Western Australia: High Risk Serious Offenders Act 2020 (WA)

Western Australia High Risk Serious Offenders Act 2020 Western Australia High Risk Serious Offenders Act 2020 Contents Part 1 — Preliminary 1. Short title 1 2. Commencement 1 3. Terms used 1 4. Term used: community 1 5. Term used: serious offence 1 6. Term used: committing a serious offence 1 7. Term used: high risk serious offender 1 8. Objects of this Act 1 9. Act binds Crown 1 10. Application of Bail Act 1982 1 11. Proceedings under this Act 1 12. Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies 1 13. Application of Freedom of Information Act 1992 limited 1 Part 2 — High Risk Serious Offenders Board Division 1 — Establishment and functions 14. Board established 1 15. Functions of Board 1 Division 2 — Membership and meetings 16. Terms used 1 17. Membership of Board 1 18. Community members of Board 1 19. Term of office 1 20. Resignation 1 21. Terminating and cancelling appointments 1 22. Meetings of Board 1 23. Protection of information 1 Part 3 — Cooperation and sharing of information between supporting agencies 24. Cooperation between supporting agencies 1 25. Disclosure of information between supporting agencies 1 Part 4 — Restriction of offenders Division 1 — Restriction orders 26. Continuing detention order 1 27. Supervision order 1 28. Court to give reasons for making restriction order 1 29. Limitation on power to make or amend supervision order 1 30. Conditions of supervision order 1 31. Electronic monitoring 1 32. Curfew 1 33. Enforcement of electronic monitoring and curfew requirement 1 Division 2 — Applying for a restriction order 34. Terms used 1 35. Application for restriction order in relation to serious offender under custodial sentence 1 36. Application for restriction order in relation to offender subject to supervision order 1 37. Provisions relating to restriction order applications 1 38. Application where offender discharged from sentence or supervision order 1 39. State's duty of disclosure 1 40. Provision of evidentiary material to applying agency 1 41. Offender's duty of disclosure 1 42. Orders as to disclosure requirements 1 43. Fixing day for preliminary hearing 1 44. Offender may file affidavits in response 1 45. Contents of affidavit 1 46. Preliminary hearing 1 47. Discontinuing restriction order application 1 Division 3 — Making a restriction order 48. Restriction orders 1 Division 4 — Amending a supervision order 49. Application to amend conditions of supervision order 1 50. Amendment of conditions of supervision order 1 Division 5 — Contravening a supervision order 51. Warrant because of contravention 1 52. Order permitting publication of offender's photograph 1 53. State may seek orders 1 54. Reports 1 55. Court to make orders in certain cases 1 56. Orders made during contravention proceedings 1 Division 6 — Supervision order extended due to imprisonment 57. Extension of supervision order 1 Division 7 — Interim supervision orders 58. Interim supervision order 1 Division 8 — Victim submissions 59. Terms used 1 60. Making victim submissions 1 61. Availability of victim submissions 1 62. Court may have regard to victim submissions 1 Part 5 — Review of detention 63. Purpose of this Part 1 64. Review — periodic 1 65. Review — application by offender subject to order 1 66. Dealing with application 1 67. Reports 1 68. Review of detention under continuing detention order 1 Part 6 — Appeals 69. Appeals 1 70. Appeal does not stay decision 1 71. Dealing with appeal 1 Part 7 — Reports 72. Terms used 1 73. Authority to examine 1 74. Preparation of report by qualified expert 1 75. Preparation of other report 1 76. CEO to provide information 1 77. CEO may seek information 1 78. Copies of report to State and subject 1 Part 8 — General 79. Offender unfit to stand trial 1 80. Offence of contravening supervision order 1 81. Procedure on some charges of offences under s. 80 1 81A. Evidentiary provision for proceedings for offences under s. 80 concerning electronic monitoring 1 82. Proceedings to be criminal proceedings 1 83. Deciding certain matters on the papers 1 84. Evidence in certain hearings 1 85. Court may give directions 1 86. Appearance at hearings 1 87. Warrant of commitment upon order for detention 1 88. Protection from personal liability 1 89. Approved forms 1 90. Regulations 1 91. Review of this Act 1 Part 9 — Consequential amendments to other Acts Division 1 — Community Protection (Offender Reporting) Act 2004 amended 92. Act amended 1 93. Section 85A amended 1 94. Section 85G amended 1 95. Section 85H amended 1 96. Section 85I amended 1 Division 2 — Criminal Procedure Act 2004 amended 97. Act amended 1 98. Section 51 amended 1 99. Section 80 amended 1 Division 3 — Freedom of Information Act 1992 amended 100. Act amended 1 101. Schedule 2 amended 1 102. The Glossary amended 1 Division 4 — Sentence Administration Act 2003 amended 103. Act amended 1 104. Section 4 amended 1 105. Section 50 amended 1 106. Section 74A amended 1 107. Section 74B amended 1 108. Section 74D amended 1 109. Section 74E amended 1 110. Section 74G amended 1 111. Section 74J amended 1 112. Section 74K replaced 1 74K. Subsequent PSSO after cancellation for committing offence 1 113. Section 74L replaced 1 74L. Offence for breach of PSSO 1 114. Section 103 amended 1 115. Section 119 amended 1 116. Schedule 4 deleted 1 Division 5 — Other Acts amended 117. Bail Act 1982 amended 1 118. Director of Public Prosecutions Act 1991 amended 1 15A. Proceedings under High Risk Serious Offenders Act 2020 1 119. Prisons Act 1981 amended 1 120. Sentencing Act 1995 amended 1 121. Various references to Dangerous Sexual Offenders Act 2006 replaced 1 Part 10 — Repeal and transitional provisions 122. Terms used 1 123. Act repealed 1 124. Completion of things commenced 1 125. Continuing effect of things done 1 Schedule 1 — Serious offences Division 1 — Offences that are serious offences in all circumstances Subdivision 1 — Offence under the Bush Fires Act 1954 Subdivision 2 — Offence under the Children and Community Services Act 2004 Subdivision 3 — Offences under The Criminal Code Subdivision 4 — Offences under the Prostitution Act 2000 Subdivision 5 — Offence under the Road Traffic Act 1974 Subdivision 6 — Offences under Western Australian Marine Act 1982 Division 2 — Offences that are serious offences if committed in specified circumstances Subdivision 1 — Offence under The Criminal Code Subdivision 2 — Offence under the Prostitution Act 2000 Notes Compilation table 1 Uncommenced provisions table 1 Defined terms Western Australia High Risk Serious Offenders Act 2020 An Act to provide for the detention in custody or the supervision of high risk serious offenders, to repeal the Dangerous Sexual Offenders Act 2006 and to make consequential and other amendments to various Acts. The Parliament of Western Australia enacts as follows: Part 1 — Preliminary 1. Short title This is the High Risk Serious Offenders Act 2020. 2. Commencement (1) This Act comes into operation as follows — (a) Part 1 — on the day on which this Act receives the Royal Assent; (b) section 91 — on the day after that day; (c) the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions. (2) However — (a) if no day is fixed under subsection (1)(c) before the end of the period of 10 years beginning on the day on which this Act receives the Royal Assent, this Act is repealed on the day after that period ends; or (b) if paragraph (a) does not apply, and a provision of this Act does not come into operation before the end of the period of 10 years beginning on the day on which this Act receives the Royal Assent, the provision is repealed on the day after that period ends. 3. Terms used In this Act, unless the contrary intention appears — Board means the High Risk Serious Offenders Board established by section 14; CEO means the chief executive officer of the Department; committing, in relation to a serious offence, has a meaning affected by section 6; community has a meaning affected by section 4; community corrections officer has the meaning given in the Sentence Administration Act 2003 section 4(2); continuing detention order has the meaning given in section 26(1); criminal record, in relation to a person, means the criminal record of that person kept by the Commissioner of Police; Department means the department of the Public Service principally assisting in the administration of this Act; high risk serious offender has the meaning given in section 7; interim supervision order means an order under section 58; offender means — (a) a serious offender under custodial sentence; or (b) a serious offender under restriction; preliminary hearing means a preliminary hearing referred to in section 46; psychiatrist has the meaning given in the Mental Health Act 2014 section 4; public sector body has the meaning given in the Public Sector Management Act 1994 section 3(1); qualified expert means — (a) a psychiatrist; or (b) a qualified psychologist; qualified psychologist means a psychologist (as defined in the Mental Health Act 2014 section 4) who holds a master's degree or higher in psychology; relevant agency means any of the following — (a) the Department; (b) the department of the Public Service principally assisting in the administration of the Health Services Act 2016; (c) the department of the Public Service principally assisting in the administration of the Housing Act 1980; (d) the department designated as the Police Service; (e) the Police Force of Western Australia provided for by the Police Act 1892; (f) any other public sector body designated by the regulations as a relevant agency; restriction order means — (a) a continuing detention order; or (b) a supervision order; restriction order application means an application under section 35(1) or 36(1); serious offence has the meaning given in section 5; serious offender functions means functions that are concerned with the assessment or management of serious offenders under custodial sentence or serious offenders under restriction; serious offender under custodial sentence means a person — (a) who is under a custodial sentence for a serious offence; or (b) who — (i) is under a custodial sentence for an offence or offences other than a serious offence; and (ii) has been under that sentence at all times since being discharged from a custodial sentence for a serious offence; serious offender under restriction means a person who is subject to a restriction order or an interim supervision order; standard condition, in relation to a supervision order, means a condition that under section 30(2) must be included in the order; supervision order has the meaning given in section 27(1); supporting agency means any of the following — (a) a relevant agency; (b) the department of the public service principally assisting in the administration of the Prisons Act 1981; (c) the Office of the Director of Public Prosecutions; (d) the Prisoners Review Board established by the Sentence Administration Act 2003 section 102; (e) the Supervised Release Review Board established by the Young Offenders Act 1994 section 151; (f) any other public sector body designated by the regulations as a supporting agency; under a custodial sentence means subject to any of the following sentences, the term of which has not lapsed — (a) a sentence of imprisonment imposed by a court of Western Australia (including an indefinite sentence imposed under the Sentencing Act 1995 section 98(1)) or an indeterminate sentence imposed under The Criminal Code section 661 or 662; (b) a sentence of imprisonment imposed under a law of the Commonwealth; (c) a sentence of imprisonment that under the Prisoners (Interstate Transfer) Act 1983 section 25(1) is deemed to have been imposed by a court of Western Australia; (d) a sentence of detention under the Young Offenders Act 1994 for an offence committed after the young offender had reached 16 years of age; victim means a person upon whom a serious offence has been committed by a person who is or has been an offender; victim submission means a submission made under section 60(1) or (2). 4. Term used: community A reference in this Act to the community includes any community and is not limited to the community of Western Australia or Australia. 5. Term used: serious offence (1) An offence is a serious offence if — (a) it is specified in Schedule 1 Division 1; or (b) it is specified in Schedule 1 Division 2, and is committed in the circumstances indicated in relation to that offence in that Division. (2) An offence is a serious offence if — (a) it was an offence under a written law that has been repealed; and (b) the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence under subsection (1). (3) An offence is a serious offence if it is an offence of conspiracy, attempt or incitement to commit an offence that is a serious offence under subsection (1) or (2). (4) An offence against the law of the Commonwealth or of any place outside Western Australia is a serious offence if the offender's acts or omissions that constituted the offence under that law would have constituted a serious offence under subsection (1), (2) or (3) if they had occurred in Western Australia. (5) An offence against the law of the Commonwealth is a serious offence if — (a) the offence is of a sexual or violent nature; and (b) the penalty for the offence specified by the law of the Commonwealth is or includes imprisonment for 7 years or more; and (c) the offence is prescribed to be a serious offence. (6) An offence is a serious offence if the court sentencing the offender has declared it to be a serious offence under the Sentencing Act 1995 section 97A. 6. Term used: committing a serious offence A reference in this Act to a person committing a serious offence includes a reference to the person doing acts or making omissions that constitute a serious offence, regardless of whether the person — (a) would be likely to be charged with an offence; or (b) would, if charged with an offence, be found unfit to stand trial; or (c) would, if tried for an offence, be convicted. [Section 6 amended: No. 10 of 2023 s. 348.] 7. Term used: high risk serious offender (1) An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence. (2) The State has the onus of satisfying the court as required by subsection (1). (3) In considering whether it is satisfied as required by subsection (1), the court must have regard to the following — (a) any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section; (b) any other medical, psychiatric, psychological, or other assessment relating to the offender; (c) information indicating whether or not the offender has a propensity to commit serious offences in the future; (d) whether or not there is any pattern of offending behaviour by the offender; (e) any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme; (f) whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender; (g) the offender's antecedents and criminal record; (h) the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence; (i) the need to protect members of the community from that risk; (j) any other relevant matter. (4) In considering whether it is satisfied as required by subsection (1), the court must disregard the possibility that the offender might temporarily be prevented from committing a serious offence by — (a) imprisonment; or (b) remand in custody; or (c) the imposition of bail conditions. 8. Objects of this Act The objects of this Act are — (a) to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and (b) to provide for continuing control, care or treatment of high risk serious offenders. 9. Act binds Crown This Act binds the Crown in right of Western Australia and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities. 10. Application of Bail Act 1982 The Bail Act 1982 does not apply to a person detained under this Act other than a person who — (a) is charged with, and is in custody in relation to, an offence under section 33 or 80; and (b) is not detained under this Act for some other reason. 11. Proceedings under this Act (1) The Attorney General may make applications under this Act, and take other proceedings for which this Act provides, in the name of the State. (2) The Attorney General may authorise the Director of Public Prosecutions to make applications under this Act, and take other proceedings for which this Act provides, in the name of the State. (3) The Attorney General may authorise the State Solicitor to make applications under this Act, and take other proceedings for which this Act provides, in the name of the State. (4) If the State Solicitor is authorised under subsection (3) to make an application or take other proceedings — (a) the State Solicitor may appear in person or be represented by a legal practitioner in the application or proceedings; and (b) the Director of Public Prosecutions Act 1991 Part 4 applies to the State Solicitor in relation to the application or proceedings as though references in that Part — (i) to the Director of Public Prosecutions were references to the State Solicitor; and (ii) to the annual report of the Director of Public Prosecutions were references to the annual report of a public sector body of which the State Solicitor is an officer or employee. (5) A defect or error in an authorisation by the Attorney General under subsection (2) or (3) does not affect the validity of — (a) an application made or other proceedings taken in reliance on the authorisation; or (b) an order, finding or other decision made in the application or proceedings. (6) The CEO may make applications under section 49(1)(b) and 77(2). (7) A police officer may make applications under section 51(1) and 81(4)(a). (8) A community corrections officer may make applications under section 51(1). 12. Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies The Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies to this Act. 13. Application of Freedom of Information Act 1992 limited Access is not to be given under the Freedom of Information Act 1992 Parts 2 and 4 to documents brought into existence, prepared, developed, made, received or obtained under or for the purposes of — (a) this Act; or (b) any application or other proceedings under this Act. Part 2 — High Risk Serious Offenders Board Division 1 — Establishment and functions 14. Board established A board called the High Risk Serious Offenders Board is established. 15. Functions of Board (1) The functions of the Board are the following — (a) to develop and promote the development of knowledge, understanding, skills and expertise in all aspects of the assessment and management of offenders; (b) to facilitate cooperation between and the coordination of relevant agencies in the performance of their serious offender functions; (c) to facilitate information‑sharing between relevant agencies in relation to the performance of their serious offender functions; (d) to develop best practice standards and guidelines for the performance by relevant agencies of their serious offender functions; (e) to advise relevant agencies in relation to resourcing, service provision and training relevant to the performance of their serious offender functions. (2) The Board may do all things necessary or convenient to be done for, or in connection with, or as incidental to, the performance of its functions. Division 2 — Membership and meetings 16. Terms used In this Division — appointed member means a member who is appointed under section 17(1)(a)(ii) or (b); chief employee has the meaning given in the Public Sector Management Act 1994 section 3(1); chief executive officer has the meaning given in the Public Sector Management Act 1994 section 3(1); Chief Psychiatrist has the meaning given in the Mental Health Act 2014 section 4; community member means a member appointed under section 18(1); member means a member of the Board; official member means a member who is the chief executive officer or chief employee of a relevant agency, or who is the Chief Psychiatrist. 17. Membership of Board (1) The Board is to consist of — (a) for each relevant agency — (i) the chief executive officer or chief employee; or (ii) a member of staff of the relevant agency, appointed by the chief executive officer or chief employee; and (b) the Chief Psychiatrist, or a member of the staff assisting the Chief Psychiatrist, appointed by the Chief Psychiatrist; and (c) any number of community members appointed under section 18(1). (2) If a public sector body is a relevant agency under more than one paragraph of the definition of that term in section 3 or designation made under paragraph (f) of that definition, the chief executive officer or chief employee may appoint staff members under subsection (1)(a)(ii) in respect of each paragraph or designation under which the public sector body is a relevant agency. (3) The chairperson of the Board is — (a) the chief executive officer of the Department; or (b) the staff member appointed under subsection (1)(a)(ii) by the chief executive officer of the Department. 18. Community members of Board (1) The Minister may appoint as a community member of the Board a person whom the Minister considers to have 1 or more of the following attributes — (a) a knowledge and understanding of Aboriginal culture local to this State; (b) a knowledge and understanding of risk assessment and management frameworks that are appropriate for Aboriginal people; (c) a knowledge and understanding of the criminal justice system; (d) a knowledge and understanding of issues that are relevant to the Board's functions, including employment, substance abuse, physical or mental illness or disability, housing, education and training. (2) The office of a community member may be held on a full‑time basis, part‑time basis or sessional basis. (3) Community members are entitled to the remuneration and allowances set by the Minister from time to time on the recommendation of the Public Sector Commissioner. (4) The Minister may grant leave of absence to a community member on such conditions as the Minister determines. (5) The chairperson of the Board is responsible for directing the education, training and professional development of community members. (6) The Minister must ensure that appropriate provision is made for the education, training and professional development of community members. 19. Term of office (1) An official member is a member until — (a) the official member ceases to be the chief executive officer or chief employee of a relevant agency, or to be the Chief Psychiatrist; or (b) the official member appoints an appointed member. (2) An appointed member is a member until — (a) the appointed member ceases to be a member of staff of the relevant agency in respect of which they were appointed or of the Chief Psychiatrist; or (b) the appointed member resigns under section 20(1); or (c) the appointed member's appointment is cancelled under section 21(3). (3) If the appointed member in respect of a relevant agency or in respect of the Chief Psychiatrist ceases to be a member, the chief executive officer or chief employee of the relevant agency, or the Chief Psychiatrist, immediately becomes a member unless and until a further appointment is made under section 17(1)(a)(ii) or (b). (4) A community member is a member until — (a) the expiry of a term of 5 years after the day of appointment (or any shorter term specified in the instrument of appointment); or (b) the community member resigns under section 20(2); or (c) the community member's appointment is terminated under section 21(2). (5) A community member whose appointment expires under subsection (4)(a) is eligible for reappointment. 20. Resignation (1) An appointed member may resign by giving a signed letter of resignation to the chief executive officer, chief employee or Chief Psychiatrist who appointed them. (2) A community member may resign by giving a signed letter of resignation to the Minister. (3) A resignation has effect when the letter of resignation is received by the relevant person or at a later date specified in the letter of resignation. 21. Terminating and cancelling appointments (1) For the purposes of this section, grounds to terminate the appointment of a community member exist if the member — (a) has been convicted of an indictable offence or an offence committed under the law of another place that would, if it had been committed in this State, be an indictable offence; or (b) is incapable of performing the functions of a member; or (c) has neglected without a reasonable cause to perform the functions of a member; or (d) has been negligent or careless in performing the functions of a member; or (e) is unfit to be a member due to misconduct. (2) The Minister may terminate the appointment of a community member if grounds to terminate the appointment exist. (3) The chief executive officer or chief employee of a relevant agency or the Chief Psychiatrist may cancel the appointment of an appointed member at any time, and without giving reasons. 22. Meetings of Board (1) The chairperson may decide when and where the Board meets. (2) At a meeting of the Board — (a) the chairperson or a deputy nominated by the chairperson is to preside; and (b) a quorum consists of 3 members including — (i) the chairperson or a deputy of the chairperson; and (ii) at least 1 appointed member or official member; and (iii) if any community member is appointed under section 18(1), at least 1 community member; and (c) questions arising are to be determined by a majority of the members present and voting; and (d) if there is a tie in voting, the presiding member has a second vote. (3) The Board may, if it thinks fit, conduct a meeting at which all or some members participate by telephone or other similar means, but any member who speaks on a matter at the meeting must be able to be heard by the other members at the meeting. (4) Subject to this section the chairperson is to determine the procedure for convening and conducting meetings of the Board. 23. Protection of information A member must not, whether directly or indirectly, record, disclose or make use of any information obtained because of being a member, except — (a) for the purposes of and in the due exercise of serious offender functions or functions under this Act; or (b) when ordered by a court or a judge to do so; or (c) in circumstances approved, or of a kind approved, by the Minister. Penalty: a fine of $2 500. Part 3 — Cooperation and sharing of information between supporting agencies 24. Cooperation between supporting agencies (1) A supporting agency must cooperate with other supporting agencies in the performance of — (a) its own serious offender functions; and (b) the serious offender functions of other supporting agencies. (2) The duty to cooperate includes a duty to provide reasonable assistance and support to other supporting agencies in connection with the exercise of their serious offender functions. (3) Cooperation between supporting agencies in the performance of serious offender functions may include — (a) the development of multi‑agency management plans for offenders; and (b) providing assistance and support to offenders through joint programs. 25. Disclosure of information between supporting agencies (1) For the purpose of cooperating under section 24, a supporting agency (the first agency) may disclose to another supporting agency (the second agency) information in the possession or control of the first agency if the disclosure is, or could reasonably be expected to be, necessary or conducive to the performance of the serious offender functions of the first agency or the second agency. (2) If a supporting agency discloses information in good faith under subsection (1) — (a) no civil or criminal liability is incurred in respect of the disclosure; and (b) the disclosure is not to be regarded as a breach of any duty of confidentiality or secrecy imposed by law; and (c) the disclosure is not to be regarded as a breach of professional ethics or standards or as unprofessional conduct. (3) In relation to any information disclosed under this section, the second agency and its members and staff are bound by any duty of confidentiality that applies to the first agency. (4) Subsection (3) does not prevent the disclosure of information to the court, or in the proceedings, in the course of a restriction order application or other proceedings under this Act. Part 4 — Restriction of offenders Division 1 — Restriction orders 26. Continuing detention order (1) In this Act a continuing detention order in relation to an offender is an order that the offender be detained in custody for an indefinite term for control, care, or treatment. (2) A continuing detention order has effect in accordance with its terms from the time the order is made until rescinded by a further order of the court. 27. Supervision order (1) In this Act a supervision order in relation to an offender is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with section 30. (2) A supervision order has effect in accordance with its terms — (a) from a date stated in the order; and (b) for a period stated in the order. (3) The date from which a supervision order has effect must not be earlier than 21 days after the date the order is made unless the court is satisfied that the implementation of the order from an earlier date is practically feasible. 28. Court to give reasons for making restriction order A court making a restriction order must, when making the order, give detailed reasons for the order. 29. Limitation on power to make or amend supervision order (1) A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended. (2) The onus of proof as to the matter described in subsection (1) is on the offender. (3) This section does not apply to the making of an interim supervision order. 30. Conditions of supervision order (1) In this section — make public means — (a) provide to any representative of the news media for publication or broadcast; or (b) make publicly available by means of the internet. (2) A supervision order in relation to an offender must require that the offender — (a) report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and (b) report to, and receive visits from, a community corrections officer as directed by the court; and (c) notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and (d) be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and (e) not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and (f) not commit a serious offence during the period of the order; and (g) be subject to electronic monitoring under section 31. (3) A supervision order in relation to an offender may require the offender not to make public any statement, information or opinion relating directly or indirectly to any victim of a serious offence committed by the offender. (4) When considering whether to impose a requirement under subsection (3) the court must have regard to — (a) the gravity and nature of the offender's offences; and (b) the likely impact on the victims of the offender providing or making available any statement, information or opinion; and (c) the public interest generally. (5) A supervision order may contain any other terms that the court thinks appropriate — (a) to ensure adequate protection of the community; or (b) for the rehabilitation, care or treatment of the offender subject to the order; or (c) to ensure adequate protection of victims of serious offences committed by the offender subject to the order. (6) Without limiting subsection (5), a supervision order may provide that — (a) for the period specified in the order the offender is subject to a curfew under section 32; and (b) the photograph and locality of the offender must not be published under the Community Protection (Offender Reporting) Act 2004 section 85G. 31. Electronic monitoring (1) In this section — approved means approved by the CEO. (2) The purpose of electronic monitoring of an offender subject to a supervision order is to enable the location of the offender to be monitored. (3) For the purposes of the electronic monitoring of an offender subject to a supervision order, a community corrections officer may do any of the following — (a) direct the offender to wear an approved electronic monitoring device; (b) direct the offender to permit the installation of an approved electronic monitoring device at the place where the offender resides or, if the offender does not have a place of residence, at any other place specified by the community corrections officer; (ba) direct the offender to charge the approved electronic monitoring device so as to ensure the device is at all times operational; (bb) direct the offender to not enter 1 or more areas of the State stated in a written notice given to the offender by the community corrections officer; (c) give any other reasonable direction to the offender necessary for the proper administration of the electronic monitoring of the offender. (4) A community corrections officer may suspend the electronic monitoring of an offender subject to a supervision order — (a) while satisfied that it is not practicable to subject the offender to electronic monitoring; or (b) while satisfied that it is not necessary for the offender to be subject to electronic monitoring. [Section 31 amended: No. 28 of 2024 s. 43.] 32. Curfew (1) In this section — specified means specified by a community corrections officer from time to time. (2) The purpose of a curfew is to allow for the movements of an offender subject to a supervision order to be restricted during periods when there is a risk of the offender committing a serious offence. (3) The curfew is a requirement that the offender must remain at a specified place for specified periods, except as provided in subsection (5). (4) The offender cannot be required by the curfew to remain at the specified place for periods that amount to less than 2 or more than 12 hours in any 1 day. (5) The offender may leave the specified place during a specified period only — (a) to obtain urgent medical or dental treatment for the offender; or (b) for the purpose of averting or minimising a serious risk of death or injury to the offender or to another person; or (c) to obey an order issued under a written law (such as a summons) requiring the offender's presence elsewhere; or (d) for a purpose approved of by a community corrections officer; or (e) at the direction of a community corrections officer. (6) A community corrections officer may give any reasonable direction to the offender necessary for the proper administration of the curfew requirement. (7) Without limiting subsection (6), if the offender is authorised under subsection (5) to leave the specified place, a community corrections officer may give directions as to any of the following — (a) when the offender may leave; (b) the period of the authorised absence; (c) when the offender must return; (d) the route and method of travel to be used by the offender during the absence; (e) the manner in which the offender must report the offender's whereabouts. 33. Enforcement of electronic monitoring and curfew requirement (1) A community corrections officer may — (a) direct the occupier of a place where an electronic monitoring device has been installed under section 31(3) to give the device to a community corrections officer within a time specified by the officer; and (b) at any time, enter a place where an electronic monitoring device has been installed under section 31(3) and retrieve the device. (2) A person must not — (a) fail to comply with a direction under subsection (1)(a); or (b) hinder a community corrections officer exercising powers under subsection (1)(b). Penalty for this subsection: a fine of $12 000 or imprisonment for 12 months. (3) A person must not without reasonable excuse remove, or interfere with, or interfere with the operation of, an electronic monitoring device required to be worn or installed under section 31(3) in such a way as to prevent or impede monitoring of the offender's location. Penalty for this subsection: imprisonment for 3 years. (4) Except as provided in subsection (5), if a person is convicted of an offence under subsection (3) committed at a time when the person had reached 18 years of age, then, despite any other written law, the court sentencing the person — (a) must sentence the person to a term of imprisonment of at least 12 months; and (b) must not suspend the term of imprisonment. (5) If a term of imprisonment of at least 12 months would be clearly unjust given the circumstances of the offence and the person, the court may decide — (a) to sentence the person to a term of imprisonment of less than 12 months; or (b) not to sentence the person to a term of imprisonment. (6) To ascertain whether or not an offender who is subject to a curfew is complying with the curfew, a community corrections officer may, at any time — (a) enter or telephone a place specified under section 32(3) in relation to the offender; and (b) enter or telephone the offender's place of employment or any other place where the offender is authorised or required to attend; and (c) question any person at any place referred to in paragraph (a) or (b). (7) A person must not — (a) hinder a community corrections officer exercising powers under subsection (6); or (b) fail to answer a question put under subsection (6)(c) or give an answer that the person knows is false or misleading in a material particular. Penalty for this subsection: a fine of $12 000 or imprisonment for 12 months. (8) An act or omission of an offender subject to a supervision order that is a contravention of subsection (2), (3) or (7) — (a) does not constitute an offence under this section; but (b) is, for the purposes of this Act, taken to be a contravention of a requirement of the order (if it is not otherwise). Division 2 — Applying for a restriction order 34. Terms used In this Division — applying agency, in relation to a restriction order application, means — (a) if the application is made by the Attorney General, the Department; and (b) if the application is made by the Director of Public Prosecutions, the Office of the Director of Public Prosecutions; and (c) if the application is made by the State Solicitor, the State Solicitor's Office; evidentiary material, in relation to a restriction order application, means any of the following — (a) a copy of every recorded statement, whether written or oral, by any person who may be able to give evidence that is relevant to the application, irrespective of whether or not it assists the case of the State or of the offender; (b) a copy of every recording of evidence given by a person mentioned in paragraph (a), irrespective of whether or not it assists the case of the State or of the offender; (c) if there is no statement or recording referred to in paragraph (a) or (b), a written summary of the evidence to be given by a person mentioned in paragraph (a); (d) a copy of any document or object to which a statement or recording referred to in paragraph (a) refers; (e) a copy of every other document or object that the State intends to tender in evidence at the hearing of the application; (f) a copy of every other document or object that may assist the offender's case. 35. Application for restriction order in relation to serious offender under custodial sentence (1) The State may apply to the Supreme Court for a restriction order in relation to a serious offender under custodial sentence who is not a serious offender under restriction. (2) Subsection (1) applies whether the custodial sentence was imposed before or after the commencement of this section and whether or not the offender is in custody. (3) If the offender is in custody, an application under subsection (1) cannot be made unless there is a possibility that the offender might be released from custody within the period of 1 year after the application is made. (4) An application under subsection (1) need not specify whether the restriction order sought is a continuing detention order or a supervision order. 36. Application for restriction order in relation to offender subject to supervision order (1) The State may apply to the Supreme Court for a restriction order in relation to an offender who is subject to a supervision order (the current order) that is to expire within 1 year. (2) An application under subsection (1) must specify whether the restriction order sought is a continuing detention order or a supervision order. (3) A restriction order granted on an application under subsection (1) takes effect on the expiry of the current order. 37. Provisions relating to restriction order applications (1) A restriction order application must be accompanied by any affidavits to be relied on by the State for the purpose of seeking an order or orders under section 46. (2) Within 7 days after making a restriction order application, the State must give the offender a copy of the application and any affidavits accompanying it. (3) At the time of, or after, making a restriction order application, the State may apply to the Supreme Court for a summons or warrant if the offender — (a) is not in custody; or (b) may not be in custody at the time of the preliminary hearing. (4) If the State applies under subsection (3), the Supreme Court may issue, in the form approved under section 89 — (a) a summons requiring the offender to appear before the Supreme Court for the preliminary hearing; or (b) a warrant directed to all police officers for the offender to be arrested and brought before the Supreme Court for the preliminary hearing. 38. Application where offender discharged from sentence or supervision order A restriction order application may proceed and the offender may be dealt with in accordance with this Act even if, while the application is pending — (a) in the case of an application under section 35(1), the offender ceases to be under a custodial sentence; or (b) in the case of an application under section 36(1), the offender ceases to be subject to a supervision order. 39. State's duty of disclosure (1) As soon as practicable after the preliminary hearing in relation to a restriction order application, the State must give to the offender — (a) any evidentiary material in the possession of the applying agency that may be relevant to the application; and (b) any other prescribed document that is in the possession of the applying agency. (2) Subsection (3) applies if, after complying with subsection (1) and before the application is finally dealt with, the applying agency receives or obtains any of the following material (new evidentiary material) — (a) additional evidentiary material that may be relevant to the application; (b) any statement or recording described in subsection (4)(b); (c) the name or address of a person described in subsection (4)(c). (3) The State must give new evidentiary material to the offender as soon as practicable after receiving or obtaining it. (4) A requirement under this section to give evidentiary material includes a requirement — (a) if it is not practicable to copy a document or object referred to in paragraph (d), (e) or (f) of the definition of evidentiary material in section 34 — to give a notice that describes the document or object and states where and when it can be inspected; and (b) if a copy of a statement or recording of a person is given — to give a copy of any statement or recording of the person that contains material that is inconsistent with that statement or recording; and (c) to give — (i) notice of the name and, if known, the address of any person who the applying agency thinks may be able to give evidence that may assist the offender's case but from whom no statement or recording of the kind referred to in paragraph (a) or (b) of the definition of evidentiary material has been obtained; and (ii) a description of the evidence concerned. (5) The operation of this section is subject to — (a) the Evidence Act 1906 sections 19C and 106HB(3); and (b) any other written law that relates to the disclosure of specific information; and (c) the law on privilege; and (d) the law on public interest immunity. (6) This section does not affect the operation of the Criminal Investigation Act 2006 section 117. 40. Provision of evidentiary material to applying agency (1) The applying agency in relation to a restriction order application may request a supporting agency or any other person, body or agency to provide to the applying agency any evidentiary material, or any document prescribed under section 39(1)(b), that is in its possession. (2) A supporting agency or other person, body or agency must comply with a request under subsection (1). (3) If a supporting agency or other person, body or agency discloses information in good faith under subsection (2) — (a) no civil or criminal liability is incurred in respect of the disclosure; and (b) the disclosure is not to be regarded as a breach of any duty of confidentiality or secrecy imposed by law; and (c) the disclosure is not to be regarded as a breach of professional ethics or standards or as unprofessional conduct. (4) In relation to any information disclosed under this section, the applying agency and its members and staff are bound by any duty of confidentiality that applies to the supporting agency, or other person, body or agency, disclosing the information. (5) Subsection (4) does not prevent the disclosure of information — (a) to the court, or in the proceedings, in the course of the restriction order application; or (b) to the offender under section 39. 41. Offender's duty of disclosure (1) In this section — expert evidence material relevant to a restriction order application means — (a) a copy of every statement, recording or report obtained by the offender from any person who the offender intends to call to give expert evidence that is relevant to the application; and (b) written notice of the name and, if known, the address, of any person from whom no statement, recording or report has been obtained by the offender but who the offender intends to call to give expert evidence that is relevant to the application; and (c) a written description of the expert evidence referred to in paragraph (b). (2) The offender must, at least 28 days before the day fixed under section 46 for the hearing of a restriction order application, lodge with the court and give to the State a copy of — (a) any expert evidence material relevant to the application; and (b) written notice of any objection by the offender to — (i) any document that the State intends to adduce at the hearing of the application; or (ii) any evidence to be given by a witness that the State intends to call at the hearing of the application; and (c) written notice of the grounds for any objection mentioned in paragraph (b). (3) If, after complying with subsection (2), an offender receives or obtains further expert evidence material relevant to the application, the offender must lodge the further material with the court and give a copy of it to the State as soon as practicable. 42. Orders as to disclosure requirements (1) In this section — disclosure requirement means a requirement under section 39 or 41 to disclose material. (2) The powers in this section may be exercised by the court on its own initiative or on an application by a party to a restriction order application. (3) The court may make an order in respect of a disclosure requirement — (a) that dispenses with all or part of the requirement, if it is satisfied that — (i) there is a good reason to do so; and (ii) no miscarriage of justice will result; or (b) that shortens or extends the time for obeying the requirement; or (c) that amends or cancels an order made previously under this section, whether by the court or some other court; or (d) as to any other matter that the court considers just. (4) An application for an order under this section may be made without notice to the offender and may be dealt with in the absence of the offender. (5) An application for an order under this section that is made without notice to the offender must not be dealt with in open court and the only persons who may be present when it is dealt with are the applicant and any other persons permitted by the court. (6) If an order is made under this section in the absence of the offender, the order must not be given or disclosed to the offender without the permission of the court. 43. Fixing day for preliminary hearing (1) After a restriction order application is made, the court must fix a day for the matter to come before the court for a preliminary hearing. (2) Within 7 days after the court has fixed a day for the preliminary hearing or any other period specified by the court, the State must give the offender notice of the day fixed. 44. Offender may file affidavits in response (1) The offender may lodge affidavits to be relied on by the offender for the preliminary hearing. (2) The offender must give a copy of the affidavits to the State at least 7 days before the day fixed for the preliminary hearing. 45. Contents of affidavit An affidavit for use in a preliminary hearing must be confined to the evidence the person making it could give orally except that it may contain statements based on information and belief if the person making the affidavit states the source of the information and the grounds for the belief. 46. Preliminary hearing (1) The main purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might, in accordance with section 7, find that the offender is a high risk serious offender. (2) If the court is satisfied as described in subsection (1) — (a) the court must order that the offender undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports in accordance with section 74 to be used on the hearing of the restriction order application; and (b) the court may, on the application of the State or of the offender, order that a person or body named by the court prepare a report in accordance with section 75 to be used on the hearing of the restriction order application on questions or topics set out in the order; and (c) the court may — (i) if the offender is in custody and might otherwise be released from custody before the restriction order application is finally decided, order that the offender be detained in custody for the period stated in the order; and (ii) if the offender is not in custody, order that the offender be detained in custody for the period stated in the order; and (d) the court must, except as provided in subsection (3), fix a day for the hearing of the restriction order application. (3) The court may defer fixing a day for the hearing of the restriction order application or, if it has already fixed a day, adjourn the hearing if — (a) the offender has been charged with a further offence; and (b) that charge has not been dealt with; and (c) the court considers that the interests of justice require that the restriction order application should not be heard until that charge has been dealt with. 47. Discontinuing restriction order application (1) The State may discontinue a restriction order application at any time by lodging a notice of discontinuance with the court and giving it to the offender. (2) The application is dismissed when the court makes an order in terms of the notice of discontinuance. (3) When an application is dismissed under subsection (2), any order under section 46(2)(c) relating to the offender is discharged. Division 3 — Making a restriction order 48. Restriction orders (1) If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must — (a) make a continuing detention order in relation to the offender; or (b) except as provided in section 29, make a supervision order in relation to the offender. (2) In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community. Division 4 — Amending a supervision order 49. Application to amend conditions of supervision order (1) An application to the Supreme Court to amend the conditions of a supervision order may be made — (a) by the offender who is subject to the supervision order; or (b) with the Attorney General's consent, by the CEO. (2) An offender making an application under subsection (1)(a) must give notice of the application to — (a) the Attorney General; and (b) the CEO. (3) The CEO must give notice of an application under subsection (1)(b) to the offender who is subject to the order. 50. Amendment of conditions of supervision order (1) On an application under section 49 the court may, except as provided in section 29, amend the conditions of a supervision order if the court is satisfied that — (a) the offender who is subject to the order is unable to comply with the conditions of the order because of a change in the offender's circumstances; or (b) the amendment is necessary or desirable for any other reason. (2) Before amending the conditions the court must be satisfied that — (a) it is reasonable to make the amendment in all the circumstances; and (b) the conditions, as amended, will be sufficient to ensure adequate protection of the community. Division 5 — Contravening a supervision order 51. Warrant because of contravention (1) A police officer or community corrections officer who reasonably suspects that an offender who is subject to a supervision order is likely to contravene, is contravening, or has contravened, a condition of the order may apply to a magistrate for — (a) the issue of a warrant under subsection (3); and (b) an order under section 52. (2) A person making an application under subsection (1) must advise the State as soon as practicable that the application has been made. (3) Subject to subsection (5), if the magistrate is satisfied that there are reasonable grounds for the suspicion described in subsection (1), the magistrate must issue, in the form approved under section 89, a warrant directed to all police officers for the offender who is subject to the supervision order to be arrested and brought before the Supreme Court for it to consider the suspected or anticipated contravention. (4) A warrant under subsection (3) must state the suspected or anticipated contravention, and may state it in general terms. (5) A magistrate cannot issue a warrant under subsection (3) for the arrest of an offender unless the application for the warrant is supported by evidence on oath. (6) For the purpose of arresting an offender under a warrant under subsection (3), a police officer may enter and search any premises (including any residence or vehicle) where the police officer reasonably suspects the offender to be present. 52. Order permitting publication of offender's photograph (1) A magistrate issuing a warrant under section 51(3) may order that, until the offender is arrested or appears before the Supreme Court, a photograph of the offender may be published under the Community Protection (Offender Reporting) Act 2004 section 85G. (2) Subsection (1) applies despite — (a) any condition of a supervision order referred to in section 30(6)(b); or (b) any other order of a court which would prohibit the publication of a photograph of the offender. (3) A magistrate must not make an order under subsection (1) unless the magistrate considers it necessary in the interests of justice and for the adequate protection of the community. 53. State may seek orders (1) This section applies to — (a) an offender who is brought before the Supreme Court under a warrant issued under section 51(3) or 56(7)(d); and (b) an offender who is charged with an offence under section 80(1). (2) In relation to the offender, the State may apply for — (a) an order under section 55; and (b) an order for the offender to be detained in custody while proceedings on the application for an order under section 55 are pending. (3) The application must state what order is sought under section 55. 54. Reports If an application is made under section 53 in relation to an offender, the court — (a) may order that the offender undergo examination by 1 or more qualified experts for the purpose of preparing a report or reports in accordance with section 74; and (b) on the application of the State or of the offender, may order that a person or body named by the court prepare a report in accordance with section 75 on questions or topics set out in the order. 55. Court to make orders in certain cases (1) If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates has contravened or is contravening a condition of a supervision order, the court must — (a) rescind the supervision order and make a continuing detention order in relation to the offender; or (b) except as provided in section 29, make an order amending the conditions of the supervision order, or extending the period for which the offender is to be subject to the supervision order, or both; or (c) except as provided in section 29, make an order affirming the supervision order without amendment or extension. (2) If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates is likely to contravene a condition of a supervision order, the court must — (a) rescind the supervision order and make a continuing detention order in relation to the offender; or (b) except as provided in section 29, make an order — (i) amending the conditions of the supervision order; or (ii) amending the conditions of, and extending the period for which the offender is to be subject to, the supervision order. (3) In deciding which order to make under subsection (1) or (2), the paramount consideration is to be the need to ensure adequate protection of the community. 56. Orders made during contravention proceedings (1) This section applies if an offender who is subject to a supervision order is before the Supreme Court and proceedings on an application made under section 53 in respect of the offender are pending (the pending proceedings). (2) The court may at any time in the pending proceedings — (a) if the offender is detained in custody, order the offender to be released, subject to subsection (3); or (b) if the offender is not detained in custody, order the offender to be detained in custody. (3) The court cannot order the offender to be released unless it is satisfied on the balance of probabilities that — (a) releasing the offender is justified by exceptional circumstances; and (b) the offender will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b). (4) The onus of proof as to the matter described in subsection (3)(b) is on the offender. (5) For the purposes of subsection (3), in considering whether releasing the offender is justified by exceptional circumstances the court may, as it thinks fit, receive and take into account information put before it, whether or not that information would normally be admissible in a court of law. (6) In making a decision under subsections (2) and (3), the paramount consideration is to be the need to ensure adequate protection of the community. (7) If the court releases the offender — (a) the offender remains subject to the supervision order; and (b) the court may, before the pending proceedings are determined, make an interim order amending the supervision order to include any requirements the court considers appropriate to ensure adequate protection of the community; and (c) the court may order the offender to reappear before the court at any adjourned hearing of the pending proceedings; and (d) if it is alleged that the offender has further breached the supervision order or breached an order made under paragraph (c), the court may issue a warrant to have the offender arrested and brought before the court. Division 6 — Supervision order extended due to imprisonment 57. Extension of supervision order (1) This section applies if an offender who is subject to a supervision order is sentenced to imprisonment for any offence, whether committed before or after the supervision order was made. (2) The period for which the supervision order applies is extended by any period after the order is made during which the offender is in custody serving the sentence of imprisonment. Division 7 — Interim supervision orders 58. Interim supervision order (1) In this section — specified means specified by the court in an order made under this section. (2) This section applies if — (a) proceedings on a restriction order application or an application made under section 49 or 53 are pending (the pending proceedings); and (b) the offender to whom the pending proceedings relate is not in custody; and (c) the court is satisfied that, to ensure adequate protection of the community, it is desirable to make an order under this section. (3) If the offender is subject to a supervision order that may otherwise expire before the pending proceedings are finally determined, the court may at any time in the pending proceedings order that the supervision order is to continue until the pending proceedings are finally determined or until another specified date. (4) If the offender has been subject to a supervision order that has expired, the court may at any time in the pending proceedings order that the supervision order is to be reinstated with effect from a specified date and is to continue until the pending proceedings are finally determined or until another specified date. (5) In any other case, the court may at any time in the pending proceedings order that, with effect from a specified date and until the pending proceedings are finally determined or until another specified date, the offender is to be subject to stated conditions that the court, subject to subsection (6), considers appropriate. (6) Section 30 applies to an order under this section as if it were a supervision order. Division 8 — Victim submissions 59. Terms used In this Division — make available means make available to an offender or to a person acting on behalf of, or representing, an offender; relevant application means — (a) a restriction order application; and (b) an application under section 49 to amend the conditions of a supervision order; and (c) an application under section 53 for an order under section 55; and (d) an application under section 64 or 65 for the review of an offender's detention. 60. Making victim submissions (1) Where a relevant application is made in relation to an offender, a victim of a serious offence committed by that offender may make a submission to the court in relation to the need to ensure adequate protection of the victim. (2) Another person may make a submis