensation quarantine fund is not sufficient to pay the amounts required to be paid out under subsection (3), the Secretary must make payments from the fund under that subsection on a pro rata basis having regard to any priority of payment required by law. s. 3 -- 16 of 22 -- Corrections Amendment Act 2008 No. 50 of 2008 15 (5) If any amount remains in the prisoner compensation quarantine fund after all amounts are paid out under subsection (3), the Secretary must pay the remaining amount to or at the direction of the prisoner within, or as soon as practicable after the end of, the period of 45 days after the end of the quarantine period. 104ZH Payments out of fund where notice from creditor received (1) This section applies if the Secretary has been given notice by a person under section 104ZF in respect of a prisoner and has not been notified under section 104ZE(1) of legal proceedings against that prisoner. (2) The Secretary must not pay any money out of the prisoner compensation quarantine fund to any person until the end of the initial quarantine period for the fund. (3) The Secretary must, within 45 days after the end of the initial quarantine period, pay out of the prisoner compensation quarantine fund to the persons entitled to payment any amounts required to satisfy any judgment debt against, or entitlement to be paid by, the prisoner— (a) that was notified to the Secretary under section 104ZF during the initial quarantine period; and (b) that the Secretary is satisfied is a valid claim on the prisoner. (4) If the amount in the prisoner compensation quarantine fund is not sufficient to pay the amounts required to be paid out under subsection (3), the Secretary must make payments from the fund under that s. 3 -- 17 of 22 -- Corrections Amendment Act 2008 No. 50 of 2008 16 subsection on a pro rata basis having regard to any priority of payment required by law. (5) If any amount remains in the prisoner compensation quarantine fund after all amounts are paid out under subsection (3), the Secretary must pay the remaining amount to or at the direction of the prisoner within, or as soon as practicable after the end of, the period of 45 days after the end of the initial quarantine period. 104ZI Restriction not to affect payment of administration costs Sections 104ZG and 104ZH do not prevent the payment out of a prisoner compensation quarantine fund of any amount for the costs of administration of the fund (including payment of taxes in respect of the fund) authorised under section 104W and those costs are payable out of the fund before payment of any other amounts under sections 104ZG and 104ZH. 104ZJ Payments out of fund where no notice given (1) This section applies if no notice is given to the Secretary under section 104ZE(1) or section 104ZF in relation to the prisoner to whom a prisoner compensation quarantine fund relates within the initial quarantine period. (2) The Secretary must pay all money in the prisoner compensation quarantine fund to or at the direction of the prisoner within 45 days after the end of the initial quarantine period. s. 3 -- 18 of 22 -- Corrections Amendment Act 2008 No. 50 of 2008 17 104ZK Payments taken to be payments at direction of prisoner The payment by the Secretary of an amount out of a prisoner compensation quarantine fund in accordance with this Part is taken to be a payment at the direction of the prisoner and operates as a discharge, to the extent of the payment, of any liability of the State or the Secretary to pay the amount to the prisoner as damages. 104ZL When are legal proceedings finally determined (1) Subject to subsection (2), in this Part legal proceedings are not finally determined if— (a) any period for bringing an appeal in respect of the proceedings has not expired (ignoring any period that may be available by way of extension of time to appeal); or (b) any appeal in respect of the legal proceedings is pending. (2) In this Part, legal proceedings are taken to be finally determined if the legal proceedings are settled or discontinued. Division 6—General 104ZM Offence to provide false or misleading information A person must not give information to the Secretary under this Part that the person believes to be false or misleading in any material particular. Penalty: 60 penalty units. s. 3 -- 19 of 22 -- Corrections Amendment Act 2008 No. 50 of 2008 18 104ZN Annual report The Secretary must provide an annual written report on the operation of this Part to the Minister and the Attorney-General. __________________". 4 Transition centres In section 4(1) of the Corrections Act 1986 after "8A" insert ", 9C". 5 Secrecy After section 30(3)(dc) of the Corrections Act 1986 insert— "(dd) disclosing information under section 104Y, 104Z or 104ZA; or". 6 Regulations After section 112(1)(md) of the Corrections Act 1986 insert— "(me) matters to be included in applications and notices under Part 9C;". 7 New section 117 inserted At the end of Part 11 of the Corrections Act 1986 insert— "117 Transitional provision—Corrections Amendment Act 2008 (1) Part 9C applies to an award of damages made to a prisoner against the State on or after the commencement of the Corrections Amendment Act 2008 even if the legal proceedings were commenced by the prisoner before that commencement. (2) Words used in subsection (1) have the same meanings as they have in Part 9C.". s. 4 -- 20 of 22 -- Corrections Amendment Act 2008 No. 50 of 2008 19 8 Repeal of amending Act This Act is repealed on the first anniversary of the day on which it receives the Royal Assent. 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. 8 -- 21 of 22 -- Corrections Amendment Act 2008 No. 50 of 2008 20 ENDNOTES † Minister's second reading speech— Legislative Assembly: 31 July 2008 Legislative Council: 21 August 2008 The long title for the Bill for this Act was "A Bill for an Act to amend the Corrections Act 1986 to provide for the creation of prisoner compensation quarantine funds for the purpose of paying into them certain damages awarded to prisoners and to provide for the payment out of them of certain amounts recoverable by victims and others from prisoners and for other purposes." Endnotes -- 22 of 22 --