Serious Sex Offenders Act 2013 (NT)

NORTHERN TERRITORY OF AUSTRALIA

SERIOUS SEX OFFENDERS ACT 2013

As in force at 5 July 2021

Table of provisions [if supportFields]><span style='mso-element:field-begin'></span><span style='mso-spacerun:yes'>&#160;</span>TOC \o &#34;1-9&#34; <span style='mso-element: field-separator'></span><![endif] — Preliminary matters1 — Short title2 — Commencement3 — Objects of Act4 — Definitions5 — Application of Criminal CodePart 2 — Continuing detention orders and supervision orders – general mattersDivision 1 — Serious danger to the community6 — Serious danger to the community7 — Standard and onus of proofDivision 2 — Continuing detention orders8 — Nature of continuing detention order9 — Considerations when making, confirming or revoking continuing detention order10 — Duration of continuing detention order11 — Expiry date for interim continuing detention order12 — Detainee cannot be granted bail or paroleDivision 3 — Supervision ordersSubdivision 1 Nature and consideration when making13 — Nature of supervision order14 — Considerations when making, amending or revoking supervision order15 — Further considerations if person is reportable offender16 — Duration of supervision order17 — Expiry date for final supervision orderSubdivision 2 Requirements and directions18 — Compulsory requirements19 — Optional requirements20 — Directions by probation and parole officers21 — Considerations when giving directionsPart 3 — Making continuing detention orders or supervision orders22 — Meaning of 23 — Application for continuing detention order or supervision order24 — Setting date for preliminary hearing25 — Preliminary hearing to determine if evidence of serious danger to the community26 — Victim submissions27 — Supervision report28 — Suspension of parole order29 — Qualifying offender cannot be granted parole30 — Interim continuing detention order or interim supervision order31 — Court may make final continuing detention order or final supervision order32 — Onus of proofPart 4 — Supervision orders – extension and amendmentDivision 1 — Extension of final supervision orders33 — Application to extend final supervision order34 — Victim submissions35 — Supervision report36 — Court may make medical assessment order37 — Interim extension of supervision order38 — Court may extend supervision order39 — Onus of proofDivision 2 — Other amendments of supervision orders40 — Application to amend supervision order41 — Victim submissions42 — Supervision reports43 — Court may make medical assessment order44 — Court may amend supervision order45 — Onus of proofPart 5 — Supervision orders – compliance and enforcementDivision 1 — Offence46 — Offence to contravene supervision order46A — Application of section 123 Division 2 — Contravention of supervision order47 — Application of Division48 — Officer may apply for warrant or summons49 — Warrant or summons to appear before Supreme Court50 — Warrant may be issued by telephone51 — Arrested supervisee to be brought before Supreme Court52 — Interim continuing detention order at initial hearing of arrested supervisee53 — Release of arrested supervisee on continued supervision54 — Interim continuing detention order if proceeding adjourned55 — Victim submissions56 — Supervision report57 — Court may make medical assessment order58 — Orders on consideration of alleged contravention59 — Court may amend supervision order if continuing detention order not made60 — Onus of proofDivision 3 — General matters about compliance and enforcement61 — Effect of detention62 — Inconsistency between supervision order and similar obligations63 — Commissioner of Correctional Services must ensure proper supervision64 — Powers for supervising superviseesPart 6 — Continuing detention orders – review of final orders65 — Application for review by Attorney‑General66 — Application for review by detainee67 — Setting day for review hearing68 — Victim submissions69 — Supervision report70 — Court may make medical assessment order71 — Orders on review72 — Onus of proofPart 7 — Revocation of orders73 — Application to revoke order by Attorney-General74 — Application to revoke by detainee or supervisee75 — Victim submissions76 — Court may make medical assessment order77 — Court may revoke order78 — Onus of proofPart 8 — Medical assessments and victim submissionsDivision 1 — Medical assessment orders and reports79 — Medical assessment orders80 — Information to be given to medical expert81 — Report to be given to person being assessed82 — Report to be produced to courtDivision 2 — Victim submissions83 — Seeking submissions from victims84 — Content of victim submissions85 — Victim submissions to be produced to court86 — Victim submissions not to be disclosed without consent87 — No inference to be drawn from no victim submissionDivision 3 — Supervision reports88 — Commissioner of Correctional Services to prepare report for Attorney‑General89 — Report to be produced to courtPart 9 — ProcedureDivision 1 — Applications90 — Form and content of applications91 — Respondent may file affidavits in response92 — Content of affidavits93 — DiscontinuanceDivision 2 — General matters94 — Nature of proceedings95 — Standard of proof96 — Duty of Attorney‑General to disclose relevant material97 — Evidence98 — Records as evidence of supervisee's conduct99 — Certain matters may be decided on papers100 — Court may give directions101 — Court must give reasons for final orderPart 10 — Appeals102 — Right of appeal103 — Appeal does not stay decision104 — Nature of appeal105 — Interim orders pending hearing of appeal106 — Decision on appeal107 — Interim orders pending rehearing after appealPart 11 — General matters108 — Name changes109 — Commissioner of Correctional Services to provide information to Attorney‑General110 — Attorney‑General may obtain information from other persons111 — Costs of damage to equipment recoverable by Territory112 — Offence to disclose certain information112A — Authorised disclosures of information112B — Protection from liability113 — RegulationsPart 12 — Transitional matters for Serious Sex Offenders Amendment Act 2021114 — Definitions115 — Application of section 22116 — Application of section 104117 — Supervision orders made before commencementSchedule 1 — Serious sex offencesSchedule 2 — Offences of a sexual natureENDNOTES — NORTHERN TERRITORY OF AUSTRALIA

NORTHERN TERRITORY OF AUSTRALIA

As in force at 5 July 2021

SERIOUS SEX OFFENDERS ACT 2013

An Act to provide for continued detention or supervised release of certain serious sex offenders, and for related purposes

Part 1Preliminary matters 1Short title

This Act may be cited as the Serious Sex Offenders Act 2013.

2Commencement

This Act commences on the day fixed by the Administrator by Gazette notice.

3Objects of Act

• (1)

  The primary object of this Act is to enhance the protection and safety of victims of serious sex offences and the community generally by allowing for the control, by continued detention or supervised release, of offenders who have committed serious sex offences and pose a serious danger to the community.

• (2)

  The secondary object of this Act is to provide for the continuing rehabilitation, care and treatment of those offenders.

4Definitions

In this Act:

alleged contravention, see section 48(1).

approved monitoring device, see section 164 of the Correctional Services Act 2014.

business day means a day other than a Saturday, Sunday or public holiday.

continuing detention order, see section 8(1).

detainee means a person subject to a continuing detention order.

Director of the CVSU means the Director of the CVSU appointed under section 6 of the Victims of Crime Rights and Services Act 2006.

final continuing detention order, see section 8(2)(a).

final supervision order, see section 13(2)(a).

health practitioner means a person registered under the Health Practitioner Regulation National Law to practise in a health profession (other than as a student).

in custody means:

• (a)

  in the lawful custody of the Commissioner of Correctional Services (as defined in section 4 of the Correctional Services Act 2014); or

• (b)

  in lawful custody within the meaning of section 84(1) of the Mental Health and Related Services Act 1998.

interim continuing detention order, see section 8(2)(b).

interim supervision order, see section 13(2)(b).

medical assessment order, see section 79(1).

medical expert means a health practitioner registered to practise:

• (a)

  in the medical profession in the recognised specialty of psychiatry; or

• (b)

  in a health profession prescribed by regulation.

medical report, see section 79(2)(b)(i).

offence of a sexual nature means:

• (a)

  a serious sex offence; or

• (b)

  any of the following:

  • (i)

    an offence against a provision listed in Schedule 2, subject to any qualification specified opposite the provision;

  • (ii)

    an offence against a provision that was listed in Schedule 2 at the time the offence was committed;

  • (iii)

    an offence substantially corresponding to an offence mentioned in subparagraph (i) or (ii) against a law of another jurisdiction (including a jurisdiction outside Australia);

  • (iv)

    an offence of attempting, or of conspiracy or incitement to commit, an offence mentioned in subparagraph (i), (ii) or (iii).

offender, for Part 8, Division 2, see section 83(1)(a).

original decision, see section 102(1).

parole order, see section 3(1) of the Parole Act 1971.

probation and parole officer, see section 4 of the Correctional Services Act 2014.

qualifying offender, see section 22(1).

registered person, for Part 8, Division 2, see section 83(1)(c).

requirement, for a supervision order, means a requirement included in the order under section 18 or 19.

serious danger to the community, see section 6(1).

serious sex offence means any of the following:

• (a)

  an offence against a provision listed in Schedule 1, subject to any qualification specified opposite the provision;

• (b)

  an offence against a provision that was listed in Schedule 1 at the time the offence was committed;

• (c)

  an offence substantially corresponding to an offence mentioned in paragraph (a) or (b) against:

  • (i)

    a law that has been repealed; or

  • (ii)

    a law of another jurisdiction (including a jurisdiction outside Australia);

• (d)

  an offence of attempting, or of conspiracy or incitement to commit, an offence mentioned in paragraph (a), (b) or (c).

supervisee means a person subject to a supervision order.

supervision order, see section 13(1).

Victims Register means the register as defined in section 4 of the Victims of Crime Rights and Services Act 2006.

victim submission, see section 84.

Note for section 4

The Interpretation Act 1978 contains definitions and other provisions that may be relevant to this Act.

5Application of Criminal Code

Part IIAA of the Criminal Code applies to an offence against this Act.

Note for section 5

Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof. It also defines, or elaborates on, certain concepts commonly used in the creation of offences.

Part 2Continuing detention orders and supervision orders – general mattersDivision 1Serious danger to the community 6Serious danger to the community

• (1)

  A person is a serious danger to the community if there is an unacceptable risk that he or she will commit a serious sex offence unless he or she is in custody or subject to a supervision order.

• (2)

  In deciding whether a person is a serious danger to the community, a court must have regard to the following:

  • (a)

    the likelihood of the person committing another serious sex offence;

  • (b)

    the impact of serious sex offences committed, or likely to be committed, by the person on:

    • (i)

      victims of those offences and the victims’ families; and

    • (ii)

      members of the community generally;

  • (c)

    the need to protect people from those impacts.

  7Standard and onus of proof
• (1)

  A court must not decide that a person is a serious danger to the community unless it is satisfied, to a high degree of probability, that there is acceptable and cogent evidence of sufficient weight to justify the decision.

• (2)

  The Attorney‑General has the onus of satisfying the court that the person is a serious danger to the community.

Division 2Continuing detention orders 8Nature of continuing detention order

• (1)

  A continuing detention order is an order that the person subject to the order (the detainee) be detained in custody.

• (2)

  A continuing detention order may be:

  • (a)

    a final continuing detention order– being a continuing detention order, made on the determination of a proceeding, under which the detainee is to be detained indefinitely; or

  • (b)

    an interim continuing detention order– being a continuing detention order, made on an interim basis while a proceeding is before a court, under which the detainee is to be detained pending determination of the proceeding.

• (3)

  A continuing detention order has effect as a warrant committing the detainee into custody in accordance with the terms of the order.

• (4)

  If the detainee is not in custody when a continuing detention order comes into force, the order also has effect as a warrant for his or her arrest.

  Note for section 8

  A final continuing detention order may be made under section 31(1) or 58(1)(b)(ii). An interim continuing detention order may be made under section 30(2), 52(a), 54(3), 58(1)(b)(i), 105(2) or 107(2).

9Considerations when making, confirming or revoking continuing detention order

• (1)

  In deciding whether to make, confirm or revoke a continuing detention order in relation to a person, a court must have regard to the following:

  • (a)

    as the paramount consideration – the need to protect:

    • (i)

      victims of serious sex offences committed, or likely to be committed, by the person; and

    • (ii)

      the victims’ families; and

    • (iii)

      members of the community generally;

  • (b)

    as a secondary consideration – the desirability of providing rehabilitation, care and treatment for the person.

• (2)

  In considering the need for protection mentioned in subsection (1)(a), the court must have regard to the following:

  • (a)

    the likelihood of the person committing another serious sex offence;

  • (b)

    whether adequate protection could reasonably be provided by making a supervision order in relation to the person.

  10Duration
• (1)

  A continuing detention order comes into force:

  • (a)

    if the detainee is a qualifying offender when the order is made – when he or she ceases to be a qualifying offender; or

  • (b)

    otherwise – at the time the order is made.

  Note for subsection (1)(a)

  If the detainee is a qualifying offender who is subject to a parole order, the Supreme Court may suspend or revoke the parole order under section 28(2) or 31(2) so that the detainee serves out his or her sentence in custody before the continuing detention order comes into force.

• (2)

  A final continuing detention order remains in force until it is revoked.

• (3)

  An interim continuing detention order remains in force until the first of the following occurs:

  • (a)

    the order is revoked;

  • (b)

    the proceeding during which it was made is finally determined;

  • (c)

    the order expires.

  11Expiry date for interim continuing detention order
• (1)

  A court making an interim continuing detention order must state in the order the date on which it will expire.

• (2)

  A court may, on application by the Attorney‑General, amend an interim continuing detention order to extend the duration of the order.

• (3)

  However, the total period for which a detainee may be subject to an interim continuing detention order pending determination of a particular proceeding cannot exceed 6 months unless the court is satisfied there are exceptional circumstances.

12Detainee cannot be granted bail or parole

• (1)

  A detainee cannot be granted bail under the Bail Act 1982.

• (2)

  A parole order cannot be made under the Parole Act 1971 in relation to a detainee.

Division 3Supervision ordersSubdivision 1Nature and consideration when making13Nature of supervision order

• (1)

  A supervision order is an order that the person subject to the order (the supervisee) must comply with the requirements included in the order under sections 18 and 19.

• (2)

  A supervision order may be:

  • (a)

    a final supervision order– being a supervision order, made on the determination of a proceeding, under which the supervisee is to be supervised for a stated period of at least 5 years; or

  • (b)

    an interim supervision order– being a supervision order, made on an interim basis while a proceeding is before a court, under which the supervisee is to be supervised pending determination of the proceeding.

• (3)

  If the duration of a final supervision order is extended on an interim basis under section 37, it becomes an interim supervision order, but if the Supreme Court extends the order under section 38 it again becomes a final supervision order.

  Note for section 13

  A final supervision order may be made under section 31(1) or 71(1)(b). An interim supervision order may be made under section 30(2), 105(2) or 107(2).

14Considerations when making, amending or revoking supervision order

• (1)

  This section applies when a court is deciding:

  • (a)

    whether to make, amend or revoke a supervision order in relation to a person; and

  • (b)

    if a supervision order is to be made or amended:

    • (i)

      the requirements to be included in the order; and

    • (ii)

      the expiry date (if any) for the order.

• (2)

  The court must have regard to the following:

  • (a)

    as the paramount consideration – the need to protect:

    • (i)

      victims of serious sex offences committed, or likely to be committed, by the person; and

    • (ii)

      the victims’ families; and

    • (iii)

      members of the community generally;

  • (b)

    as a secondary consideration – the desirability of providing rehabilitation, care and treatment for the person.

• (3)

  In considering the need for protection mentioned in subsection (2)(a), the court must have regard to the following:

  • (a)

    the likelihood of the person committing another serious sex offence;

  • (b)

    whether it will be reasonably practicable for the Commissioner of Correctional Services to ensure that the person is appropriately managed and supervised as mentioned in section 63;

  • (c)

    whether adequate protection could only reasonably be provided by making a continuing detention order in relation to the person.

  15Further considerations if person is reportable offender
• (1)

  This section applies if the person who is or will be the supervisee is a reportable offender under the Child Protection (Offender Reporting and Registration) Act 2004.

• (2)

  The court must ensure, as far as is reasonably practicable, that the requirements in the supervision order are not inconsistent with the person’s obligations as a reportable offender.

• (3)

  The court may amend the person’s prohibition order under the Child Protection (Offender Reporting and Registration) Act 2004 to avoid an inconsistency.

• (4)

  When making or amending a supervision order, the court must explain to the person the effect of section 62 on his or her obligations under this Act and the Child Protection (Offender Reporting and Registration) Act 2004.

16Duration

• (1)

  A supervision order comes into force:

  • (a)

    if the supervisee is a qualifying offender when the order is made – when he or she ceases to be a qualifying offender; or

  • (b)

    otherwise – at the time the order is made.

  Note for subsection (1)(a)

  If the supervisee is a qualifying offender who is subject to a parole order, the Supreme Court may allow the supervisee to serve out his or her sentence on parole before the supervision order comes into force. Alternatively, the Court may suspend or revoke the parole order under section 28(2) or 31(2) so that the supervisee serves out his or her sentence in custody before the supervision order comes into force.

• (2)

  An interim supervision order remains in force until the first of the following occurs:

  • (a)

    the order is revoked;

  • (b)

    the proceeding during which the order was made or extended is finally determined;

  • (c)

    if an expiry date is stated in the order – the order expires.

• (3)

  A final supervision order remains in force until the first of the following occurs:

  • (a)

    the order is revoked;

  • (b)

    the order expires.

• (4)

  Despite subsection (3)(b), if a supervisee is returned to custody to serve a sentence of imprisonment for an offence, the period for which the order remains in force is extended by the length of time he or she is in custody serving that sentence.

17Expiry date for final supervision order

• (1)

  A court making a final supervision order must state in the order the date on which it will expire.

• (2)

  The expiry date must be at least 5 years after the date on which the order will come into force.

• (3)

  In deciding the expiry date, the court must disregard the fact that the period for which the order is to remain in force might be extended under section 38.

Subdivision 2Requirements and directions18Compulsory requirements

• (1)

  A court making a supervision order must include in it requirements that the supervisee:

  • (a)

    must not commit:

    • (i)

      a serious sex offence; or

    • (ii)

      an offence of a sexual nature; and

  • (b)

    must report to a parole officer as directed by a probation and parole officer; and

  • (c)

    must receive visits and accept communications from a probation and parole officer as directed by a probation and parole officer; and

  • (d)

    must give to a probation and parole officer information about the supervisee’s place of residence and place of employment or education as directed by a probation and parole officer;

  • (e)

    must not leave, or stay out of, the Territory without the permission of a probation and parole officer; and

  • (f)

    must comply with any directions given to the supervisee under section 20, other than directions about matters stated in the order under subsection (2).

• (2)

  The court may state in the order matters about which a probation and parole officer cannot give the supervisee directions.

• (3)

  A court amending a supervision order cannot amend it to remove a requirement mentioned in subsection (1).

19Optional requirements

A court making a supervision order may include in it any other requirement on the supervisee that the court considers appropriate.

Note for section 19

Sections 14 and 15 set out matters to which the court must have regard when deciding the requirements to be included in the order.

20Directions

• (1)

  A probation and parole officer may give to a supervisee any direction the officer believes on reasonable grounds is appropriate.

  Note for subsection (1)

  Section 21 sets out matters to which a probation and parole officer must have regard when deciding whether to give a direction.

• (2)

  A probation and parole officer may give a direction about a matter even if there is a requirement about the matter in the supervisee’s supervision order.

• (3)

  However, a probation and parole officer cannot give a direction:

  • (a)

    about a matter stated in the order under section 18(2); or

  • (b)

    that is directly inconsistent with a requirement in the order.

• (4)

  Without limiting subsection (1), a probation and parole officer may direct a supervisee to do any or all of the following:

  • (a)

    report to a probation and parole officer at specified times and places;

  • (b)

    wear an approved monitoring device;

  • (c)

    give a sample of the supervisee’s voice for use with an approved monitoring device;

  • (d)

    allow the placing or installation in, and retrieval from, a specified place of anything necessary for the effective operation of an approved monitoring device;

  • (e)

    reside at a specified place;

  • (f)

    remain at a specified place for specified periods;

  • (g)

    leave a specified place;

  • (h)

    participate in specified rehabilitation, care or treatment;

  • (i)

    do anything that is reasonably necessary to enable:

    • (i)

      the supervisee to be managed and supervised in the way determined by the Commissioner of Correctional Services under section 63; or

    • (ii)

      the supervisee’s compliance with the order to be monitored and enforced.

• (5)

  Without limiting subsection (1), a probation and parole officer may direct a supervisee not to do any or all of the following:

  • (a)

    reside at a specified place;

  • (b)

    go to a specified place or class of places either at all or during specified periods;

  • (c)

    associate or make contact with:

    • (i)

      victims of serious sex offences committed by the supervisee; or

    • (ii)

      the victims’ families; or

    • (iii)

      any other specified person or class of persons;

  • (d)

    engage in specified employment;

  • (e)

    engage in specified conduct;

  • (f)

    consume alcohol or a drug (other than as prescribed by a health practitioner).

  21Considerations when giving directions
• (1)

  In deciding whether to give a direction to a supervisee, a probation and parole officer must have regard to the following:

  • (a)

    as the paramount consideration – the need to protect:

    • (i)

      victims of serious sex offences committed, or likely to be committed, by the supervisee; and

    • (ii)

      the victims’ families; and

    • (iii)

      members of the community generally;

  • (b)

    as a secondary consideration – the desirability of providing rehabilitation, care and treatment for the supervisee.

• (2)

  In considering the need for protection mentioned in subsection (1)(a), the probation and parole officer must have regard to the following:

  • (a)

    the need to ensure that the supervisee is managed and supervised in the way determined by the Commissioner of Correctional Services under section 63;

  • (b)

    the need to ensure that the supervisee’s compliance with his or her supervision order is monitored and enforced.

  Part 3Making continuing detention orders or supervision orders    

22Meaning of

• (1)

  A person is a qualifying offender if:

  • (a)

    he or she has been convicted of a serious sex offence; and

  • (b)

    either:

    • (i)

      he or she is under sentence of imprisonment for that offence; or

    • (ii)

      subsection (4) applies to him or her.

• (2)

  A person sentenced to imprisonment for an offence is under sentence of imprisonment if he or she:

  • (a)

    is in custody serving the sentence; or

  • (b)

    is subject to one of the following orders in relation to the offence:

    • (i)

      an order suspending the sentence under section 40 of the Sentencing Act 1995;

    • (ii)

      a home detention order under section 44 of the Sentencing Act 1995;

    • (iii)

      a community custody order under section 48B of the Sentencing Act 1995; or

  • (c)

    has been released from custody on parole but is taken, under section 14(1) of the Parole Act 1971, to be still under sentence of imprisonment for the offence.

  Note for subsection (2)(c)

  Under section 14(1) of the Parole Act 1971, a person released on parole is taken to still be under sentence of imprisonment until the day on which the term of imprisonment to which he or she was sentenced expires.

• (3)

  For subsection (1)(b)(i), it is immaterial whether the person is, at the same time, under sentence of imprisonment for another offence.

• (4)

  For subsection (1)(b)(ii), this subsection applies to a person if:

  • (a)

    he or she has served his or her sentence for the serious sex offence; and

  • (b)

    he or she is:

    • (i)

      under sentence of imprisonment for another offence; or

    • (ii)

      is in custody for any other reason, other than under a continuing detention order; and

  • (c)

    the person has not, at any time since commencing to serve the sentence mentioned in paragraph (a), ceased to be:

    • (i)

      under sentence of imprisonment for an offence; or

    • (ii)

      in custody for any other reason, other than under a continuing detention order.

• (5)

  It is immaterial when the serious sex offence was committed or when the person was charged with or convicted of the offence.

• (6)

  In this section, for a person who is under 18 years of age:

  imprisonment includes detention within the meaning of the Youth Justice Act 2005.

  in custody includes in detention in a detention centre as defined in section 5(1) of the Youth Justice Act 2005.

  Note for subsection (6)

  Although a person who is under 18 years of age may be a qualifying offender, a final continuing detention order or final supervision order cannot come into force before the person turns 18 (see sections 10(1) and 23(2)(b)).

23Application for continuing detention order or supervision order

• (1)

  The Attorney‑General may apply to the Supreme Court for a final continuing detention order or final supervision order in relation to a qualifying offender.

• (2)

  An application cannot be made unless the offender:

  • (a)

    is due to cease to be a qualifying offender within 12 months; and

  • (b)

    will be over 18 years of age when he or she ceases to be a qualifying offender.

  24Setting date for preliminary hearing
• (1)

  If an application is made under section 23, the Registrar of the Supreme Court must set a date for a preliminary hearing.

• (2)

  The date set must be not more than 28 business days after the application is made.

25Preliminary hearing

• (1)

  At the preliminary hearing the Supreme Court must decide whether the matters alleged in the application would, if proved, satisfy the Court that the qualifying offender is a serious danger to the community.

• (2)

  If the Court decides that it would be satisfied, it must:

  • (a)

    set a date for the hearing of the application; and

  • (b)

    make a medical assessment order in relation to the offender naming 2 medical experts.

• (3)

  If the Court decides that it would not be satisfied, it must dismiss the application.

26Victim submissions

If the Supreme Court sets a hearing date under section 25(2)(a):

• (a)

  the Attorney-General must notify the Director of the CVSU of the date; and

• (b)

  the Director of the CVSU must then seek victim submissions about the offender under section 83.

27Supervision report

If the Supreme Court sets a hearing date under section 25(2)(a):

• (a)

  the Attorney-General must notify the Commissioner of Correctional Services of the date; and

• (b)

  the Commissioner of Correctional Services must then prepare a supervision report about the offender under section 88.

28Suspension of parole order

• (1)

  This section applies if:

  • (a)

    the Supreme Court has set a hearing date under section 25(2)(a); and

  • (b)

    the qualifying offender is subject to a parole order.

• (2)

  The Court may suspend the parole order pending determination of the application made under section 23.

• (3)

  A suspension remains in force until the application is finally determined or the suspension is revoked.

• (4)

  While a parole order is suspended it is of no effect.

29Qualifying offender cannot be granted parole

• (1)

  This section applies if:

  • (a)

    the Supreme Court has set a hearing date under section 25(2)(a); and

  • (b)

    the application made under section 23 has not been finally determined.

• (2)

  A parole order cannot be made under the Parole Act 1971 in relation to the qualifying offender.

30Interim continuing detention order or interim supervision order

• (1)

  This section applies if:

  • (a)

    the Supreme Court has set a hearing date under section 25(2)(a); and

  • (b)

    the application made under section 23 has not been finally determined.

• (2)

  The Court may make an interim continuing detention order or interim supervision order in relation to the qualifying offender pending determination of the application.

31Court may make final continuing detention order or final supervision order

• (1)

  On hearing an application made under section 23, the Supreme Court may make a final continuing detention order or final supervision order in relation to the qualifying offender if satisfied that the qualifying offender is a serious danger to the community.

• (2)

  If the Court makes a continuing detention order, it may state in the order a review period for section 65.

• (3)

  If the Court makes an order in relation to a person who is subject to a parole order, the Court may revoke the parole order.

32Onus of proof

The Attorney‑General has the onus of satisfying the Supreme Court that it is appropriate to make the final continuing detention order or final supervision order.

Part 4Supervision orders – extension and amendmentDivision 1Extension of final supervision orders 33Application to extend final supervision order

• (1)

  The Attorney‑General may apply to the Supreme Court to amend a final supervision order to extend the duration of the order.

• (2)

  The application cannot be made unless the order is due to expire in less than 6 months.

• (3)

  The application may be combined with an application made under section 40 to make other amendments to the order.

34Victim submissions

If an application is made under section 33:

• (a)

  the Attorney-General must notify the Director of the CVSU that the application has been made; and

• (b)

  the Director of the CVSU must then seek victim submissions about the supervisee under section 83.

35Supervision report

If an application is made under section 33:

• (a)

  the Attorney-General must notify the Commissioner of Correctional Services that the application has been made; and

• (b)

  the Commissioner of Correctional Services must then prepare a supervision report about the supervisee under section 88.

36Court may make medical assessment order

• (1)

  This section applies if an application has been made under section 33 but has not been finally determined.

• (2)

  The Supreme Court may make a medical assessment order in relation to the supervisee.

• (3)

  The Court may do so on application or on its own initiative.

37Interim extension of supervision order

• (1)

  This section applies if an application has been made under section 33 but has not been finally determined.

• (2)

  The Supreme Court may amend the supervision order to extend the duration of the order on an interim basis pending determination of the application.

38Court may extend supervision order

On hearing an application made under section 33, the Supreme Court may amend the supervision order to extend the duration of the order if satisfied that the supervisee is still a serious danger to the community.

39Onus of proof

The Attorney‑General has the onus of satisfying the Supreme Court that it is appropriate to extend the duration of a supervision order.

Division 2Other amendments of supervision orders 40Application to amend supervision order

• (1)

  The Attorney‑General or a supervisee may apply to the Supreme Court to amend a supervision order.

• (2)

  However, an application cannot be made under this section to extend the duration of a final supervision order.

• (3)

  An application may be combined with an application made under section 33 to extend the duration of the order.

41Victim submissions

If an application is made under section 40:

• (a)

  the Attorney-General must notify the Director of the CVSU that the application has been made; and

• (b)

  the Director of the CVSU must then seek victim submissions about the supervisee under section 83.

42Supervision reports

If an application is made under section 40:

• (a)

  the Attorney-General must notify the Commissioner of Correctional Services that the application has been made; and

• (b)

  the Commissioner of Correctional Services must then prepare a supervision report about the supervisee under section 88.

43Court may make medical assessment order

• (1)

  This section applies if an application has been made under section 40 but has not been finally determined.

• (2)

  The Supreme Court may make a medical assessment order in relation to the supervisee.

• (3)

  The Court may do so on application or on its own initiative.

44Court may amend supervision order

• (1)

  On hearing an application made under section 40, the Supreme Court may amend the supervision order if satisfied it would be appropriate to do so.

• (2)

  However, the Court cannot amend the order to reduce the duration of the order to a period of less than 5 years from the date it came into force.

45Onus of proof

The applicant has the onus of satisfying the Supreme Court that it is appropriate to amend a supervision order.

Part 5Supervision orders – compliance and enforcementDivision 1Offence 46Offence to contravene supervision order

• (1)

  A supervisee must not engage in conduct that results in a contravention of a requirement of his or her supervision order.

  Maximum penalty:          200 penalty units or imprisonment for 2 years.

• (2)

  It is a defence to a prosecution for an offence against subsection (1) if the defendant establishes a reasonable excuse.

46AApplication of section 123

To avoid doubt, section 123 of the Police Administration Act 1978 applies in relation to an offence under section 46.

Division 2Contravention of supervision order 47Application of Division

This Division applies in relation to an alleged contravention whether or not the supervisee is charged with, or convicted of, an offence under section 46 in relation to the contravention.

48Officer may apply for warrant

• (1)

  If a police officer or probation and parole officer suspects on reasonable grounds that a supervisee has contravened, is contravening or is likely to contravene, a requirement of his or her supervision order (the alleged contravention), the officer may apply to a Supreme Court Judge for a warrant or summons under section 49.

• (2)

  An application for a warrant must be made by information on oath or by telephone under section 50.

• (3)

  An application for a summons must be made in writing.

49Warrant

• (1)

  If satisfied there are reasonable grounds for suspecting the alleged contravention has occurred, is occurring or is likely to occur, the Supreme Court Judge must issue:

  • (a)

    a warrant for the supervisee to be arrested and brought before the Supreme Court for the Court to consider the alleged contravention; or

  • (b)

    a summons for the supervisee to attend before the Supreme Court for the Court to consider the alleged contravention.

• (2)

  However, on an application for a warrant the Supreme Court Judge must not issue a summons unless:

  • (a)

    the applicant consents; or

  • (b)

    the Supreme Court Judge is satisfied there are exceptional circumstances.

• (3)

  The warrant or summons must state the alleged contravention, but may do so in general terms.

• (4)

  A copy of the warrant or summons must be given to the Attorney‑General within 24 hours after it is issued by:

  • (a)

    if the applicant is a police officer – the Commissioner of Police; or

  • (b)

    if the applicant is a probation and parole officer – the Commissioner of Correctional Services.

• (5)

  However, a failure to comply with subsection (4) does not affect the validity of the warrant or summons or any order made under this Division.

50Warrant may be issued by telephone

Section 122 of the Police Administration Act 1978 applies in relation to a warrant under section 49 as if:

• (a)

  the warrant were being sought under that Act; and

• (b)

  a reference in section 122 of that Act to a justice of the peace were a reference to a Supreme Court Judge; and

• (c)

  if the applicant is not a police officer – the applicant were a police officer.

51Arrested supervisee to be brought before Supreme Court

• (1)

  This section applies if a supervisee is arrested under a warrant issued under section 49.

• (2)

  The Attorney‑General must ensure that, as soon as practicable after the supervisee is arrested, he or she is brought before the Supreme Court for the Court to consider the alleged contravention.

• (3)

  The arrested supervisee cannot be granted bail under the Bail Act 1982.

52Interim continuing detention order

When a supervisee arrested under a warrant issued under section 49 first appears before the Supreme Court, the Court must do one of the following:

• (a)

  make an interim continuing detention order in relation to the supervisee pending the Court’s consideration of the alleged contravention under section 58;

• (b)

  make an order under section 53(3).

53Release of arrested supervisee on continued supervision

• (1)

  This section applies if:

  • (a)

    a supervisee arrested under a warrant issued under section 49 has been brought before the Supreme Court (whether or not the Court has made an order under section 52(a)); and

  • (b)

    the Court has not completed its consideration of the alleged contravention under section 58.

• (2)

  The supervisee may apply to the Court to be released pending the Court’s consideration of the alleged contravention.

• (3)

  The Court may order the release of the supervisee only if satisfied there are exceptional circumstances.

• (4)

  The supervisee has the onus of satisfying the Court that there are exceptional circumstances.

• (5)

  If it orders the release of the supervisee, the Court:

  • (a)

    must revoke any interim continuing detention order made under section 52(a); and

  • (b)

    may amend the supervisee’s supervision order as the Court considers appropriate.

  54Interim continuing detention order if proceeding adjourned
• (1)

  This section applies if:

  • (a)

    a supervisee has appeared before the Supreme Court in accordance with a summons issued under section 49; and

  • (b)

    the Court has not completed its consideration of the alleged contravention under section 58.

• (2)

  This section also applies if:

  • (a)

    an arrested supervisee was released under section 53; and

  • (b)

    the Court has not completed its consideration of the alleged contravention under section 58; and

  • (c)

    the Court is no longer satisfied that there are exceptional circumstances as mentioned in section 53(3).

• (3)

  The Court may make an interim continuing detention order in relation to the supervisee pending completion of the Court’s consideration of the alleged contravention.

55Victim submissions

• (1)

  This section applies if:

  • (a)

    a supervisee is arrested under a warrant issued under section 49; or

  • (b)

    a summons is issued under section 49.

• (2)

  The Attorney-General must notify the Director of the CVSU of the arrest or issuing of the summons.

• (3)

  The Director of the CVSU must then seek victim submissions about the supervisee under section 83.

56Supervision report

• (1)

  This section applies if:

  • (a)

    a supervisee is arrested under a warrant issued under section 49; or

  • (b)

    a summons is issued under section 49.

• (2)

  The Attorney-General must notify the Commissioner of Correctional Services of the arrest or issuing of the summons.

• (3)

  The Commissioner of Correctional Services must then prepare a supervision report about the supervisee under section 88.

57Court may make

• (1)

  This section applies if:

  • (a)

    either:

    • (i)

      a supervisee is arrested under a warrant issued under section 49; or

    • (ii)

      a summons is issued under section 49; and

  • (b)

    the Supreme Court has not completed its consideration of the alleged contravention under section 58.

• (2)

  The Court may make a medical assessment order in relation to the supervisee.

• (3)

  The Court may do so on application or on its own initiative.

58Orders

• (1)

  On considering an alleged contravention, if the Supreme Court is satisfied the supervisee has contravened, is contravening, or is likely to contravene, his or her supervision order, the Court must:

  • (a)

    revoke the supervision order; and

  • (b)

    make:

    • (i)

      if the revoked order was an interim supervision order – an interim continuing detention order pending determination of the proceeding in which the supervision order was made; or

    • (ii)

      if the revoked order was a final supervision order – a final continuing detention order.

• (2)

  However, the Court is not required to make the orders mentioned in subsection (1) if satisfied it would not be appropriate to do so.

59Court may amend supervision order

• (1)

  This section applies if, on considering the alleged contravention, the Supreme Court:

  • (a)

    is not satisfied that the supervisee has contravened, is contravening or is likely to contravene, his or her supervision order; or

  • (b)

    decides under section 58(2) not to make the orders mentioned in section 58(1).

• (2)

  The Court:

  • (a)

    must revoke any interim continuing detention order made under section 52 or 54; and

  • (b)

    may amend the supervision order as it considers appropriate.

  Note for section 59

  If an interim continuing detention order is revoked under subsection (2)(a), the supervisee will be released from custody but will still be subject to his or her supervision order.

60Onus of proof

• (1)

  The Attorney‑General has the onus of satisfying the Supreme Court that the supervisee has contravened, is contravening or is likely to contravene, his or her supervision order.

• (2)

  The supervisee has the onus of satisfying the Court that it would not be appropriate to make the orders mentioned in section 58(1).

Division 3General matters about compliance and enforcement 61Effect of detention

• (1)

  This section applies if:

  • (a)

    a supervisee is in custody; and

  • (b)

    because he or she is in custody, it is not reasonably practicable for the supervisee to comply with his or her supervision order.

• (2)

  The supervisee need not comply with his or her supervision order to the extent that being in custody makes it not reasonably practicable to do so.

62Inconsistency between supervision order and similar obligations

• (1)

  This section applies if:

  • (a)

    a supervisee is any of the following:

    • (i)

      a reportable offender as defined in section 6(1) of the Child Protection (Offender Reporting and Registration) Act 2004;

    • (ii)

      subject to an order under Part 3, 4 or 5 of the Sentencing Act 1995;

    • (iii)

      subject to a domestic violence order under the Domestic and Family Violence Act 2007;

    • (iv)

      under any other Act, subject to an obligation relating to a matter that is the subject of a requirement in his or her supervision order; and

  • (b)

    it is not reasonably practicable for the supervisee to comply with his or her supervision order and his or her obligations under the Act mentioned in paragraph (a) (the other obligations).

• (2)

  The supervisee:

  • (a)

    must comply with his or her supervision order; and

  • (b)

    need not comply with his or her other obligations to the extent that compliance with the supervision order makes it not reasonably practicable to do so.

  63Commissioner of Correctional Services must ensure proper supervision
• (1)

  The Commissioner of Correctional Services must ensure that a supervisee is managed and supervised by probation and parole officers in a way that is appropriate.

• (2)

  In deciding what is appropriate the Commissioner must have regard to the following:

  • (a)

    as the paramount consideration – the need to protect:

    • (i)

      victims of serious sex offences committed, or likely to be committed, by the supervisee; and

    • (ii)

      the victims’ families; and

    • (iii)

      members of the community generally;

  • (b)

    as a secondary consideration – the desirability of providing rehabilitation, care and treatment for the supervisee.

• (3)

  In considering the need for protection mentioned in subsection (2)(a), the Commissioner must have regard to the need to ensure that the supervisee’s compliance with his or her supervision order is monitored and enforced.

64Powers for supervising supervisees

• (1)

  A probation and parole officer may exercise the officer’s powers under section 171 of the Correctional Services Act 2014 as if a supervision order were a monitoring order.

• (1A)

  However, the officer must not:

  • (a)

    exercise a power under section 170(2)(d) or (e) of the Correctional Services Act 2014 unless the supervisee is subject to a monitoring obligation; or

  • (b)

    direct a supervisee under section 171 of the Correctional Services Act 2014 to submit to a prescribed alcohol/drug test unless the supervisee is subject to an alcohol or drug obligation.

• (2)

  In this section:

  alcohol or drug obligation means a requirement in, or direction given under, a supervision order that the supervisee not consume alcohol or a drug.

  monitoring obligation means a requirement in, or direction given under, a supervision order that subjects the supervisee to monitoring using an approved monitoring device.

Part 6Continuing detention orders – review of final orders 65Application for review by Attorney‑General

• (1)

  The Attorney‑General must apply to the Supreme Court for a review of a final continuing detention order:

  • (a)

    if the order has not previously been reviewed – before the expiry of the review period from the date the order came into force; or

  • (b)

    if the order has previously been reviewed – before the expiry of the review period from the date the most recent previous review was concluded.

• (2)

  In this section:

  review period means 2 years or any shorter period of between 1 and 2 years stated in the order.

66Application for review by detainee

• (1)

  A detainee may apply to the Supreme Court for a review of a continuing detention order if:

  • (a)

    the order has been in force for at least 2 years; and

  • (b)

    the Court grants leave for the application to be made.

• (2)

  The Court may grant leave only if satisfied there are exceptional circumstances.

• (3)

  The detainee has the onus of satisfying the Court that there are exceptional circumstances.

67Setting day for review hearing

• (1)

  If an application is made under section 65 or 66, the Registrar of the Supreme Court must set a date for the hearing.

• (2)

  The date set must be as soon as practicable after the application is made.

68Victim submissions

If the Supreme Court sets a hearing date under section 67:

• (a)

  the Attorney-General must notify the Director of the CVSU of the date; and

• (b)

  the Director of the CVSU must then seek victim submissions about the detainee under section 83.

69Supervision report

If the Supreme Court sets a hearing date under section 67:

• (a)

  the Attorney-General must notify the Commissioner of Correctional Services of the date; and

• (b)

  the Commissioner of Correctional Services must then prepare a supervision report about the detainee under section 88.

70Court may make medical assessment order

• (1)

  This section applies if:

  • (a)

    an application has been made under section 65 or 66; and

  • (b)

    the Supreme Court has not made an order under section 71.

• (2)

  The Court may make a medical assessment order in relation to the detainee.

• (3)

  The Court may do so on application or on its own initiative.

71Orders on review

• (1)

  On hearing an application made under section 65 or 66, the Supreme Court must do one of the following:

  • (a)

    revoke the continuing detention order;

  • (b)

    revoke the continuing detention order and make a final supervision order in relation to the detainee;

  • (c)

    confirm the continuing detention order.

• (2)

  The Court must not make an order under subsection (1)(b) or (c) unless satisfied that the detainee is still a serious danger to the community.

• (3)

  If the Court confirms the continuing detention order, it may amend the order to change the review period for section 65.

72Onus of proof

The Attorney‑General has the onus of satisfying the Supreme Court that it is appropriate to confirm the continuing detention order or make a final supervision order.

Part 7Revocation of orders 73Application to revoke order

The Attorney‑General may apply to the Supreme Court to revoke a continuing detention order or supervision order.

74Application to revoke by detainee or supervisee

• (1)

  A detainee or supervisee may apply to the Supreme Court to revoke a continuing detention order or supervision order if the Court grants leave for the application to be made.

• (2)

  The Court may grant leave only if satisfied there are exceptional circumstances.

• (3)

  The detainee or supervisee has the onus of satisfying the Court that there are exceptional circumstances.

75Victim submissions

If an application is made under section 73 or 74:

• (a)

  the Attorney-General must notify the Director of the CVSU that the application has been made; and

• (b)

  the Director of the CVSU must then seek victim submissions about the detainee or supervisee under section 83.

76Court may make medical assessment order

• (1)

  This section applies if an application has been made under section 73 or 74 but has not been finally determined.

• (2)

  The Supreme Court may make a medical assessment order in relation to the detainee or supervisee.

• (3)

  The Court may do so on application or on its own initiative.

77Court may revoke order

On hearing an application made under section 73 or 74, the Supreme Court may revoke the continuing detention order or supervision order if satisfied that the grounds for making the order no longer exist.

78Onus of proof

The applicant has the onus of satisfying the Supreme Court that it is appropriate to revoke a continuing detention order or supervision order.

Part 8Medical assessments and victim submissionsDivision 1Medical assessment orders and reports 79Medical assessment orders

• (1)

  A medical assessment order is an order that the person about whom it is made submit to being examined by each of 1 or 2 medical experts named in the order.

• (2)

  A medical assessment order also has effect:

  • (a)

    to authorise each expert to examine the person; and

  • (b)

    to require each expert to:

    • (i)

      prepare a report about the person (a medical report); and

    • (ii)

      give the report to the Attorney‑General by the date stated in the order.

• (3)

  The expert must prepare the report even if the person does not cooperate with the expert.

• (4)

  The expert must have regard to all information given to him or her under section 80.

• (5)

  A medical report must set out the following:

  • (a)

    the expert’s opinion of the risk of the person committing another serious sex offence if he or she is not detained in custody or subject to a supervision order;

  • (b)

    the expert’s reasons for that opinion;

  • (c)

    the extent to which the person cooperated with the expert.

• (6)

  A medical expert cannot be named in a medical assessment order if he or she is a public sector employee in the Agency administering the Correctional Services Act 2004.

  Note for section 79

  A medical assessment order may be made under section 25(2)(b), 36(2), 43(2), 57(2), 70(2) or 76.

80Information to be given to medical expert

• (1)

  The Commissioner of Correctional Services must give to a medical expert named in a medical assessment order all relevant information (including medical or custodial correctional facility reports) that is in the Commissioner’s possession or to which the Commissioner has, or may be given, access.

• (2)

  On the written request of the Commissioner, a person in possession or control of the information must give the information to the Commissioner.

• (3)

  However, subsections (1) and (2) do not require:

  • (a)

    the Commissioner to give to an expert information that has previously been given to the expert; or

  • (b)

    a person to give to the Commissioner information he or she has previously given to the Commissioner.

• (4)

  If a person fails to give the information to the Commissioner when requested, the Supreme Court may, on application by the Commissioner, order the person to do so.

• (5)

  A person who gives information under this section is not liable, civilly, criminally or under an administrative process, for giving the information.

81Report to be given to person being assessed

The Attorney‑General must give a copy of a medical report to the person to whom it relates before the end of the next business day after the Attorney‑General receives the report.

82Report to be produced to court

If a court makes a medical assessment order:

• (a)

  a resulting medical report is admissible as evidence in relation to a matter mentioned in section 6(2), 9 or 14; and

• (b)

  the Attorney‑General must tender the report in evidence.

Division 2Victim submissions 83Seeking submissions

• (1)

  This section applies if:

  • (a)

    the Director of the CVSU is required under section 26, 34, 41, 55, 68 or 75 to seek victim submissions about a person (the offender); and

  • (b)

    the offender is an offender to whom Part 4 of the Victims of Crime Rights and Services Act 2006 applies; and

  • (c)

    one or more persons are registered in the Victims Register in relation to the offender (each a registered person).

• (2)

  As soon as practicable after the requirement to seek submissions arises, the Director must give each registered person a written notice:

  • (a)

    informing the person:

    • (i)

      for section 26, 34, 41, 68 or 75 – that an application has been made in relation to the offender, and of the nature of the application and the hearing date; or

    • (ii)

      for section 55 – that the offender has been arrested or summonsed and of the date of the hearing under section 58; and

  • (b)

    inviting the person to make a submission about the offender as mentioned in section 84; and

  • (c)

    informing the person of the effect of sections 85 and 86; and

  • (d)

    informing the person that any submission must:

    • (i)

      be in writing; and

    • (ii)

      be given to the Director by the date stated in the notice (the closing date); and

    • (iii)

      if the person wishes to consent to the submission being disclosed to the offender – include a statement consenting to the disclosure.

• (3)

  However, the Director is not required to give notice to a registered person who has previously informed the Director that he or she does not wish to receive notices under this Act about the offender.

• (4)

  As soon as practicable after the closing date, the Director must give to the Attorney‑General:

  • (a)

    a copy of each submission received from a registered person before the closing date; or

  • (b)

    if no submissions are received – notice of that fact.

  84Content of victim submissions
• (1)

  In a victim submission a registered person may set out his or her views about any of the following:

  • (a)

    the impact the offender’s offending has had on the victim or other persons;

  • (b)

    whether the offender is a serious danger to the community;

  • (c)

    whether the offender should be subject to a continuing detention order or supervision order;

  • (d)

    if the offender is to be subject to a supervision order, what the terms of the order should be;

  • (e)

    any other matter prescribed by regulation.

• (2)

  A person who makes a submission may amend or withdraw it.

85Victim submissions to be produced to court

If the Director of the CVSU receives a victim submission under section 83:

• (a)

  the Director must give the submission to the Attorney‑General; and

• (b)

  the submission is admissible as evidence in relation to a matter mentioned in section 6(2), 9 or 14; and

• (c)

  the Attorney‑General must tender the submission in evidence.

86Victim submissions not to be disclosed without consent

• (1)

  This section applies if a person makes a victim submission but has not given written consent for it to be disclosed to the offender.

• (2)

  Neither a court, the Director of the CVSU nor the Attorney‑General may disclose the submission to the offender.

• (3)

  A court:

  • (a)

    may have regard to the submission; and

  • (b)

    in deciding the weight to be given to the statement, may have regard to the absence of consent and the non-disclosure to the offender.

• (4)

  A court may disclose the substance of the statement to the offender, or the offender’s legal representative, but only if satisfied that doing so could not reasonably be expected to lead to the identification of the victim or the registered person.

87No inference to be drawn from no victim submission

• (1)

  The fact that a victim submission has not been received from a particular victim (or a registered person for the victim) does not, of itself, give rise to an inference:

  • (a)

    that the offender’s offending had little or no impact on the victim or registered person; or

  • (b)

    that the victim or registered person has no interest in the outcome of the proceeding.

• (2)

  The fact that no victim submissions have been received does not, of itself, give rise to an inference:

  • (a)

    that no person has suffered harm as a result of the offender’s offending; or

  • (b)

    that the offender is not a serious danger to the community; or

  • (c)

    that the offender should not be subject to a continuing detention order or supervision order.

  Division 3Supervision reports  

88Commissioner of Correctional Services to prepare report for Attorney‑General

• (1)

  This section applies if the Commissioner of Correctional Services is required under section 27, 35, 42, 56 or 69 to prepare a supervision report about a person.

• (2)

  As soon as practicable after the requirement to prepare the report arises, the Commissioner must:

  • (a)

    prepare a written report in accordance with subsection (3); and

  • (b)

    give the report to the Attorney-General.

• (3)

  The report:

  • (a)

    must include the Commissioner’s opinion as to whether, if a supervision order is made in relation to the person or the person’s supervision order is continued in force, it would be reasonably practicable for the Commissioner to ensure that the person is appropriately managed and supervised as required under section 63; and

  • (b)

    may include any requirements that, in the Commissioner’s opinion, ought to be included in the order if it is made or continued in force; and

  • (c)

    must include the grounds for the Commissioner’s opinions under paragraphs (a) and (b).

  89Report to be produced to court

  If a report is required to be prepared under section 88:

  • (a)

    the report is admissible as evidence in relation to a matter mentioned in section 9 or 14; and

  • (b)

    the Attorney‑General must tender the report in evidence.

  Part 9Procedure

Division 1Applications 90Form and content of applications

• (1)

  An application to a court under this Act must:

  • (a)

    state the terms of the order being sought; and

  • (b)

    be accompanied by any affidavits the applicant intends to rely on in relation to the application; and

  • (c)

    subject to this Act, be made in accordance with the Supreme Court Act 1979.

• (2)

  The applicant must serve the application (including any accompanying documents) on the respondent within 7 business days of the application being filed.

91Respondent may file affidavits in response

• (1)

  If the respondent intends to rely on an affidavit in relation to the application, the respondent must:

  • (a)

    file the affidavit with the court; and

  • (b)

    serve a copy of it on the applicant.

• (2)

  The affidavit must be filed and served within the time allowed by the Court or the Registrar of the Supreme Court.

92Content of affidavits

• (1)

  An affidavit must be confined to evidence the person making it could give if giving evidence orally.

• (2)

  However, an affidavit may contain statements based on information and belief if the person states the sources of the information and the grounds for the belief.

93Discontinuance

• (1)

  This section applies if:

  • (a)

    a person has made an application to a court under this Act; and

  • (b)

    the application has not been finally determined.

• (2)

  The applicant may discontinue the application by filing a notice of discontinuance at the court.

• (3)

  The application is taken to have been finally determined when the notice is filed.

Division 2General matters 94Nature of proceedings

• (1)

  All proceedings under this Act (including a proceeding under Part 5, Division 2) are civil proceedings.

• (2)

  An application for a warrant or summons made under section 48 is an ex parte proceeding.

• (3)

  The parties to any other proceeding are:

  • (a)

    in a proceeding under Part 3 – the Attorney‑General and the person in relation to whom the continuing detention order or supervision order is sought; and

  • (b)

    in a proceeding relating to a continuing detention order or supervision order – the Attorney‑General and the detainee or supervisee.

• (4)

  The proceedings are to be conducted in accordance with the law (including the law of evidence) applicable to civil proceedings unless this Act provides otherwise.

• (5)

  This section does not apply in relation to a prosecution for an offence.

95Standard of proof

• (1)

  The standard of proof as to whether a person is a serious danger to the community is as mentioned in section 7(1).

• (2)

  The standard of proof for all other matters under this Act is the balance of probabilities.

• (3)

  This section does not apply in relation to a prosecution for an offence.

96Duty of Attorney‑General to disclose relevant material

• (1)

  In a civil proceeding under this Act, the Attorney‑General has the same duty to disclose relevant material as the prosecution has in a criminal proceeding.

• (2)

  The Attorney‑General must disclose the material as soon as practicable after the proceeding commences.

• (3)

  In this section:

  relevant material means information and things that are relevant to the proceeding and that are in the possession of, or available to, the Attorney‑General or Commissioner of Correctional Services, whether or not intended to be tendered in evidence.

97Evidence

• (1)

  This section applies in relation to a civil proceeding under this Act.

• (2)

  If it is relevant, any of the following is admissible as evidence in relation to a matter mentioned in section 6(2), 9 or 14:

  • (a)

    a medical, psychiatric or psychological report about the affected person;

  • (b)

    evidence of the affected person’s criminal history in the Territory or elsewhere;

  • (c)

    evidence of the extent to which the affected person has complied with any of the following that apply, or have previously applied, to the affected person:

    • (i)

      a supervision order;

    • (ii)

      the Child Protection (Offender Reporting and Registration) Act 2004;

    • (iii)

      an order under Part 3, 4 or 5 of the Sentencing Act 1995;

    • (iv)

      a domestic violence order under the Domestic and Family Violence Act 2007;

    • (v)

      a parole order;

    • (vi)

      conditions imposed on a grant of bail under the Bail Act 1982;

  • (d)

    evidence of whether the affected person has made efforts to address causes of his or her offending behaviour and, if so, the effectiveness of those efforts;

  • (e)

    a transcript of any proceeding against the affected person for a serious sex offence;

  • (f)

    the reasons for decision or sentencing remarks of the sentencing court when the affected person was sentenced for a serious sex offence;

  • (g)

    statistical information as to the likelihood of persons with histories and characteristics similar to those of the affected person committing serious sex offences.

• (3)

  This section does not:

  • (a)

    require a party to a proceeding to tender evidence mentioned in subsection (2); or

  • (b)

    prevent a party to a proceeding from tendering any other evidence.

• (4)

  In this section:

  affected person means:

  • (a)

    in a proceeding under Part 3 – the person in relation to whom the continuing detention order or supervision order is sought; or

  • (b)

    otherwise – the detainee or supervisee.

  Notes for section 97

  • 1

    Sections 82 and 85 require the Attorney‑General to tender in evidence medical reports prepared under medical assessment orders and victim submissions.

  • 2

    In a criminal proceeding for an offence against this Act, the ordinary rules of evidence applicable in criminal proceedings will apply.

  98Records as evidence of supervisee's conduct
• (1)

  This section applies in relation to any civil or criminal proceeding in which a supervisee’s compliance with a supervision order is relevant.

• (2)

  If they are relevant, the following are admissible as evidence of the supervisee’s conduct:

  • (a)

    records generated by or through an approved monitoring device;

  • (b)

    notebooks, diaries or other records kept by a probation and parole officer.

  99Certain matters may be decided on papers
• (1)

  This section applies in relation to the following proceedings:

  • (a)

    a preliminary hearing under section 25;

  • (b)

    an application to extend a final supervision order on an interim basis under section 37;

  • (c)

    an application to amend a supervision order under Part 4, Division 2.

• (2)

  The Supreme Court may determine the matter entirely or partly from a consideration of the documents filed in relation to the matter, without the affected person or witnesses appearing.

• (3)

  The Court may do so without the affected person consenting to, or being heard on, the matter being decided in that way.

• (4)

  In this section:

  affected person means:

  • (a)

    for a preliminary hearing under section 25 – the person in relation to whom the continuing detention order or supervision order is sought; or

  • (b)

    otherwise – the detainee or supervisee.

  100Court may give directions

  In any proceeding under this Act a court may give directions in relation to the conduct of the proceeding on application or on its own initiative.

101Court must give reasons for final order

When making a final continuing detention order or final supervision order a court must give detailed reasons for making the order.

Part 10Appeals 102Right of appeal

• (1)

  The Attorney‑General or a person in relation to whom the Supreme Court makes a decision under this Act (the original decision) may appeal to the Court of Appeal against that decision.

• (2)

  The appeal may be on matter of fact, law or fact and law.

  Note for section 102

  The Rules of Court under the Supreme Court Act 1979 set out the procedure for making an appeal, including the form and content of the notice of appeal and requirements for service.

103Appeal does not stay decision

An appeal against a decision does not stay the operation of the original decision unless the Court of Appeal orders otherwise.

104Nature of appeal

• (1)

  The appeal is to be by way of rehearing and is not an appeal de novo.

• (2)

  The Court of Appeal may receive further evidence as it considers appropriate.

105Interim order

• (1)

  This section applies if an appeal has been made under section 102 but has not been finally determined.

• (2)

  The Court of Appeal may make an interim continuing detention order or interim supervision order in relation to the person the subject of the original decision pending determination of the appeal.

106Decision on appeal

• (1)

  After hearing an appeal, the Court of Appeal must do one of the following:

  • (a)

    confirm the original decision;

  • (b)

    vary the original decision;

  • (c)

    set aside the original decision;

  • (d)

    set aside the original decision and replace it with the Court of Appeal’s own decision;

  • (e)

    set aside the original decision and remit the matter back to the Supreme Court for reconsideration.

• (2)

  If it remits a matter under subsection (1)(e), the Court of Appeal may give directions to the Supreme Court as it considers appropriate.

• (3)

  The Court of Appeal may make any ancillary orders it considers appropriate.

107Interim order

• (1)

  This section applies if the Court of Appeal has remitted a matter to the Supreme Court under section 106(1)(e) but the matter has not been heard by the Supreme Court.

• (2)

  The Court of Appeal may make an interim continuing detention order or interim supervision order in relation to the person the subject of the remitted matter pending the hearing of the matter by the Supreme Court.

Part 11General matters 108Name changes

• (1)

  A person commits an offence if:

  • (a)

    the person applies under a name registration Act to register a change of the name of a detainee or supervisee; and

  • (b)

    the Commissioner of Correctional Services has not given written permission for the application to be made.

  Maximum penalty:          50 penalty units or imprisonment for 6 months.

• (2)

  An offence against subsection (1) is an offence of strict liability.

• (3)

  In deciding whether to give the permission for subsection (1)(b), the Commissioner must have regard to each of the following:

  • (a)

    as the paramount consideration – the need to protect:

    • (i)

      victims of serious sex offences committed, or likely to be committed, by the person; and

    • (ii)

      the victims’ families; and

    • (iii)

      members of the community generally;

  • (b)

    as a secondary consideration – the rehabilitation, care and treatment of the detainee or supervisee.

• (4)

  In considering the need for protection mentioned in subsection (3)(a), the Commissioner must have regard to the following:

  • (a)

    whether the proposed name change could be used to further an unlawful activity or purpose;

  • (b)

    whether the proposed name change could be considered offensive to victims of serious sex offences committed by the detainee or supervisee or the victims’ families.

• (5)

  In this section:

  name registration Act means the Births, Deaths and Marriages Registration Act 1996 or an Act of another jurisdiction that allows a person to register a change of his or her name.

  Note for section 108

  If a change of name is registered under the Births, Deaths and Marriages Registration Act 1996 without the permission of the Commissioner of Correctional Services, the Commissioner may direct the amendment be reversed (see section 27A of the Births, Deaths and Marriages Registration Act 1996).

109Commissioner of Correctional Services to provide information to Attorney‑General

• (1)

  On request by the Attorney‑General, the Commissioner of Correctional Services must give to the Attorney‑General any information in the possession or control of the Commissioner that is reasonably necessary to enable the Attorney‑General to perform the Attorney‑General’s functions under this Act.

• (2)

  A person who gives the requested information to the Attorney‑General is not liable, civilly, criminally or under an administrative process, for giving the information.

110Attorney‑General may obtain information from other persons

• (1)

  On the written request of the Attorney‑General, a person in possession or control of information that relates to the behaviour, or physical or mental condition, of a qualifying offender, supervisee or detainee must give the information to the Attorney‑General.

• (2)

  If a person fails to give the information to the Attorney‑General when requested, the Supreme Court may, on application by the Attorney‑General, order the person to do so.

• (3)

  A person who gives information under this section is not liable, civilly, criminally or under an administrative process, for giving the information.

111Costs of damage to equipment recoverable by Territory

If a supervisee damages an approved monitoring device or an associated device, machine or equipment:

• (a)

  the supervisee is liable to pay the costs of repairing or replacing the device, machine or equipment; and

• (b)

  the costs may be recovered from the supervisee as a debt due to the Territory.

112Offence to disclose certain information

• (1)

  A person commits an offence if:

  • (a)

    the person:

    • (i)

      obtains information in the course of performing a function connected with the administration of this Act or exercising a power under this Act; or

    • (ii)

      is given information under section 112A; and

  • (b)

    the information is confidential and the person is reckless in relation to that circumstance; and

  • (c)

    the person intentionally engages in conduct; and

  • (d)

    the conduct results in the disclosure of the information and the disclosure is not:

    • (i)

      for a purpose connected with the administration of this Act, including a legal proceeding arising out of the operation of this Act; or

    • (ii)

      to a person who is otherwise entitled to the information; or

    • (iii)

      authorised under section 112A; and

  • (e)

    the person is reckless in relation to the result and circumstance referred to in paragraph (d).

  Maximum penalty:          200 penalty units or imprisonment for 2 years.

• (2)

  Strict liability applies to subsection (1)(a).

• (3)

  If the information referred to in subsection (1) relates to a person, it is a defence to a prosecution for an offence against that subsection if the person has consented to the disclosure of the information.

  Note for subsection (3)

  In addition to the circumstances mentioned in this section, a person who discloses information mentioned in this section will not be criminally responsible for an offence if the disclosure is justified or excused by or under a law (see section 43BE of the Criminal Code).

112AAuthorised disclosures of information

• (1)

  A person who obtains confidential information in the course of exercising a power or performing a function connected with the administration of this Act may disclose that confidential information to another person if the person believes on reasonable grounds the disclosure is necessary to:

  • (a)

    enable the other person to:

    • (i)

      facilitate the rehabilitation, care or treatment of a relevant person; or

    • (ii)

      make an assessment of the other person’s capacity to facilitate the rehabilitation, care or treatment of a relevant person; or

  • (b)

    reduce the risk of a relevant person committing a serious sex offence or an offence of a sexual nature or engaging in any conduct that threatens the safety of any person; or

  • (c)

    lessen or prevent a serious threat to the life, health, safety or welfare of any person.

• (2)

  The Commissioner of Correctional Services must make guidelines in relation to the disclosure of information under this section to ensure that disclosures are limited to the greatest extent that is possible without interfering with the objects of this Act.

• (3)

  In this section:

  relevant person means a detainee, a supervisee or a person in relation to whom an application under section 23 has been made.

112BProtection from liability

• (1)

  A person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise of a power or performance of a function by the person under this Act.

• (2)

  Subsection (1) does not affect any liability the Territory would, apart from that subsection, have for the act or omission.

• (3)

  In this section:

  exercise of a power includes the purported exercise of the power.

  performance of a function includes the purported performance of the function.

113Regulations

The Administrator may make regulations under this Act.

Part 12Transitional matters for Serious Sex Offenders Amendment Act 2021 114Definitions

In this Part:

amending Act means the Serious Sex Offenders Amendment Act 2021.

commencement means the commencement of section 3 of the amending Act.

115Application of section 22

To avoid doubt, for the purposes of section 22, it is immaterial when a serious sex offence, as defined after the commencement, was committed or when a person was charged or convicted of the offence.

116Application of section 104

Section 104, as in force after the commencement, applies in relation to an appeal made after the commencement.

117Supervision orders made before commencement

• (1)

  On commencement, a requirement in an existing supervision order that a supervisee must not commit a serious sex offence or an offence of a sexual nature is taken to be a requirement that the supervisee must not commit a serious sex offence or an offence of a sexual nature as those terms are defined after the commencement.

• (2)

  However, a supervisee does not contravene a requirement of the supervisee’s existing supervision order if, before the commencement, the supervisee committed an offence that was not a serious sex offence or an offence of a sexual nature at the time the offence was committed.

• (3)

  In this section:

  existing supervision order means a supervision order that was made before the commencement and is in force on or after the commencement.

   

Schedule 1Serious sex offences

section 4, definition serious sex offence

Criminal Code
Provision of Act	Qualification
section 125B	If the person produces child abuse material
section 125E
section 127
section 128
section 130	If the victim is under 16 years
section 131A
section 132
section 134	If the victim is under 18 years
section 186B
section 192
section 192B
section 201
section 202B
section 202C
section 202D
Sex Industry Act 2019
Provision of Act	Qualification
section 12
section 13
section 14
Criminal Code (Cth)
Provision of Act	Qualification
section 271.4	If the first-mentioned person intends or is reckless as to whether the other person will be used to provide sexual services
section 271.7	If the first person intends or is reckless as to whether the other person will be used to provide sexual services
section 272.8
section 272.9
section 272.10
section 272.11
section 272.12
section 272.13
section 272.14
section 272.15
section 272.15A
section 272.18
section 272.19
section 273.6	If the person produces child abuse material
section 273.7
section 471.20	If the person produces child abuse material
section 471.22
section 471.24
section 471.25
section 471.25A
section 471.26
section 474.19	If the person transmits child pornography material
section 474.22	If the person transmits child abuse material
section 474.23	If the person produces child abuse material
section 474.24A
section 474.25A
section 474.25B
section 474.26
section 474.27
section 474.27AA
section 474.27A

Schedule 2Offences of a sexual nature

section 4, definition offence of a sexual nature, paragraph (b)

Note for Schedule 2

Serious sex offences are also offences of a sexual nature (see section 4, definition offence of a sexual nature, paragraph (a)).

Criminal Code
Provision of Act		Qualification
section 125B		If the person possesses, distributes, sells or offers or advertises for distribution or sale child abuse material
section 130		If the victim is 16 years or more
section 131
section 134		If the victim is 18 years or more
section 138
section 176		If the offence intended to be committed or facilitated is a serious sex offence
section 188(2)(k)
section 193		If the offence intended to be committed is a serious sex offence
section 213		If the offence intended to be committed is a serious sex offence
Summary Offences Act 1923
Provision of Act		Qualification
section 47AC		Loitering by sexual offender
Criminal Code (Cth)
Provision of Act	Qualification
section 272.20
section 273.6	If the person possesses or controls or distributes or obtains child abuse material
section 273A.1
section 471.19
section 471.20	If the person possesses or controls, or supplies or obtains child abuse material
section 474.22	If the person accesses child abuse material, causes child abuse material to be transmitted to himself or herself, makes available, publishes, distributes, advertises or promotes child abuse material, or solicits child abuse material
section 474.22A
section 474.23	If the person possess or controls, or supplies or obtains child abuse material
section 474.23A
section 474.25C
Customs Act 1901 (Cth)
Provision of Act	Qualification
section 233BAB	If the tier 2 goods are items of child abuse material

ENDNOTES

• 1

  KEY

Key to abbreviations

 

amd = amended od = order

app = appendix om = omitted

bl = by-law pt = Part

ch = Chapter r = regulation/rule

cl = clause rem = remainder

div = Division renum = renumbered

exp = expires/expired rep = repealed

f = forms s = section

Gaz = Gazette sch = Schedule

hdg = heading sdiv = Subdivision

ins = inserted SL = Subordinate Legislation

lt = long title sub = substituted

nc = not commenced

• 2

  LIST OF LEGISLATION

Serious Sex OffendersAct 2013 (Act No. 9, 2013)
Assent date	3 May 2013
Commenced	1 July 2013 (Gaz G24, 12 June 2013, p 2)
Correctional Services (Related and Consequential Amendments) Act 2014 (Act No. 27, 2014)
Assent date	4 September 2014
Commenced	9 September 2014 (Gaz S80, 9 September 2014, p 2)
Statute Law Revision Act 2014 (Act No. 38, 2014)
Assent date	13 November 2014
Commenced	13 November 2014
Local Court (Related Amendments) Act 2016 (Act No. 8, 2016)
Assent date	6 April 2016
Commenced	1 May 2016 (s 2, s 2 Local Court (Repeals and Related Amendments) Act 2016 (Act No. 9, 2016) and Gaz S34, 29 April 2016)
Sex Industry Act 2019 (Act No. 40, 2019)
Assent date	13 December 2019
Commenced	12 June 2020 (Gaz S35, 11 June 2020)
Serious Sex Offenders Amendment Act 2021 (Act No. 12, 2021)
Assent date	20 May 2021
Commenced	5 July 2021 (Gaz G25, 23 June 2021, p 1)

• 3

  GENERAL AMENDMENTS

General amendments of a formal nature (which are not referred to in the table of amendments to this reprint) are made by the Interpretation Legislation Amendment Act 2018 (Act No. 22, 2018) to: ss 1, 4, 12, 15, 22, 29, 50, 51, 62, 64, 79, 83, 90, 97, 102 and 108.

• 4

  LIST OF AMENDMENTS

s 4                     amd No. 27, 2014, s 57; No. , 2021, s 4

s 10                   amd No. 27, 2014, s 57

s 11                   amd No. , 2021, s 5

s 12                   amd No. 27, 2014, s 57

s 14                   amd No. 27, 2014, s 57

s 16                   amd No. 27, 2014, s 57

s 18                   amd No. 27, 2014, s 57

s 19                   amd No. , 2021, s 6

ss 20 – 22          amd No. 27, 2014, s 57

s 27                   amd No. 27, 2014, s 57

s 29                   amd No. 27, 2014, s 57

s 35                   amd No. 27, 2014, s 57

s 42                   amd No. 27, 2014, s 57

s 46A                 ins No. , 2021, s 7

s 48                   amd No. 27, 2014, s 57; No. 8, 2016, s 45; No. , 2021, s 8

s 49                   amd No. 27, 2014, s 57; No. 8, 2016, s 45; No. , 2021, s 9

s 50                   amd No. 8, 2016, s 45; No. , 2021, s 10

s 56                   amd No. 27, 2014, s 57

s 59                   amd No. 38, 2014, s 2

ss 63 – 64          amd No. 27, 2014, s 57

s 69                   amd No. 27, 2014, s 57

s 79                   amd No. 27, 2014, s 57; No. , 2021, s 11

s 80                   amd No. 27, 2014, s 57

s 88                   amd No. 27, 2014, s 57; No. , 2021, s 12

s 90                   amd No. , 2021, s 13

s 91                   amd No. , 2021, s 14

s 96                   amd No. 27, 2014, s 57

s 98                   amd No. 27, 2014, s 57

s 104                 amd No. , 2021, s 15

ss 108 – 109      amd No. 27, 2014, s 57

s 112                 sub No. , 2021, s 16

ss 112A –

112B                  ins No. , 2021, s 16

pt 12 hdg           exp No. 9, 2013, s 137

ins No. , 2021, s 17

pt 12

div 1 hdg           exp No. 9, 2013, s 137

ss 114 – 115      exp No. 9, 2013, s 137

ins No. , 2021, s 17

pt 12

div 2 hdg           exp No. 9, 2013, s 137

ss 116 – 117      exp No. 9, 2013, s 137

ins No. , 2021, s 17

ss 118 – 119      exp No. 9, 2013, s 137

pt 12

div 3 hdg           exp No. 9, 2013, s 137

ss 120 – 121      exp No. 9, 2013, s 137

pt 12

div 4 hdg           exp No. 9, 2013, s 137

ss 122 – 124      exp No. 9, 2013, s 137

pt 12

div 5 hdg           exp No. 9, 2013, s 137

ss 125 – 128      exp No. 9, 2013, s 137

pt 12

div 6 hdg           exp No. 9, 2013, s 137

ss 129 – 134      exp No. 9, 2013, s 137

pt 12

div 7 hdg           exp No. 9, 2013, s 137

ss 135 – 136      exp No. 9, 2013, s 137

pt 12

div 8 hdg           exp No. 9, 2013, s 137

s 137                 exp No. 9, 2013, s 137

sch 1                 amd No. 40, 2019, s 38

sub No. , 2021, s 18

sch 2                 amd No. 8, 2016, s 45

sub No. , 2021, s 18