Corrections Amendment Regulations 2019 (Vic)

Corrections Amendment Regulations 2019

S.R. No. 46/2019

TABLE OF PROVISIONS

Regulation  Page

1Objectives

2Authorising provision

3Principal Regulations

4Objectives amended

5New definitions inserted

6New Part 9A inserted

7New Part 12A inserted

8Form 1 of Schedule 2 amended

9Form 2 of Schedule 2 amended

10New Form 22A of Schedule 2 inserted

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Endnotes

STATUTORY RULES 2019

S.R. No. 46/2019

Corrections Act 1986

Corrections Amendment Regulations 2019

The Governor in Council makes the following Regulations:

Dated: 12 June 2019

Responsible Minister:

BEN CARROLL
Minister for Corrections

PIETA TAVROU

Clerk of the Executive Council

1Objectives

The objectives of these Regulations are to amend the Corrections Regulations 2019—

(a)to provide for the management, administration and security of police gaols; and

(b)to provide for the safe custody and welfare of detained persons; and

(c)to provide for the manner of dealing with property seized under Part 9A of the Corrections Act 1986; and

(d)to provide for the establishment and keeping of a victims register; and

(e)to make other minor amendments.

2Authorising provision

These Regulations are made under section 112 of the Corrections Act 1986.

3Principal Regulations

In these Regulations, the Corrections Regulations 2019[1] are called the Principal Regulations.

4Objectives amended

For regulation 1(d) of the Principal Regulations substitute—

"(d)to provide for the management, administration and security of police gaols; and

(e)to provide for the safe custody and welfare of detained persons; and

(f)to provide for the manner of dealing with property seized under Part 9A of the Corrections Act 1986; and

(g)to provide for the establishment and keeping of a victims register; and

(h)to prescribe various forms and procedures authorised by the Corrections Act 1986.".

5New definitions inserted

In regulation 5 of the Principal Regulations insert the following definitions—

"detained person has the same meaning as in section 104A of the Act;

officer in charge has the same meaning as in section 104A of the Act;

registered person means a person included on the victims register under section 30C(1) or (2) of the Act;

registrar means a person assigned to be registrar of the victims register under regulation 133B and includes any person carrying out the functions or powers of the registrar;".

6New Part 9A inserted

After Part 9 of the Principal Regulations insert—

"Part 9A—Police gaols

100APrescribed information and documents of a visitor's identity

(1)For the purposes of section 104AC(4)(a) of the Act, the prescribed information is the person's name, date of birth and residential address.

(2)For the purposes of section 104AC(4)(b) of the Act, the prescribed documents are—

(a)one of the following documents—

(i)a passport;

(ii)a driver licence;

(iii)a document issued by a public statutory authority bearing the name and photograph of the person; or

(b)any 2 of the following documents—

(i)a full birth certificate or extract of birth;

(ii)a certificate of Australian citizenship;

(iii)a marriage certificate;

(iv)a Seniors Card issued by the Government of a State or Territory;

(v)a health care card;

(vi)a pensioner concession card;

(vii)any other card issued by a Commonwealth Government Department that certifies entitlement to Commonwealth health concessions.

100BReceipt of seized articles or substances

(1)A police officer or a police custody officer who seizes an article or substance under Part 9A of the Act (other than under section 104DB(2) of the Act) must provide a receipt to the person from whom it was seized.

(2)A police custody officer who seizes an article or substance under section 104DB(2) of the Act must provide a receipt to the person from whom it was seized if the person from whom the article or substance was seized—

(a)is being supervised at a police gaol; or

(b)is being transported to a police gaol and an officer in charge of a police gaol has made a direction under regulation 100D(2), (3) or (4)(b) or (c) in relation to the article or substance; or

(c)is being transported to, or supervised at, a place other than a police gaol and an officer in charge of a police gaol has made a direction under regulation 100D(2), (3) or (5)(b) in relation to the article or substance.

(3)A receipt must contain—

(a)a description of the seized article or substance, including the quantity (if known); and

(b)the name of the person from whom the article or substance was seized (if known); and

(c)any information about the ownership of the article or substance, which is available at the time of providing the receipt, including—

(i)information that another person is or may be the owner of the article or substance; and

(ii)the name and address of that other person (if that information is provided by the person from whom the article or substance was seized); and

(d)the time and date of the seizure; and

(e)information about how the article or substance is intended to be dealt with (if known); and

(f)the name and signature of the police officer or police custody officer who seized the article or substance.

(4)A police officer or police custody officer who is required to provide a receipt under this regulation must do so as soon as reasonably practicable.

100CRegister of seized articles and substances

(1)The officer in charge of a police gaol must establish and maintain a register of all articles and substances seized—

(a)in the police gaol by a police officer or a police custody officer under Part 9A of the Act (other than under section 104DB(2) of the Act); or

(b)by a police custody officer under section 104DB(2) of the Act from a person who—

(i)is being supervised at the police gaol; or

(ii)is being transported to a police gaol and the officer in charge has made a direction under regulation 100D(2), (3) or (4)(b) or (c) in relation to the article or substance; or

(iii)is being transported to, or supervised at, a place other than a police gaol and the officer in charge has made a direction under regulation 100D(2), (3) or (5)(b) in relation to the article or substance.

(2)The officer in charge of a police gaol must ensure that, in respect of each article or substance referred to in subregulation (1), an entry is made in the register that contains—

(a)the information required in regulation 100B(3)(a) to (e); and

(b)the name of the police officer or police custody officer who seized the article or substance; and

(c)information about how the article or substance was dealt with under regulation 100D.

100DDealing with seized articles or substances

(1)For the purposes of section 104DE of the Act, an officer in charge of a police gaol must deal with an article or substance seized under Part 9A of the Act in accordance with this regulation.

(2)If the article or substance may be required as evidence of an offence, the officer in charge of a police gaol must direct that the article or substance be retained.

(3)If the article or substance has been forfeited, or may otherwise be disposed of under law, the officer in charge of a police gaol must direct that the article or substance be disposed of in a manner allowed by law.

(4)Subject to subregulation (5), if subregulation (2) or (3) does not apply, an officer in charge of a police gaol must direct that the article or substance be—

(a)returned to the person from whom it was seized; or

(b)returned to the owner of the article or substance if reasonably practicable in the circumstances and the officer in charge forms the reasonable belief that the person from whom the article or substance was seized is not entitled at law to possess it; or

(c)stored as part of the property of the detained person from whom the article or substance was seized.

(5)If subregulation (2) or (3) does not apply and the article or substance was seized by a police custody officer under section 104DB(2) of the Act from a person who is being transported to, or supervised at, a place other than a police gaol, the officer in charge of a police gaol who is informed under section 104DB(3) of the Act must direct that the article or substance be—

(a)returned to the person from whom it was seized; or

(b)returned to the owner of the article or substance if reasonably practicable in the circumstances and the officer in charge forms the reasonable belief that the person from whom the article or substance was seized is not entitled at law to possess it; or

(c)stored at that place as part of the property of the person from whom the article or substance was seized.

100ECommunication with detained persons

(1)A person must not communicate, or attempt to communicate, with a detained person in a way that the person knows, or ought reasonably to know, has not been authorised by the officer in charge of a police gaol.

Penalty:5 penalty units.

(2)Subregulation (1) does not prevent a communication made in—

(a)the carrying out of an official duty; or

(b)the carrying out of a power, function or duty under an Act or subordinate instrument; or

(c)the doing of an act authorised by the Chief Commissioner of Police.

100FExchange of articles to or from detained persons

(1)A person must not give, send or receive anything or attempt to give, send or receive anything to or from a detained person in a way that the person knows, or ought reasonably to know, has not been authorised by the officer in charge of a police gaol.

Penalty:10 penalty units.

(2)Subregulation (1) does not prevent the giving, sending or receiving of anything or an attempt to give, send or receive anything, in—

(a)the carrying out of an official duty; or

(b)the carrying out of a power, function or duty under an Act or subordinate instrument; or

(c)the doing of an act authorised by the Chief Commissioner of Police.

100GOffences by detained persons

(1)A detained person must not act, or threaten to act, in a way—

(a)that is prejudicial to, or that threatens, the security, good order or management of the police gaol; or

(b)that is prejudicial to, or that threatens, the safety of any person in the police gaol or of any person who is involved in the administration of, or in providing a service to, or in relation to, the police gaol; or

(c)that might cause damage to the police gaol or the loss of, or damage to, any property at the police gaol.

Penalty:10 penalty units.

(2)A detained person must not act in a disruptive, abusive or indecent manner, whether by language or conduct to any person in the police gaol or to any person who is involved in the administration of, or in providing a service to, or in relation to, the police gaol.

Penalty:10 penalty units.

(3)A detained person must not exchange, give or receive or attempt to exchange, give or receive, without lawful authority, any article or substance that is prejudicial to, or threatens the security, good order or management of the police gaol.

Penalty:10 penalty units.

(4)A detained person must not knowingly wear or possess any thing that jeopardises, or that is likely to jeopardise, the security or good order of the police gaol or the safety of any person in the police gaol, other than any thing which the detained person is authorised by the officer in charge of a police gaol to wear or possess.

Penalty:10 penalty units.

(5)A detained person who is authorised to take or use a drug of dependence must not take or use or attempt to take or use that drug otherwise than in accordance with the authorisation.

Penalty:10 penalty units.

100HInvestigation by officer in charge of a police gaol

(1)If the officer in charge of a police gaol suspects that a detained person has contravened Part 9A of the Act or this Part, the officer in charge must investigate the matter.

(2)In investigating a matter under subregulation (1), the officer in charge of a police gaol must give the person who is alleged to have contravened Part 9A of the Act or this Part an opportunity to be heard in relation to the matter.

(3)If, after investigating a matter, the officer in charge of a police gaol is satisfied that the person has contravened Part 9A of the Act or this Part, the officer in charge may, having regard to the seriousness of the contravention—

(a)take no further action; or

(b)reprimand the person; or

(c)refer the matter to be dealt with under the criminal law.".

7New Part 12A inserted

After Part 12 of the Principal Regulations insert—

"Part 12A—Victims register

133AVictims register

(1)The victims register is established for the purposes of recording persons who are entitled—

(a)to be given information under section 30A of the Act; and

(b)to make victim submissions.

(2)The victims register must be kept in a form determined by the registrar.

133BThe registrar

The Secretary may assign a person employed under Part 3 of the Public Administration Act 2004 to be registrar of the victims register.

133CFunctions and powers of the registrar

(1)The registrar has the following functions—

(a)to administer and maintain the victims register;

(b)to carry out any other functions conferred on the registrar by this Part.

(2)The registrar has such powers as are necessary for the carrying out of the functions of the registrar under this Part.

133DManner of application

(1)An application for inclusion on the victims register must be—

(a)made in a form approved by the Secretary; and

(b)accompanied by—

(i)documents that establish the identity of the applicant to the satisfaction of the Secretary; and

(ii)any other document that the applicant relies on in support of the application.

(2)The application must contain—

(a)an authorisation by the applicant for the Secretary to obtain information from a law enforcement agency within the meaning of section 3 of the Privacy and Data Protection Act 2014; and

(b)if the applicant is a victim within the meaning of paragraph (d) of the definition of victim in section 30A(1) of the Act, an authorisation by the applicant for the Secretary to obtain from the principal registrar of the Magistrates' Court details of any family violence intervention order made under the Family Violence Protection Act 2008, or any non-local DVO made by a court that is a recognised DVO, against—

(i)the prisoner to whom the application relates; or

(ii)the offender to whom the application relates, who is or was subject to a supervision order, a detention order or an emergency detention order or an application for such an order.

133EContent of application

An application for inclusion on the victims register must state—

(a)the applicant's name and contact details; and

(b)the basis on which the applicant claims to be eligible for inclusion on the victims register; and

(c)details (within the knowledge of the applicant) about the offence to which the application relates and—

(i)the prisoner to whom the application relates; or

(ii)the offender to whom the application relates, who is or was subject to a supervision order, a detention order or an emergency detention order or an application for such an order.

133FAdditional information if nominee is nominated

In addition to the requirements of section 30B(3) of the Act, an application by an applicant who wishes information to be disclosed under section 30A of the Act to a nominee instead of being disclosed directly to the applicant must—

(a)set out the nominee's name and contact details; and

(b)be accompanied by proof of identity of the nominee.

133GPrescribed form of undertaking

For the purposes of section 30B(4) of the Act, the prescribed form of the undertaking is Form 22A of Schedule 2.

133HRemoval from register

(1)The registrar may remove a registered person from the victims register in any of the following circumstances—

(a)at the written request of the registered person;

(b)the registrar is unable to contact the registered person after having made reasonable attempts to contact the registered person using the contact details provided by the registered person;

(c)if the registered person was included on the victims register on the basis of being a victim within the meaning of paragraph (c) of the definition of victim in section 30A(1) of the Act, the person with respect to whom the registered person is a family member—

(i)attains 18 years of age; or

(ii)becomes capable of managing the person's own affairs;

(d)the Secretary informs the registrar that the Secretary believes on reasonable grounds that the registered person has contravened section 30H or 30I of the Act;

(e)the Secretary informs the registrar that the Secretary believes on reasonable grounds that the disclosure of any information to the registered person under section 30A(1A), (2) or (2AA) of the Act may endanger—

(i)the security of a prison; or

(ii)the safe custody and welfare of any prisoner; or

(iii)the safety or welfare of—

(A)the relevant offender; or

(B)any other person;

(f)the registered person dies;

(g)the sentence of the relevant prisoner, including any parole period, has expired;

(h)the supervision order, the detention order or the emergency detention order (as the case may be) of the relevant offender has expired and has not been replaced by another order;

(i)the relevant prisoner has been transferred to serve the remainder of the relevant prisoner's sentence interstate or overseas;

(j)the conviction for the offence in relation to which a registered person is included on the victims register is overturned;

(k)the relevant prisoner is otherwise indefinitely and lawfully released from the legal custody of the Secretary;

(l)the relevant prisoner or the relevant offender dies.

(2)The registrar may remove the details of the nominee of a registered person from the victims register in any of the following circumstances—

(a)the registered person is removed from the victims register;

(b)at the written request of the registered person;

(c)at the written request of the nominee;

(d)the registrar is unable to contact the nominee after having made reasonable attempts to contact the nominee using the contact details supplied by the nominee or the registered person;

(e)the Secretary informs the registrar that the Secretary believes on reasonable grounds that the nominee has contravened section 30H or 30I of the Act;

(f)the Secretary informs the registrar that the Secretary believes on reasonable grounds that the nominee has breached an undertaking under section 30B(3)(c) of the Act;

(g)the Secretary informs the registrar that the Secretary believes on reasonable grounds that, having regard to the matters referred to in section 30D(2) of the Act, it is no longer appropriate for the details of the nominee to be included on the victims register;

(h)the nominee dies.

(3)In this regulation—

relevant offender means the offender who is or was subject to a supervision order, a detention order or an emergency detention order, or an application for a supervision order, a detention order or an emergency detention order, in relation to whom a registered person is included on the victims register;

relevant prisoner means the prisoner in relation to whom a registered person is included on the victims register;

sentence means the sentence of imprisonment for the offence in relation to which the registered person is included on the victims register and any sentence of imprisonment required to be served concurrently or cumulatively with that sentence of imprisonment.".

8Form 1 of Schedule 2 amended

(1)In Form 1 of Schedule 2 to the Principal Regulations, for "I order that [insert name of prisoner]" substitute "I order that [insert name of prisoner, date of birth and JAID (if known)]".

(2)In Form 1 of Schedule 2 to the Principal Regulations, after "is charged" insert "(specify the most serious offence first)".

9Form 2 of Schedule 2 amended

In Form 2 of Schedule 2 to the Principal Regulations, after "insert name" insert "and date of birth".

10New Form 22A of Schedule 2 inserted

After Form 22 of Schedule 2 to the Principal Regulations insert—

"FORM 22A

Regulation 133G

UNDERTAKING OF CONFIDENTIALITY

I, [name of nominee] of [address] have been nominated by [insert name of applicant], subsequently referred to as "the applicant", to be given, on behalf of the applicant, information under section 30A of the Corrections Act 1986 relating to [insert name of prisoner or name of offender who is or was subject to a supervision order, a detention order or an emergency detention order or is or was subject to an application for such an order].

I consent to the nomination and undertake that—

(a)I will not disclose the information disclosed to me under section 30A of the Corrections Act 1986 other than in accordance with the Corrections Act 1986; and

(b)I will treat the information disclosed to me under section 30A of the Corrections Act 1986 in an appropriate manner that respects the confidential nature of the information.

In giving this undertaking I acknowledge that—

(a)if the applicant is included on the victims register, my obligations of confidentiality under the Corrections Act 1986 and this undertaking remain even if my nomination ceases or the applicant is removed from the victims register; and

(b)I *have read/*have had explained to me the content of sections 30H and 30I of the Corrections Act 1986.

Dated this       day of            20     .

[Signature of nominee]

[Signature of witness]

of [name and address]

*Delete if inapplicable".

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Endnotes

[1] Reg. 3: S.R. No. 27/2019.

——

Penalty Units

These Regulations provide for penalties by reference to penalty units within the meaning of section 110 of the Sentencing Act 1991. The amount of the penalty is to be calculated, in accordance with section 7 of the Monetary Units Act 2004, by multiplying the number of penalty units applicable by the value of a penalty unit.

The value of a penalty unit for the financial year commencing 1 July 2018 is $161.19 and for the financial year commencing 1 July 2019 is $165.22.

The amount of the calculated penalty may be rounded to the nearest dollar.

The value of a penalty unit for future financial years is to be fixed by the Treasurer under section 5 of the Monetary Units Act 2004. The value of a penalty unit for a financial year must be published in the Government Gazette and a Victorian newspaper before 1 June in the preceding financial year.