Part 9 The Serious Offenders Review Council
Introductory note. This Part establishes the Serious Offenders Review Council. It deals with the following matters:(a) the constitution and functions of the Review Council (Division 1),(b) the powers of the Review Council in relation to inquiries conducted by it (Division 2),(c) the establishment of the Serious Offenders Management Committee and its subcommittees (Division 3),(d) other miscellaneous matters (Division 4).
Division 1 Constitution and functions
195 Constitution of Review Council
(1) There is constituted by this Act the Serious Offenders Review Council.(2) The Review Council is to consist of at least 8, but not more than 14 members, of whom:(a) 3 are to be judicially qualified persons (referred to as judicial members), appointed by the Governor, and(b) 2 members are to be officers of the Department (referred to as official members), appointed by the Commissioner, and(c) the remainder (referred to as community members) are to be persons who reflect as closely as possible the composition of the community at large, appointed by the Governor.(3) For the purposes of this Act:(a) the members referred to in subsection (2) (a) and (c) are referred to as appointed members, and(b) the members referred to in subsection (2) (b) and (c) are referred to as non-judicial members.(4) Schedule 2 has effect with respect to the constitution and procedure of the Review Council.
196 Divisions of Review Council
(1) The Chairperson may from time to time constitute Divisions of the Review Council and dissolve any Division so constituted.(2) A Division is to consist of a judicial member, a community member and an official member.(3) The Chairperson may delegate to a Division any of the functions of the Review Council.(4) For the purpose of its exercise of any function so delegated, a Division is taken to be the Review Council.
197 Functions of Review Council
(1) The Review Council has such functions as are conferred on it by or under this or any other Act or law.(2) In particular, the Review Council has the following functions:(a) to provide advice and make recommendations to the Commissioner with respect to the following:(i) the security classification of serious offenders,(ii) the placement of serious offenders,(iii) developmental programs provided for serious offenders,(b) to provide reports and advice to the Parole Authority concerning the release on parole of serious offenders,(c) to prepare and submit reports to the Supreme Court with respect to applications under Schedule 1 to the Crimes (Sentencing Procedure) Act 1999,(d) to review segregated and protective custody directions under Division 2 of Part 2,(d1) to make recommendations to the Minister with respect to the transfer of juvenile inmates from juvenile correctional centres to adult correctional centres under Division 3A of Part 2,(e) to provide reports and advice to the Minister and to such other persons or bodies as may be prescribed by the regulations,(f) to perform such other functions as may be prescribed by the regulations in relation to the management of serious offenders and other offenders.(3) (Repealed)
197A Review Council constituted by Chairperson alone in certain circumstances
(1) The regulations may require any of the Review Council’s functions under Division 2 (Segregated and protective custody) of Part 2, in relation to a specified class of inmate, to be exercised by the Chairperson.(2) Accordingly, in such a case, the Review Council is taken to be constituted by the Chairperson alone.(3) Any functions of the Review Council under Division 2 of Part 2 that are not required by the regulations to be exercised by the Chairperson may be delegated by the Review Council to the Chairperson or a judicial member nominated by the Chairperson.
198 Matters to be considered in relation to certain advisory functions
(1) When exercising its functions under section 197 (2) (a) in relation to a serious offender, the Review Council must consider the public interest and any other relevant matters.(2) In the case of its function under section 197 (2) (a) (i), the Review Council must also consider, in accordance with the regulations:(a) any submissions made by the State, and(b) any submissions made by victims of the serious offender,before advising or recommending that a serious offender should be given a less stringent security classification if it appears to the Review Council that the new classification would allow the offender to become eligible for unescorted leave of absence under a local leave permit or interstate leave permit.(2A) When exercising its functions under section 197 (2) (b) in relation to a serious offender, the Review Council must consider the following matters:(a) the public interest,(b) the offender’s classification history,(c) the offender’s conduct while in custody, both in relation to sentences currently being served and in relation to earlier sentences,(d) the offender’s willingness to participate in rehabilitation programs, and the success or otherwise of his or her participation in such programs,(e) any relevant reports (including any medical, psychiatric or psychological reports) that are available to the Review Council in relation to the offender,(f) any other matter that the Review Council considers to be relevant.(3) Without limiting the generality of the meaning of public interest in subsections (1) and (2A), the Review Council is to take into account the following matters when considering the public interest:(a) the protection of the public, which is to be paramount,(b) the nature and circumstances of the offence,(c) the reasons and recommendations of the sentencing court,(d) the criminal history and family background of the offender,(e) the time the offender has served in custody and the time the offender has yet to serve in custody,(f) the offender’s conduct while in custody, including the offender’s conduct during previous imprisonment, if applicable,(g) the attitude of the offender,(h) the position of and consequences to any victim of the offender, including the victim’s family,(i) the need to maintain public confidence in the administration of criminal justice,(j) the need to reassure the community that serious offenders are in secure custody as long as it is appropriate,(k) the rehabilitation of the offender and the re-entry of the offender into the community as a law-abiding citizen,(l) the availability to the offender of family, departmental and other support,(m) such other factors as are prescribed by the regulations.
199 Matters to be considered in relation to offenders serving existing life sentences
(1) This section applies to an offender serving an existing life sentence (as referred to in Schedule 1 to the Crimes (Sentencing Procedure) Act 1999) or a sentence for which a determination has been made under that Schedule.(2) The Review Council, in exercising its functions under section 197 (2) (b) and (c), and under any other prescribed provisions of this Act or the regulations, in relation to an offender to whom this section applies:(a) must have regard to and give substantial weight to any relevant recommendations, observations and comments made by the sentencing court, and(b) must give consideration to adopting or giving effect to any such recommendations, observations and comments and to the intention of the sentencing court when making them, and(c) to the extent that it declines to adopt or give effect to any such recommendations, observations and comments, must state its reasons for doing so,and must, in particular, have regard to the need to preserve the safety of the community.
200 Power to require attendance of witnesses and production of documents
(1) A judicial member may, by instrument in writing, require any person on whom the instrument is served personally or by post:(a) to appear before the Review Council for the purpose of giving evidence, or(b) to produce to the Review Council any document (including a document in the custody or under the control of the person and in the possession of or the property of the Crown) that is relevant to any proceeding of the Review Council,at a time, date and place specified in the instrument.(2) A judicial member may require a person who appears before the Review Council to be sworn for the purpose of giving evidence on oath and may administer an oath accordingly.(3) If a document is produced to the Review Council at an inquiry, the Review Council may take possession of the document for such period as it considers necessary for the purposes of the proceedings before it.(4) This section does not require a person to produce to the Review Council at an inquiry any document the production of which the Minister certifies in writing:(a) may endanger an offender or any other person, or(b) may otherwise be contrary to the public interest.
201 Examination by judicial member
(1) A judicial member may require a person (including an officer or employee of the Crown) who appears before the Review Council to answer a question that is reasonably related to the proceedings before the Review Council.(2) A natural person is not excused from answering a question put by a judicial member on the ground that the answer tends to incriminate the person.(3) If a person claims, before answering such a question, that the answer tends to incriminate the person, neither the question nor the answer is admissible in evidence against the person in criminal proceedings, other than proceedings for an offence against section 202 (c) or on a charge of perjury in respect of the answer.
A person must not:(a) refuse, fail or neglect to comply with a requirement under section 200 or 201, except to the extent to which the person is lawfully excused from complying with the requirement, or(b) produce any document, knowing it to be false or misleading in a material particular, in purported compliance with a requirement under section 200, or(c) make an unsworn statement, knowing it to be false or misleading in a material particular, when appearing before the Review Council.Maximum penalty: 5 penalty units.
203 Misconduct before Review Council
(1) A person must not, during a hearing before the Review Council:(a) wilfully insult any member of the Review Council, or(b) wilfully misbehave during the hearing, or(c) wilfully and without lawful excuse interrupt the hearing, or(d) wilfully and without lawful excuse disobey a direction of the judicial member presiding at the hearing.Maximum penalty: 10 penalty units.
(2) The judicial member presiding at the hearing may direct a person who does any such thing to leave the place where the hearing is being conducted.
204 Rights of parties making submissions
At any hearing before the Review Council at which any person is entitled under this Act to make submissions to the Review Council, the person:(a) may be represented by an Australian legal practitioner or, with the consent of the Review Council, by any other person, and(b) may call and examine any witness who attends, including any witness called by the Review Council, and(c) may give evidence on oath, and(d) may produce documents and exhibits to the Review Council, and(e) may otherwise adduce, orally or in writing, to the Review Council such matters, and address the Review Council on such matters, as are relevant to the proceedings before the Review Council.
A person who is required to appear or give evidence before the Review Council at an inquiry is entitled to be paid such allowances and expenses (if any) as the Minister may determine in respect of the person.
Division 3 Serious Offenders Management Committee
206 Establishment of Management Committee
(1) The Review Council may establish, and appoint the members of, a Serious Offenders Management Committee (the Management Committee) and, subject to this section, delegate to that Committee such of its functions as the Review Council determines.(2) The Management Committee is to be constituted by a Chairperson (being one of the official members of the Review Council) and such number of officers of the Department as may be determined by the Review Council.(3) The Review Council is to determine the quorum for a meeting of the Management Committee.(4) The Chairperson of the Management Committee is to determine the procedure for the calling of meetings of the Management Committee and for the conduct of business at those meetings.
207 Establishment of Management Committee subcommittees
(1) The Chairperson of the Management Committee may establish subcommittees of the Management Committee for the purpose of assisting it in the exercise of its functions.(2) The procedure for the calling of meetings of a subcommittee and for the conduct of business at those meetings is to be determined by the Chairperson of the Management Committee or (subject to any determination of the Chairperson) by the subcommittee.
208 Delegation to Management Committee of Review Council functions
(1) The functions of the Review Council that may be delegated to the Management Committee include (but are not limited to) the following:(a) the functions relating to the security classification and management of serious offenders,(b) the functions relating to the review of developmental programs provided for such offenders.(2) The Review Council may not delegate to the Management Committee its functions relating to:(a) the submission of reports to the Supreme Court with respect to applications under Schedule 1 to the Crimes (Sentencing Procedure) Act 1999, or(b) the submission of reports to, or representation before, the Parole Authority.
(1) As soon as practicable after 31 December in each year, the Review Council must furnish to the Minister for presentation to Parliament a report giving information as to the Review Council’s activities during that year.(2) If a House of Parliament is not sitting when the Minister seeks to comply with subsection (1), the Minister must present copies of the report to the Clerk of the House of Parliament.(3) A report presented to the Clerk of a House of Parliament:(a) is taken on presentation, and for all purposes, to have been laid before the House of Parliament, and(b) may be printed by authority of the Clerk of the House, and(c) for all purposes is taken to be a document published by order or under the authority of the House, and(d) on the first sitting day of the House after receipt of the report by the Clerk, must be recorded:(i) in the case of the Legislative Council—in the Minutes of the Proceedings of the Legislative Council, or(ii) in the case of the Legislative Assembly—in the Votes and Proceedings of the Legislative Assembly.
209A Security of certain information
Nothing in this Act or the regulations requires a person to be provided with a copy of a report or another document (or any part of the report or document) if its provision to the person may, in the opinion of a judicial member:(a) adversely affect the security, discipline or good order of a correctional centre, or(b) endanger the person or any other person, or(c) jeopardise the conduct of any lawful investigation, or(d) prejudice the public interest.