Corrections Legislation Amendment Act 2016 No. 57 of 2016

TABLE OF PROVISIONSSection Page

1 Purpose 12 Commencement 23 New section 8AB inserted 24 Delegation by Governor 35 Visitors to give prescribed information 36 Governor may refuse or terminate visits for security reasons 37 Search 38 New Division 5A of Part 8 inserted 49 Amendment of sections 79J and 79K 1310 Powers and duties of officers 1311 Delegation 1312 Officers may use force to enforce directions in certain

circumstances 1313 Definitions for Part 9E of the Principal Act 1414 Authorisation to use or disclose information 1515 New section 104ZYA inserted 1716 New section 108A inserted 1817 Repeal of amending Act 19

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Endnotes 20

1 General information 20

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Corrections Legislation Amendment Act 2016†

No. 57 of 2016

[Assented to 2 November 2016]

The Parliament of Victoria enacts:

1 Purpose

The main purpose of this Act is to amend the Corrections Act 1986—

(a) to provide additional powers to prison officers who are community corrections officers in relation to the supervision of prisoners on parole where the supervision would otherwise pose a high risk of violence or threat to the safety of a person; and

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(b) to provide the Secretary with an express power to issue a warrant, or authorise the making of an application for a warrant, to arrest and return to prison a prisoner who is unlawfully released from custody; and

(c) to broaden the circumstances in which personal or confidential information may be disclosed and to include further classes of persons who may use or disclose that information; and

(d) to provide further exemptions from liability for any damage or injury caused by the use of reasonable force by corrections staff to ensure a consistent approach to exemption throughout that Act; and

(e) to make other minor and technical amendments.

2 Commencement

(1) This Act, except sections 8 and 16, comes into operation on the day after the day on which this Act receives the Royal Assent.

(2) Subject to subsection (3), sections 8 and 16 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 August 2017, it comes into operation on that day.

3 New section 8AB inserted

After section 8A of the Corrections Act 1986 insert—

"8AB Delegation by Commissioner

The Commissioner may by instrument delegate to any employee of the Department any of the Commissioner's powers and

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functions under this Act other than this power of delegation.".

4 Delegation by Governor

In section 24 of the Corrections Act 1986, after "this Act" insert "or any regulations made under this Act".

5 Visitors to give prescribed information

After section 42(7) of the Corrections Act 1986 insert—

"(8) A prison officer who uses force in accordance with this section is not liable for injury or damage caused by that use of force.".

6 Governor may refuse or terminate visits for security reasons

After section 43(3) of the Corrections Act 1986 insert—

"(4) A prison officer who uses force in accordance with this section is not liable for injury or damage caused by that use of force.".

7 Search

After section 45(6) of the Corrections Act 1986 insert—

"(6A) A prison officer who uses force in accordance with this section is not liable for injury or damage caused by that use of force.".

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8 New Division 5A of Part 8 inserted

After Division 5 of Part 8 of the Corrections Act 1986 insert—

"Division 5A—Safety powers that may be exercised in supervision of prisoners

on parole78F Definitions for Division 5A

In this Division—

specified officer has the same meaning as in the Serious Sex Offenders (Detention and Supervision) Act 2009;

supervision of a prisoner on parole means any function that may be performed by a community corrections officer when engaged in the supervision of the prisoner and includes—

(a) conducting visits and interviews of the prisoner; and

(b) arranging assessments of the prisoner for treatments, programs and training; and

(c) giving directions in respect of unpaid work.

78G When may the powers under this Division be exercised?

(1) Subject to subsection (3), a specified officer may exercise powers under this Division in relation to a prisoner on parole if authorised to do so by the Commissioner.

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(2) The Commissioner may authorise a specified officer to exercise powers under this Division if the Commissioner believes on reasonable grounds that the supervision of the prisoner on parole would otherwise pose a high risk of violence or other threat to the safety of any person engaged in that supervision or to any other person.

(3) A specified officer may exercise powers under this Division—

(a) when engaged in the supervision of the prisoner on parole or assisting in that supervision; and

(b) in accordance with any direction given by the Commissioner.

(4) The powers that may be exercised by a specified officer under this Division are in addition to any powers the specified officer may exercise under this Act or the Serious Sex Offenders (Detention and Supervision) Act 2009.

78H General powers

(1) A specified officer may—

(a) direct a prisoner on parole to do or not do anything that the specified officer believes on reasonable grounds is necessary for the safety of any person; and

(b) use reasonable force to compel a prisoner on parole to obey a direction if the specified officer believes on reasonable grounds that the use of force is necessary to prevent the specified officer, the prisoner on parole or any

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other person being killed or seriously injured; and

(c) in accordance with subsection (3), apply an instrument of restraint to the prisoner on parole if the specified officer believes on reasonable grounds that the application of the instrument of restraint is necessary to prevent the prisoner on parole or another person being killed or seriously injured.

(2) For the purposes of subsection (1)(b), a specified officer may use any weapon, other than a firearm, in accordance with an exemption order made under the Control of Weapons Act 1990.Examples

An extendable baton or capsicum spray, if the weapon is subject to an exemption order applying to the specified officer in the circumstances.

(3) For the purposes of subsection (1)(c), a specified officer may apply an instrument of restraint to a prisoner on parole if—

(a) the instrument, or type of instrument, is approved by the Secretary; and

(b) the instrument is used in the manner determined by the Secretary.

78I Search

(1) The Commissioner may give a direction under this section if the Commissioner—

(a) reasonably suspects a search referred to in subsection (2) is necessary to monitor the compliance of a prisoner on parole with the parole order; or

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(b) reasonably suspects the prisoner on parole of behaviour or conduct associated with an increased risk of the prisoner re-offending or breaching the conditions of the parole order.

(2) The Commissioner may at any time direct a specified officer—

(a) to search that part of the residence of the prisoner on parole that is occupied by the prisoner and any thing (including any vehicle) belonging to or in the possession of, or under the control of, the prisoner, at the residence; or

(b) to search and examine the prisoner on parole at the residence.

(3) For the purposes of subsection (2), a search of a prisoner on parole means either 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 prisoner on parole being searched.

(5) If necessary, a specified 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—

residence of a prisoner on parole means—

(a) a residence at which the prisoner is authorised or required to live in

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accordance with their parole order; or

(b) any other premises in which the prisoner is residing.

78J Seizure

(1) In carrying out a search under section 78I, a specified officer may seize any thing found in the possession or under the control of the prisoner on parole that the specified officer reasonably suspects—

(a) will compromise—

(i) the welfare or safety of a member of the public; or

(ii) the compliance of the prisoner on parole with the parole order; or

(b) relates to behaviour or conduct associated with an increased risk of the prisoner on parole re-offending or breaching the conditions of the parole order.

(2) A specified officer may examine any thing, or operate any electronic equipment, seized under subsection (1) for the purpose of investigating—

(a) whether the prisoner on parole has complied with the parole order; or

(b) whether the prisoner on parole has re-offended or breached the conditions of the parole order.

(3) Without limiting subsection (1), a specified officer may seize or take a sample of any thing belonging to, or found in the possession or under the control of, the

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prisoner on parole if the specified 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 the parole 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 the parole order).

(4) If necessary, a specified officer may use reasonable force to carry out a seizure under this section.

(5) The Commissioner must deal with any thing (other than a drug of dependence) seized under this Division in accordance with the regulations.

78K Warning that search or seizure is to occur and that reasonable force may be used

Immediately before a search of a prisoner on parole is carried out by a specified officer under section 78I or a thing in the possession or under the control of the prisoner is seized by a specified officer under section 78J, the specified officer must inform the prisoner 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.

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78L Report of use of force or application of restraint

(1) This section applies if a specified officer—

(a) in accordance with section 78H, 78I or 78J, uses force against a prisoner on parole; or

(b) in accordance with section 78H, applies an instrument of restraint to a prisoner on parole.

(2) The specified officer must report, as soon as possible, the use of force or the application of the instrument of restraint (as the case may be) to the Commissioner.

(3) The Commissioner must report, as soon as possible, the use of force or the application of an instrument of restraint by the specified officer to the Secretary.

78M Register of seized things

(1) The Commissioner must establish and maintain a register of things seized under this Division.

(2) The register must contain for each thing seized—

(a) a description of the thing;

(b) the name of the prisoner on parole from whom the thing was seized;

(c) the name and address of the owner of the thing (if known);

(d) the time and place of the seizure;

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(e) the name and signature of the specified officer who seized the thing.

(3) A specified officer as soon as practicable after seizing a thing under section 78J must inform the Commissioner of the seizure and record the details of the seizure in the register.

78N Things seized must be photographed or otherwise recorded

All things seized under this Division by a specified officer must be photographed or otherwise recorded.

78O Specified officer must provide receipt for seized thing

(1) As soon as practicable after seizing a thing under section 78J, a specified officer must—

(a) give the prisoner on parole from whom the thing was seized a receipt for the thing; or

(b) if the prisoner on parole from whom the thing was seized refuses to accept the receipt, leave the receipt in a conspicuous place at the residence being searched.

(2) A receipt under subsection (1) must—

(a) contain the prescribed information; and

(b) be signed in accordance with the regulations.

78P Prisoner on parole to submit to testing

(1) At the direction of a specified officer, a prisoner on parole must submit to breath testing, urinalysis or other test procedures

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approved by the Secretary for detecting alcohol or drug use.

(2) A specified officer may give a direction under this section if the specified officer has reasonable grounds to suspect that the prisoner on parole has breached a condition of the parole order by consuming alcohol or drugs.

78Q Secretary to approve test procedures

(1) The Secretary may approve test procedures for the purpose of this Division.

(2) The Secretary must publish a notice of the approved test procedures in the Government Gazette.

78R Taking of samples of drug and alcohol

(1) A specified officer may take for analysis a sample of a substance that the officer believes to be a drug of dependence or alcohol that is found in the possession of a prisoner on parole and that was not lawfully in the possession of the prisoner.

(2) The specified officer who takes a sample of a substance that the officer believes to be a drug of dependence or alcohol must as soon as possible advise the Commissioner of that fact.

78S Reports, returns and records

A specified officer must, when required by the Commissioner, make reports and returns and keep records and give those reports, returns and records to the Commissioner or to any person or body stated in the requirement.

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78T No liability

A specified officer is not liable for injury or damage caused by—

(a) the use of force in accordance with section 78H, 78I or 78J; or

(b) the application of an instrument of restraint in accordance with section 78H.".

9 Amendment of sections 79J and 79K

In sections 79J(1) and 79K(1) of the Corrections Act 1986 omit "60M(10), 60R(2)(b) or".

10 Powers and duties of officers

After section 90(9) of the Corrections Act 1986 insert—

"(10) A Regional Manager or community corrections officer who uses force in accordance with this section is not liable for injury or damage caused by that use of force.".

11 Delegation

In section 102 of the Corrections Act 1986, after "this Act" insert "or any regulations made under this Act".

12 Officers may use force to enforce directions in certain circumstances

After section 104I(3) of the Corrections Act 1986 insert—

"(4) A Regional Manager, a community corrections officer or a specified officer who

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uses force in accordance with this section is not liable for injury or damage caused by that use of force.

(5) A specified officer who applies an instrument of restraint in accordance with this section is not liable for injury or damage caused by that application.".

13 Definitions for Part 9E of the Principal Act

In section 104ZX of the Corrections Act 1986, in the definition of relevant person—

(a) after paragraph (c) insert—

"(ca) the Secretary;";

(b) after paragraph (f) insert—

"(fa) the Secretary to the Department of Health and Human Services;

(fb) an employee of the Department of Health and Human Services;

(fc) a person who provides services or advice on behalf of the Department of Health and Human Services;";

(c) after paragraph (o) insert—

"(oa) the Chief Crown Prosecutor within the meaning of the Public Prosecutions Act 1994;

(ob) a Crown Prosecutor or Associate Crown Prosecutor within the meaning of the Public Prosecutions Act 1994;

(oc) the Solicitor for Public Prosecutions appointed under the Public Prosecutions Act 1994;";

(d) in paragraph (r), for "Prosecutions." substitute "Prosecutions;";

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(e) after paragraph (r) insert—

"(s) the Secretary to the Department of Immigration and Border Protection of the Commonwealth;

(t) an employee of the Department of Immigration and Border Protection of the Commonwealth;

(u) a person who provides services or advice on behalf of the Department of Immigration and Border Protection of the Commonwealth;

(v) the Secretary to the Attorney-General's Department of the Commonwealth;

(w) an employee of the Attorney-General's Department of the Commonwealth;

(x) a person who provides services or advice on behalf of the Attorney-General's Department of the Commonwealth.".

14 Authorisation to use or disclose information

(1) In section 104ZY(2) of the Corrections Act 1986—

(a) after paragraph (g) insert—

"(ga) if the disclosure is to the Secretary in response to a request from the Secretary for information under the Working with Children Act 2005;";

(b) in paragraph (k), after "prisoner" insert "or former prisoner".

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(2) After section 104ZY(2) of the Corrections Act 1986 insert—

"(2A) Subject to subsection (2B), a relevant person may disclose personal or confidential information to a correctional services authority of another State, a Territory or another country if—

(a) the information relates to a person who is or has been an offender or a prisoner; and

(b) the disclosure is reasonably necessary to ensure the proper supervision of, or the assessment of the risks of re-offending by, that person.

(2B) Personal or confidential information must not be disclosed under subsection (2A) to the correctional services authority of another country unless the Secretary—

(a) has assessed that it is appropriate in all the circumstances to do so; and

(b) has authorised in writing the disclosure.

(2C) The Secretary may under subsection (2B) authorise the disclosure of information in relation to—

(a) a specified request for information from another country; or

(b) any request for information from a specified country.".

(3) After section 104ZY(3) of the Corrections Act 1986 insert—

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"(4) In this section—

correctional services authority means a person, body or entity that has functions and responsibilities in another State, a Territory or another country that substantially correspond to the functions and responsibilities of the Secretary, the Adult Parole Board, the Commissioner or any other officer under this Act.".

15 New section 104ZYA inserted

After section 104ZY of the Corrections Act 1986 insert—

"104ZYA Information exchange with other parole decision-making bodies

(1) The Adult Parole Board must notify the Secretary in writing of any information disclosed by the Board to the parole decision-making body of another State or a Territory.

(2) The following persons must notify the Adult Parole Board in writing of any information disclosed by the person to the parole decision-making body of another State or a Territory—

(a) an officer within the meaning of Part 5 or Part 9;

(b) the Secretary;

(c) an employee of the Department.

(3) In this section—

parole decision-making body, of another State or a Territory, means the body that has functions and responsibilities in that State or Territory that

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substantially correspond to the functions and responsibilities of the Adult Parole Board.".

16 New section 108A inserted

After section 108 of the Corrections Act 1986 insert—

"108A Return of prisoner unlawfully released

(1) This section applies if a prisoner who is not legally entitled to be released is released from custody.

(2) The Secretary, by warrant signed by the Secretary, may authorise—

(a) any police officer 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; and

(b) any prison officer or escort officer to arrest the prisoner and return the prisoner to prison.

(3) Whether or not a warrant is issued under subsection (2), the Secretary may authorise the making of an application to a magistrate for a warrant authorising—

(a) any police officer 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; and

(b) any prison officer or escort officer to arrest the prisoner and return the prisoner to prison.

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(4) Subject to subsection (5), an officer authorised by a warrant referred to in subsection (2) or (3) to arrest a prisoner and return the prisoner to prison may detain the prisoner at a police gaol or police station or a hospital or medical facility if—

(a) it is impractical to immediately return the prisoner to prison; or

(b) the prisoner requires urgent medical attention.

(5) For the purposes of subsection (4), an officer may only detain a prisoner at a police gaol or police station or a hospital or medical facility for the minimum time required before the prisoner is able to be returned to prison or for the prisoner to receive the required medical attention (as the case may be).".

17 Repeal of amending Act

This Act is repealed on 1 August 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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Endnotes1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

Endnotes

Corrections Legislation Amendment Act 2016No. 57 of 2016

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† Minister's second reading speech—

Legislative Assembly: 31 August 2016

Legislative Council: 25 October 2016

The long title for the Bill for this Act was "A Bill for an Act to amend the Corrections Act 1986 and for other purposes."