Hansard debates

Mr CARROLL (Niddrie—Minister for Crime Prevention, Minister for Corrections, Minister for Youth Justice, Minister for Victim Support) (10:21:38): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Justice Legislation Amendment (Serious Offenders and Other Matters) Bill 2019. In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (Charter), I make this Statement of Compatibility with respect to the Justice Legislation Amendment (Serious Offenders and Other Matters) Bill 2019. In my opinion, the Justice Legislation Amendment (Serious Offenders and Other Matters) Bill 2019 (Bill), as introduced to the Legislative Assembly, is compatible with human rights protected by the Charter. I base my opinion on the reasons outlined in this statement. Overview of the Bill The Bill amends the Corrections Act 1986 (Corrections Act) to clarify the procedure with respect to parcels sent to and from prisoners, to amend the application of Emergency Management Days, to permit information sharing with certain bodies and to amend provisions relating to the membership of the Adult Parole Board. Further, the Bill enables victims of crime to access money awarded as compensation to a prisoner while on remand and permits prisoners who are granted bail or parole or released to, on request, stay in prison until the next working day in order to be able to access essential services. The Bill also amends the Serious Offenders Act 2018 (Serious Offenders Act) to enable certain conditions on interim supervision orders to be declared to be 'restrictive’ conditions, to make the offence of sexual activity directed at another person a 'serious sex offence’ and therefore subject to the serious offender regime, and to clarify certain procedural provisions. Amendments introduced in the Bill will also permit information about current and former offenders to be shared and published for research purposes and will align information sharing provisions for the management of offenders administered under both the Serious Offenders Act and the Corrections Act. Human rights issues The human rights protected by the Charter that are relevant to the Bill are: • Protection from cruel, inhuman or degrading punishment (section 10); • Privacy and correspondence (section 13); • Property (section 20); • Liberty (section 21); • Fair hearing (section 24); • Presumption of innocence (section 25(1)); • Right to not be punished more than once (section 26); and • Protection against retrospective criminal laws (section 27). In addition, the rights of the child are further outlined in this Statement. Amendments to the Corrections Act including prisons and parole Emergency Management Days Clause 30 of the Bill may engage sections 24 and 27 of the Charter because it includes a provision that relates to the riot at the Metropolitan Remand Centre in 2015. Once an offender is sentenced, the administration of that sentence passes to the Executive government. Under section 58E of the Corrections Act, the Secretary of the Department of Justice and Community Safety (DJCS) (or delegate such as the Commissioner of Corrections Victoria) may reduce the length of a prisoner’s sentence by granting Emergency Management Days where a prisoner has had their routine disrupted due to circumstances that are an emergency or industrial action, or of an unforeseen and special nature in a prison or police gaol. In practice, it has generally been interpreted that a significant disruption, rather than a standard security response to an incident, is required before Emergency Management Days will be granted. There is no entitlement or right to being granted an Emergency Management Day. I am of the view that the right to a fair hearing is not limited by these reforms. Clause 30 amends the Corrections Act to explicitly exclude for all prisoners the application of Emergency Management Days in relation to the prison riot at the Metropolitan Remand Centre in 2015 and the Bill expressly names that event. Clause 30 will also apply to any future emergency, riot, or other significant security incident that is caused or contributed to by a prisoner. In addition to a riot, the legislation would in practice apply to other significant security incidents, for example a fire caused or contributed to by a prisoner, or an attack by a prisoner on another prisoner or on a staff member working at the prison, police gaol or other place of custody. In my view, regarding sections 24 and 27 of the Charter, clause 30 is not criminalising behaviour that was previously lawful. Rather, new section 58E(3) in clause 30 is clarifying the scope of an existing statutory discretion. While retrospective laws are unusual, the clause is warranted because the riot at the Metropolitan Remand Centre in 2015 was an exceptional and rare event. It is critical to ensure that all and any prisoners do not receive a reduced sentence due to the lawful security response to that event. In addition, the jurisdiction of the Supreme Court of Victoria to review administrative decisions made by the Secretary of the DJCS (or delegate such as the Commissioner of Corrections Victoria) regarding Emergency Management Days is not limited by clause 30. Clause 30 reflects the paramount principle that prisoners do not receive a reduced sentence when they or any other prisoners cause or contribute to a significant breach of custodial security. This applies even if a prisoner was not involved in the other prisoner’s security breach, which will ensure that there is no benefit whatsoever to any prisoners for the security breaches caused by other prisoners. The safety and security of the overall prison system is paramount. Parcels sent and received by prisoners Clauses 21 to 29 (inclusive) of the Bill amend sections 47A, 47B and 47C of the Corrections Act to extend to parcels in addition to letters. The effect of these amendments is that the Governor may dispose of any parcels sent to or from a prisoner if the Governor reasonably suspects that the parcel contains an unauthorised article or substance that could pose an immediate danger to any person. The Governor may also inspect a confidential parcel (that is, a parcel sent to or from a lawyer, certain Commissioners listed in section 47B or persons acting on their behalf) sent to or from a prisoner if the Governor reasonably suspects that the parcel contains an unauthorised article or substance and the Governor has notified the prisoner and the correspondent. Any other parcel may be opened and inspected to determine whether or not its contents may jeopardise the safety and security of the prison, the safe custody and welfare of any prisoner or the safety of the community. The Bill expands the category of person who may open and inspect a parcel in such circumstances from a prison officer to an officer within the meaning of Part 5 of the Act. This includes prison officers, employees in the public service working in a prison or with prisoners, and volunteers. Clause 26 amends section 47D of the Corrections Act to provide that the Governor may stop all or part of a parcel from being sent or received by a prisoner in certain circumstances, including if the parcel may be of a threatening or harassing nature or may be being used to further an unlawful activity or purpose. The Bill adds a further category, providing that a letter or parcel may be stopped if the Governor reasonably believes that the sender does not know the prisoner and the sender may be placed at risk of exploitation or manipulation. Clause 27 amends section 47DA of the Corrections Act to make it an offence for a prisoner to send, attempt to send or cause to be sent a parcel to a victim if the prisoner ought reasonably to know that the parcel contains anything that may be regarded as distressing or traumatic by the victim or any other victim who might reasonably receive it. The maximum penalty for this offence is six months imprisonment. Finally, clause 28 inserts new section 47DB to provide that the Governor may place any parcel sent to a prisoner in storage instead of providing it to the prisoner. The Governor must advise the prisoner in writing of the receipt and storage of the parcel, and the parcel forms part of the prisoner’s property. By permitting the inspection, interception and disposal of parcels in certain circumstances, these provisions engage the right to privacy and the right of persons not to have their correspondence unlawfully or arbitrarily interfered with. The right to freedom of expression is also relevant, as these provisions may interfere with the right to impart and receive information, both in relation to prisoners and persons corresponding with prisoners. The right not to be deprived of one’s property except in accordance with law will be engaged where a parcel is disposed of and, in some cases, where a parcel is intercepted and not delivered to the prisoner. Privacy and correspondence Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought. The proposed amendments to permit the Governor to inspect, intercept or dispose of parcels in certain circumstances, as well to extend the inspection power to officers, engage the rights of prisoners to not have their privacy or correspondence unlawfully or arbitrarily interfered with. However, in my opinion, the interference with privacy and correspondence is neither unlawful nor arbitrary. As with letters, any interference due to these provisions will occur in precise and circumscribed circumstances. The provisions clearly define the basis upon which a decision to inspect, intercept or dispose of correspondence is made and, as such, the nature of the interference is reasonably predictable, whilst also allowing for a necessary degree of discretion to be applied in each case. Further, the amendments are reasonably proportionate to the legitimate aim of ensuring the management, good order and security of the prison and the safety or welfare of any person, consistently with the Governor’s responsibilities under the Corrections Act. In particular, the amendments to sections 47D and 47DA seek to protect vulnerable persons and victims against harm that could flow to them from parcels that may be exploitative, manipulative, distressing or traumatic. The nature of section 47DA as an offence provision also has a deterrent effect as it ensures that prisoners turn their minds to the question of whether their correspondence may be distressing or traumatic to a victim. It also provides recipients of distressing or traumatic correspondence with an effective legal remedy (by seeking to have the prisoner charged with the offence), thereby recognising the real harm such behaviour may cause. These provisions are necessary in a prison environment to ensure that the community is protected. Therefore, as the interference with privacy and correspondence is not arbitrary or unlawful, I do not consider that the amendments limit the rights protected by section 13(a). Freedom of expression Section 15(2) of the Charter provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds. Section 15(3) of the Charter provides that special duties and responsibilities are attached to the right to freedom of expression and that the right may be subject to lawful restrictions reasonably necessary to respect the rights of other persons and for the protection of national security, public order, public health or public morality. The clauses in the Bill in relation to powers to inspect, intercept and dispose of parcels in certain circumstances may interfere with the rights of prisoners to freedom of expression (to the extent that the parcel contains expressive material). The provisions may prevent prisoners from imparting or receiving information if a parcel is stopped from being sent or received, or may cause a prisoner to modify their expression if a parcel is inspected. However, given that the Charter qualifies the right to freedom of expression by recognising that it may be subject to lawful restrictions reasonably necessary to, amongst other things, respect the rights of other persons, we do not consider this right to be limited. In my opinion, the provisions serve the legitimate purpose of preventing harm to members of the community, particularly vulnerable persons and victims. The powers to inspect, intercept and dispose of parcels are proportionate and closely aligned to that purpose. The provisions do not constitute a blanket ban on communication, nor do they interfere with the fundamental right of communication with the classes of persons listed in section 47(1)(m) of the Corrections Act. Rather, they are limited to circumstances where either the Governor or, where relevant, an officer holds a reasonable belief that the parcel will either cause harm to a person or threaten the good order, management or security of the prison or the safety of the community. In particular, the offence provision in section 47DA, which protects the rights of victims from receiving parcels that may contain distressing or traumatic material, is especially aligned with that purpose. Therefore, in my opinion, the right to freedom of expression is not limited by the amendments regarding parcels in the Bill. Property Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. This right requires that powers which authorise the deprivation of property are conferred by legislation or common law, are confined and structured rather than unclear, are accessible to the public, and are formulated precisely. A parcel will only be disposed of in the limited circumstances set out in section 47A—that is, where the Governor reasonably suspects that the parcel contains an unauthorised article or substance that could pose an immediate danger to any person. Similarly, a parcel may only be stopped under section 47D where the Governor reasonably believes that the parcel is a threat to prison security, may be of a threatening or harassing nature, may be being used to further an unlawful activity or purpose, contains anything that may be regarded by a victim as distressing or traumatic, or may place a sender (if the sender does not know the prisoner) at risk of exploitation or manipulation. A parcel sent to a prisoner may be placed into secure storage by the Governor, however, the parcel forms part of the prisoner’s property. I do not consider that stopping a parcel from being sent to, or received by, a prisoner will amount to a permanent deprivation of property, such that the right in section 20 of the Charter is engaged. The discretion of the Governor to place a parcel into storage instead of providing it to the prisoner is necessary to ensure that items are not brought into prison that may threaten the management, good order or security of the prison or the safety or welfare of any person. Stored items will be returned to the prisoner when they leave the prison or may be given to a nominated person upon request by the prisoner. Further, I am satisfied that any deprivation of property occasioned by the disposal of parcels under section 47A will occur on the basis of transparent and predictable criteria directed towards the legitimate objective of preventing a person from immediate danger, and is therefore compatible with the right to property. Prisoner compensation quarantine funds Prisoner compensation quarantine funds are money held by the Secretary in trust for a prisoner under Part 9C of the Corrections Act. Where a prisoner receives an award of damages in respect of a claim made by or on behalf of the prisoner against the State for a civil wrong, that amount (minus medical and legal costs) is to be immediately paid to the Secretary to be held in trust in a prisoner compensation quarantine fund, unless the amount is less than $10,000. The fund is held for a set quarantine period, after which time amounts may be paid out of the fund to creditors and victims of the prisoner in the circumstances set out in Part 9C. Any money remaining in the fund will then be paid to, or at the direction of, the prisoner. Clause 38 amends section 104P(2) of the Corrections Act to extend the application of prisoner compensation quarantine funds to an award of damages made to a prisoner in respect of a claim arising from and in connection to the prisoner’s detention while on remand, if the prisoner is subsequently sentenced to a term of imprisonment. Privacy Extending the application of prisoner compensation quarantine funds to prisoners who receive compensation for an incident that occurred when they were on remand (if they were subsequently sentenced to imprisonment) engages the right to privacy in section 13 of the Charter. This is because the scheme in Part 9C of the Corrections Act requires the Secretary to publish a notice in the Government Gazette advising of an award of damages to a prisoner, and to inform any victim who applies to be notified of an award of damages to the prisoner. To the extent that this involves the disclosure of personal information, I consider that any interference with privacy is lawful and not arbitrary. Any interference will occur only in precise and circumscribed circumstances and for a legitimate purpose, and a number of safeguards exist regarding the use of the information where it is not already in the public domain. Accordingly, I consider that the amendments introduced by clause 38 are compatible with the right to privacy. Property Money payable to a prisoner as damages is likely to constitute property within the meaning of section 20 of the Charter, which provides that a person must not be deprived of one’s property other than in accordance with law. The European Court of Human Rights has clarified that temporary seizures of property do not constitute deprivations of property and, therefore, holding a prisoner’s money in trust for a temporary 'quarantine period’ will not limit the prisoner’s rights under section 20. Where a prisoner is permanently deprived of their damages received from the State by a court awarding damages to a victim of the prisoner, or if a creditor has a valid claim against the prisoner, the deprivation occurs by virtue of an order of the court rather than by operation of the Act. Accordingly, the amendments introduced by clause 38 do not limit the right to property under the Charter. New serious violent offence and new sexual offence—parole Clause 19(3) inserts 'extortion with threat to kill’ as a 'serious violent offence’ under the Corrections Act. Clause 17 also amends Schedule 1 to the Serious Offenders Act to include the offence of sexual activity directed at another person (which involves engaging in a sexual activity to cause fear or distress in a person who sees the activity) which will consequentially amend the existing definition of 'sexual offence’ in section 3 of the Corrections Act. Prisoners who have been convicted of and sentenced to imprisonment with a non-parole period in respect of a 'serious violent offence’ and a 'sexual offence’ are subject to stricter parole laws than other prisoners. For example, only the Serious Violent Offender or Sexual Offender Parole division of the Adult Parole Board may order the release on parole of a serious violent offender or sexual offender, and they may only make such an order if another division of the Board has recommended that parole be granted. Further, section 77 of the Corrections Act creates various presumptions in relation to the cancellation of parole for prisoners who have been released on parole in respect of a serious violent offence. Under section 77(3), if a serious violent offender is charged with a sexual offence, violent offence or terrorism or foreign incursion offence while on parole, the Parole Board must cancel the prisoner’s parole unless satisfied that circumstances exist to justify the continuation of the parole. The prisoner’s parole will be cancelled automatically under section 77(6) if the prisoner is convicted of the sexual, violent, terrorism or foreign incursion offence. The inclusion of a new offence as a 'serious violent offence’ of extortion with threat to kill and the new offence as a 'sexual offence’ of sexual activity directed at another person (which involves engaging in a sexual activity to cause fear or distress in a person who sees the activity) engage the right to liberty, to the presumption of innocence, to not be punished more than once in respect of the same offence and to not be subjected to retrospective criminal punishment. These rights were subject to a detailed analysis in the Statement of Compatibility for the Corrections Legislation Miscellaneous Amendment Bill 2017. I consider that clauses 17 and 19(3) of the Bill is compatible with the above rights because neither a refusal to make an order for parole, nor cancellation of parole, can be characterised as punishment. In both cases, the prisoner is merely required to serve the full sentence imposed by the Court for the original offence. Information sharing Information sharing under the Serious Offenders Act Clause 14 inserts new section 284(1A) into the Serious Offenders Act, which provides that a 'relevant person’ (being an individual or body defined in section 284(6)) may use or disclose information obtained under the Act to any person in certain, confined circumstances. Currently, this information can only be shared with other 'relevant persons’. To the extent that the information used or disclosed involves personal information, it will engage the right to privacy under section 13 of the Charter. The right to privacy in the Charter will not be limited if any interference is lawful and not arbitrary. In my view, new section 284(1A) is appropriately circumscribed so as not to authorise any arbitrary interferences with privacy. It permits information sharing only if the use or disclosure is authorised by the person to whom the information relates, or if the relevant person reasonably believes that the use or disclosure is necessary to reduce the risk of an offender committing certain serious offences or engaging in any behaviour that threatens a person’s safety, or to lessen or prevent a threat to the life, health, safety or welfare. I note that such grounds are consistent with the Information Privacy Principles on disclosure of personal information contained in the Privacy and Data Protection Act 2014. I consider that the high threshold imposed by this provision strikes an appropriate balance between the privacy of personal information of offenders and victims and the ability to respond quickly to serious risks and threats to safety or welfare. Information sharing and publication for research purposes Clauses 14, 15, 40, 41 and 42 of the Bill amend the Serious Offenders Act and the Corrections Act to create an express power of the Secretary to authorise the use or disclosure of information for the purposes of research, and to approve publication of that research. Such research is crucial to evaluating and improving the efficacy of the scheme, particularly in relation to the models of actuarial risk assessment upon which the scheme is based, and there is a strong public interest in undertaking this research. Any information disclosed by the Secretary to researchers must be in a de-identified form, in which information that may identify the person to whom the information relates has been removed. While names or other identifiable information will not be disclosed, it should be acknowledged that due to the sample sizes involved, especially in the context of serious sex and violence offenders, it may be possible in some cases to identify the person to whom the information relates. Accordingly, new section 289A(3) includes a privacy safeguard by making it an offence for any person to publish any information or research that enables the identification of any person to whom this disclosed information relates. Further, the Secretary will be subject to the Charter in exercising her discretion to disclose information for the purposes of research, and will discharge this obligation through the use of existing internal processes governing the approval of research, including requiring ethical approval from a relevant committee and professional research methodology and reporting, and the use of confidentiality agreements. This will ensure that all personal information remains confidential and that published research does not inappropriately identify offenders or victims. Accordingly, I am satisfied that these clauses are compatible with the right to privacy. Information sharing between departments and agencies Schedule 5 to the Corrections Act sets out persons authorised to use or disclose information under that Act. Clause 45 amends Schedule 5 to include persons employed in the Department of Premier and Cabinet and in the Commission for Children and Young People (as well as the Secretary and Commissioner, respectively, and any person who provides services or advice to or on behalf of those bodies). Under Part 9E of the Corrections Act, these persons are authorised to use or disclose personal or confidential information reasonably necessary for the performance of official duties, law enforcement, or the administration or enforcement of a court or tribunal order. They may also use or disclose personal or confidential information in the circumstances set out in section 104ZY(2) of that Act, such as if the use or disclosure is necessary to lessen or prevent a threat to the life, health, safety or welfare of any person. Clause 47 amends the Children, Youth and Families Act 2005 to permit disclosure or communication of confidential information under section 492A of that Act to the Commission for Children and Young People if the disclosure is made to assist the Commission to perform official duties. The amendment of the Children, Youth and Families Act to expressly allow officers from the Department of Justice and Community Safety to communicate or disclose confidential information, including information given to the Youth Parole Board that is not disclosed in a decision or reasons for a decision of the Board, to the Commission for Children and Young People. The purpose of these amendments is to facilitate information sharing to the Department of Premier and Cabinet in relation to whole of government initiatives, and to the Commission for Children and Young People to enable the Commission to fulfil its responsibility for monitoring vulnerable children and young people in relation to prisons. In my view, expanding the persons authorised to use or disclose information under the Corrections Act to include the Department of Premier and Cabinet and the Commission for Children and Young People will not constitute an unlawful or arbitrary interference with privacy. The circumstances in which information may be used and disclosed are clearly set out and are appropriately circumscribed. I am satisfied that any interference with a person’s privacy that occurs will therefore be permitted by law. Further, the provisions are not arbitrary as they are for legitimate purposes that are relevant to, and necessary for, the performance of the duties and functions of the relevant bodies. Additionally, in relation to clause 47, provision of information regarding children in detention to the Commission for the purpose of assisting it to perform its oversight function to uphold children’s rights will promote other rights under the Charter, such as the right to protection of children (section 17) and children’s rights in the criminal process (sections 22 and 23). For these reasons, I am satisfied that clauses 45 and 47 does not limit the right to privacy under section 13 of the Charter. Information sharing for the purposes of the National Disability Insurance Scheme (NDIS) Clauses 39 and 40(1) amends section 104ZX and 104ZY(2) of the Corrections Act to authorise the disclosure of information to the National Disability Insurance Scheme Launch Transition Agency if reasonably necessary to support the determination of eligibility for the NDIS or for the planning and provision of supports through the NDIS. The clause also permits disclosure of information to service or advice providers in relation to the NDIS if reasonably necessary to support the determination of eligibility for the NDIS or the planning and provision of supports through the NDIS. These provisions are necessary to facilitate the proper care, treatment, services or accommodation of a person with a disability and mirror existing provisions in the Serious Offenders Act that permit disclosure of information necessary to facilitate similar care services to be provided to a person. The provision of such services is also relevant to promoting the dignity and equality of a person with a disability, particularly in relation of persons deprived of their liberty. I am satisfied this clause is compatible with the right to privacy. Information sharing for the purpose of an application under the Crimes (High Risk Offenders) Act 2006 (NSW) Clause 40(1) also amends section 104ZY(2) to authorise disclosure to the Attorney-General for New South Wales of any information reasonably necessary for the purpose of an application under the Crimes (High Risk Offenders) Act 2006 of New South Wales. As the purpose of such applications is to make an extended supervision order or continuing detention order over a person considered to be an unacceptable risk of committing a serious sex offence or serious violence offence in NSW, I am satisfied that disclosure of personal information in these circumstances is compatible with the right to privacy, noting that the Victorian Privacy Principles permit disclosure where necessary to lessen or prevent a serious threat to public welfare. Reforms to the post-sentence scheme including new serious sex offence Part 2 of the Bill makes reforms to the post-sentence scheme for serious offenders to improve the operation of that Serious Offenders Act. On 3 September 2018, a new post sentence scheme was introduced in Victoria for the detention and supervision scheme of serious sex offenders and serious violent offenders under the Serious Offenders Act. The scheme applies to this category of offenders because they have finished their prison sentences but continue to pose an unacceptable risk to the community. Clause 7 amends section 49 of the Serious Offenders Act to enable a condition on an interim supervision order to be declared to be a restrictive condition. By empowering a court to declare certain conditions on an interim supervision order to be 'restrictive’, offenders on interim supervision orders will be subject to the minimum sentencing provisions in section 169 of the Act (in connection with section 10AB of the Sentencing Act 1991) if they intentionally or recklessly contravene a restrictive condition of their order. If a court is satisfied of this beyond reasonable doubt, the court must impose a term of imprisonment of not less than 12 months, unless a special reason exists. To the extent that a minimum sentencing scheme may compel the imposition of a disproportionate sentence, the amendment to section 49 is relevant to the protection from cruel, inhuman or degrading punishment in section 10 of the Charter and the right to liberty in section 21. The right to a fair trial is also relevant, insofar as the amendment limits the permissible sentence a court may impose. Finally, the criteria for determining whether a 'special reason’ exists, such that the minimum sentence will not be applied, may limit the right to be presumed innocent by requiring the offender to raise evidence to show 'substantial and compelling circumstances’ or to prove on the balance of probabilities that they had impaired mental functioning that was causally linked to the commission of the offence. These issues are considered in detail in the Statements of Compatibility for the Serious Offenders Bill 2018 and the Justice Legislation Miscellaneous Amendment Bill 2018, which conclude that the statutory minimum sentence is proportionate to the punishment by normal sentencing standards and does not usurp judicial power or limit the independence of a court. Further, any burden placed on the offender to establish the existence of a 'special reason’ is appropriate given that the exception is a beneficial provision that enables the offender to receive a non custodial sentence in circumstances where a custodial sentence would otherwise be imposed, and the offender is best placed to provide evidence that these exceptions should apply. While interim supervision orders have a lower requisite standard of proof than full supervision orders, I consider that it is appropriate for certain conditions on interim orders to be able to be declared to be 'restrictive’. An interim order cannot be made unless there are grounds to support the making of a final order, and it is in the public interest. Further, a declaration that a condition is 'restrictive’ is made by a court, and only if the court is satisfied on reasonable grounds that the declaration is necessary to address the risk of the offender committing certain serious offences. The need to address such risks, and the potential gravity of harm that such risks pose to the community is not lessened by the fact that an offender is subject to an interim order. Additionally, offenders may transition from a supervision order to an interim order while an application for renewal is pending determination, and this amendment prevents order conditions from being arbitrarily altered during this process. I note that a ruling relating to whether to declare a condition to be 'restrictive’ can be appealed, and that the mandatory minimum sentence will not apply unless the offender intentionally or recklessly contravenes a restrictive condition and the court does not consider a 'special reason’ exists. In this context, and in light of the important deterrent effect of restrictive conditions in addressing an offender’s risk of reoffending, I consider that clause 7 is compatible with the rights to liberty, a fair trial and protection from cruel, inhuman or degrading punishment. Part 2 of the Bill also includes technical amendments to Schedule 4 to the Serious Offenders Act to clarify the operation of savings and transitional provisions of the Serious Offenders Act in respect of sex offenders who were subject to post-sentence orders under the repealed Serious Sex Offenders (Detention and Supervision) Act 2009 and originally sentenced by a magistrate, including ensuring that the court or Post Sentence Authority can decide where these offenders reside such as at a residential facility. Clause 17 amends Schedule 1 to the Serious Offenders Act to include the offence of sexual activity directed at another person (which involves engaging in a sexual activity to cause fear or distress in a person who sees the activity) as a serious sex offence under that Act. The effect of this amendment is that a person who is over the age of 18 and who has a custodial sentence imposed on them by the Supreme Court or County Court for this offence is an 'eligible offender’ under section 8 of the Act (provided the other criteria in that section are met). This means that the Secretary may apply for a supervision order in respect of that person, and the Director of Public Prosecutions may apply for a detention order. By bringing persons who have had a custodial sentence imposed on them for this offence into the serious offender scheme, a number of rights may be engaged, including the rights to freedom of movement, liberty, privacy, expression, not to be punished more than once and to be protected against a retrospective penalty. Detailed consideration of the rights engaged by the serious offenders scheme is contained in the Statement of Compatibility for the Serious Offenders Bill 2018. For the reasons contained therein, I consider that Part 2 of the Bill is compatible with human rights as set out in the Charter. The Hon Ben Carroll MP Minister for Corrections