Corrections Amendment Bill 2008
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Clause 1
sets out the main purpose of the Bill, which is to amend the
Corrections Act 1986 to provide for the creation of prisoner
compensation quarantine funds for the purpose of paying into
those funds certain damages awarded to prisoners and to provide
for the payment out of those funds of certain amounts
recoverable by victims and others from prisoners.
Clause 2
provides for the commencement of the Bill. The Bill will
commence on the day after the day on which the Bill receives the
Royal Assent.
Clause 3
inserts a new Part 9C into the Corrections Act 1986
("PART 9C—PRISONER COMPENSATION QUARANTINE
FUNDS"). New Part 9C includes 6 Divisions regarding,
respectively, introductory matters, awards of damages to
prisoners, payment of money to prisoner compensation
quarantine fund, notice of prisoner compensation quarantine
fund, payments out of prisoner compensation quarantine fund
and general matters.
Division 1–Introductory
New section 104O creates definitions of the following terms—
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
agreement;

award of damages;

civil wrong;

claim;

court;

criminal act;
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BILL LA INTRODUCTION 30/7/2008

damages;

family member;

initial quarantine period;

prisoner;

prisoner compensation quarantine fund;

quarantine period;

State;

victim.
For the purposes of the new Part agreement includes compromise
and acceptance of an offer of compromise.
For the purposes of the new Part an award of damages means
damages—

awarded pursuant to a judgment of a court; or

paid or payable in accordance with an agreement
between the parties to the agreement.
For the purposes of the new Part a civil wrong means an act or
omission of the State—

that gives rise to a claim by a prisoner against the State;
and

that occurred while the claimant was a prisoner detained
in custody in a prison; and

that arose out of and in connection with his or her
detention in custody in a prison.
For the purposes of the new Part claim means a claim brought in
tort, in contract or under statute or otherwise.
The new section 104Q defines a criminal act.
For the purposes of the new Part damages includes any form of
monetary compensation.
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For the purposes of the new Part family member has the same
meaning as in section 30A of the Corrections Act 1986.
In section 30A family member, in relation to a person, means
that person's—

spouse or domestic partner;

child or step-child aged 18 years or more;

parent, step-father, step-mother or legal guardian;

brother, sister, step-brother or step-sister aged 18 years
or more;

grandparent;

grandchild aged 18 years or more;

uncle or aunt;

niece or nephew aged 18 years or more;

father-in-law, mother-in-law, son-in-law, daughter-inlaw, brother-in-law or sister-in-law aged 18 years or
more.
For the purposes of the new Part initial quarantine period in
relation to a prisoner compensation quarantine fund, means the
period of 12 months following the publication in the Government
Gazette of the notice in respect of the fund under section 104Y.
For the purposes of the new Part prisoner includes former
prisoner.
For the purposes of the new Part prisoner compensation
quarantine fund has the meaning given in section 104V.
For the purposes of the new Part quarantine period in relation to
a prisoner compensation quarantine fund relating to a prisoner,
means—

the initial quarantine period; and

the period ending on the final determination of all legal
proceedings by victims against the prisoner which are
commenced within the initial quarantine period and
which are notified to the Secretary under
section 104ZE(1).
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For the purposes of the new Part State includes—

the Secretary; and

a contractor responsible for the management or
operation of a prison; and

any employee of the Crown or of a person referred to in
paragraph (a) or (b).
Under section 3 of the Corrections Act 1986 Secretary means
Secretary to the Department of Justice under the Public
Administration Act 2004 and includes a person acting as the
Secretary to the Department of Justice under that Act.
For the purposes of the new Part victim has the meaning given in
section 104R.
New section 104P specifies the application of the new Part.
New section 104Q states the meaning of criminal act.
New section 104R states the meaning of victim.
Division 2—Awards of damages to prisoners
The new section 104S provides that an agreement between the
State and a prisoner for the payment of damages for a civil wrong
is of no effect until approved by a court.
Subsection (1) of the new section 104T requires that an award
of damages for a civil wrong must specify the amounts, if any,
agreed in respect of existing and future medical costs and legal
costs. Subsection (2) provides that where the State and a prisoner
cannot agree on any amount to be specified under subsection (1),
the court must specify those amounts and the agreement is varied
accordingly.
The new section 104U specifies factors a court must consider.
Subsection (1) applies the section to an award of damages by a
court for a civil wrong and to an agreement between the State and
a prisoner for the payment of damages for a civil wrong.
Under subsection (2) of the new section 104U a court must not
make an award of damages or approve an agreement unless it is
satisfied of the following matters—

section 104T(1) has been complied with;

that, in all the circumstances, the amounts specified
under section 104T(1) are appropriate portions of the
total amount payable under the award or agreement
having regard to the claim, the loss or damage suffered
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by the prisoner and the need to ensure as far as possible
that victims are not deprived of an opportunity to
enforce a successful claim for damages against a
prisoner.
Where legal costs are to be assessed and paid under an order
made on taxation, subsection (3) of the new section 104U
provides those legal costs are taken under this Part to be specified
in the award of damages.
Division 3—Payment of money to prisoner
compensation quarantine fund
Subsection (1) of the new section 104V requires an award of
damages to a prisoner in respect of a civil wrong to be paid
immediately to the Secretary after the damages are awarded.
Subsection (2) of the new section 104V excludes from the
amount to be paid any amount attributable to existing and future
medical costs and legal costs.
Under subsection (3) of the new section 104V, an amount paid to
the Secretary under subsection (1)—

must be held in trust for the prisoner by the Secretary
during the quarantine period and until the final payment
is made out of the prisoner compensation quarantine
fund in accordance with this Part; and

may be paid out of the prisoner compensation
quarantine fund only as authorised by this Part.
Under subsection (4) of the new section 104V money held by the
Secretary in trust for a prisoner constitutes a prisoner
compensation quarantine fund.
Subsection (5) of the new section 104V excludes the operation of
this section if the amount that would be required to be paid to the
Secretary does not exceed $10 000.
Under subsection (1) of the new section 104W a prisoner
compensation quarantine fund consists of any amount held by the
Secretary in trust for a prisoner under this Part and any interest
earned on that money.
Subsection (2) of the new section 104W requires the Secretary to
deposit all money in a prisoner compensation quarantine fund
into an interest-bearing account with an ADI. Under section 38
of the Interpretation of Legislation Act 1984 ADI is defined as
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an authorised deposit-taking institution within the meaning of the
Commonwealth Banking Act 1959.
Subsection (3) of the new section 104W specifies that only the
following amounts may be paid out of the prisoner compensation
quarantine fund—

amounts required to be paid out to any person in
accordance with section 104ZG or 104ZH;

amounts required to be paid out in accordance with
section 104ZJ in respect of the prisoner; and

the costs of administration of the fund (including any
taxes payable).
Under subsection (4) of the new section 104W the Secretary may
only pay out of a prisoner compensation quarantine fund the
costs of administration of the fund if that payment would not
decrease the level of the fund below the amount of damages paid
into the fund.
Subsection (5) of the new section 104W makes the Secretary
responsible for the administration of the prisoner compensation
quarantine fund.
Division 4—Notice of prisoner compensation
quarantine fund
Subsection (1) of the new section 104X provides that a victim in
relation to a criminal act by a prisoner may apply to the Secretary
to be notified of an award of damages to the prisoner.
Subsection (2) requires the application to be in writing.
Under subsection (1) of the new section 104Y the Secretary must
publish a notice advising of an award of damages to a prisoner as
soon as practicable after the amount of damages is paid to the
Secretary under section 104V. Subsection (2) requires that a
notice must—

state that the award of damages has been made to the
prisoner in a claim against the State but must not state
the amount of the award of damages;

state the name of the prisoner and any other names by
which the prisoner is known;

state that money in that award has been paid to a
prisoner compensation quarantine fund;
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
state the initial quarantine period for that fund;

invite victims in relation to criminal acts of the prisoner
to seek further information from the Secretary about the
fund;

contain contact details for seeking that further
information.
Subsection (3) of the new section 104Y requires the Secretary to
publish the notice in the Government Gazette, a daily newspaper
circulating generally in Victoria and a daily newspaper
circulating generally in Australia. The initial quarantine period
commences upon the publication of the notice in the Government
Gazette.
Subsection (4) of the new section 104Y authorises the Secretary
to publish a notice on the Internet.
New section 104Z authorises the Secretary to forward a copy of
the notice under section 104Y in respect of an award of damages
to a prisoner to any victim who has applied to the Secretary under
section 104X to be notified of an award of damages in respect of
the prisoner.
Subsection (1) of the new section 104ZA provides that a victim
in relation to a criminal act by a prisoner may apply to the
Secretary for information about a prisoner compensation
quarantine fund with respect to that prisoner within the initial
quarantine period in respect of that fund.
Under subsection (2) of the new section 104ZA if the Secretary is
satisfied the applicant is a victim in relation to a criminal act of a
prisoner the following information may be disclosed in a written
notice—

the amount of the award paid into the prisoner
compensation quarantine fund in respect of the prisoner;

the start of the initial quarantine period;

the end of the initial quarantine period if no legal
proceedings are notified under section 104ZE(1);

any other information that the Secretary from time to
time believes will assist the victim to make an informed
decision as to whether to bring proceedings against the
prisoner.
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In addition to the above information, subsection (3) of the new
section 104ZA requires the notice to include a statement advising
the victim—

that the information is disclosed solely for use by the
victim in deciding whether or not to bring legal
proceedings; and

that the victim should consider seeking independent
legal advice; and

that the information provided by the Secretary does not
constitute legal advice or a recommendation to bring or
not to bring legal proceedings; and

of the effect of sections 104ZC and 104ZD.
New section 104ZB provides that the disclosure of information
by the Secretary under new sections 104Y, 104Z or 104ZA is
authorised despite any agreement to which the Secretary is a
party that would otherwise prohibit or restrict the disclosure of
information concerning an award of damages. The disclosure of
information in such circumstances does not constitute a
contravention of such an agreement.
New section 104ZC requires a person to whom information is
provided under section 104Y, 104Z or 104ZA by the Secretary to
treat that information in an appropriate manner that respects the
confidentiality of that information.
Subsection (1) of the new section 104ZD creates an offence in
relation to a person to whom information is disclosed under
section 104Y, 104Z or 104ZA where that person discloses that
information to any other person except for the purposes of, or
in connection with, the taking and determination of legal
proceedings by the person against the prisoner concerned.
The offence is punishable by a fine of up to 60 penalty units.
Subsection (2) of the new section 104ZD creates an offence in
relation to a person who becomes aware of the information
disclosed under section 104Y, 104Z or 104ZA and who uses that
information or discloses it to any other person. The offence is
punishable by a fine of up to 60 penalty units in the case of a
natural person and 1200 penalty units in the case of a body
corporate.
Subsection (3) of the new section 104ZD excludes the operation
of the offence in subsection (1) where the person to whom
information is disclosed under section 104Y, 104Z or 104ZA
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discloses that information to a lawyer in the course of consulting
that lawyer for legal advice.
Subsection (4) of the new section 104ZD excludes from the
operation of the offences in subsections (1) and (2) information
that is in the public domain.
Subsection (1) of the new section 104ZE provides that a victim
who commences legal proceedings for the recovery of damages
against a prisoner within the initial quarantine period may notify
the Secretary in writing of that fact.
Subsection (2) of the new section 104ZE provides that a victim
may give written notice to the Secretary of the final
determination of the legal proceedings notified by the victim
under subsection (1) and of any amount awarded to the victim in
those proceedings within 14 days after the final determination of
the proceedings.
Subsection (1) of the new section 104ZF allows any person who
has a judgment debt against the prisoner or who is entitled under
any enactment to payment of an amount by the prisoner and who
has not recovered that judgment debt or been paid that amount to
give notice to the Secretary of that fact.
Subsection (2) of the new section 104ZF requires a notice under
subsection (1) to be in writing, be accompanied by a copy of any
relevant document that substantiates the facts set out in the notice
and be given during the quarantine period.
Under subsection (3) of the new section 104ZF the Secretary may
require a person who has given a notice to provide any further
information that the Secretary reasonably requires to substantiate
the facts set out in the notice.
Division 5—Payments out of prisoner compensation
quarantine fund
Under subsection (1) of the new section 104ZG the section
applies if the Secretary has received a notice under section
104ZE(1) in respect of legal proceedings against a prisoner to
whom a prisoner compensation quarantine fund relates.
Subsection (2) of the new section 104ZG prevents the Secretary
from paying any money out of the prisoner compensation
quarantine fund to any person until the end of the quarantine
period for the fund.
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Under subsection (3) of the new section 104ZG the Secretary
must within 45 days after the end of the quarantine period pay
out of the prisoner compensation quarantine fund to the persons
entitled to payment any amounts required to satisfy—

any award against the prisoner that was notified to the
Secretary under section 104ZE(2); and

any judgment debt against, or entitlement to be paid by,
the prisoner that was notified to the Secretary under
section 104ZF—
that the Secretary is satisfied is a valid claim on the prisoner.
Under subsection (4) of the new section 104ZG if the amount in
the prisoner compensation quarantine fund is not sufficient to pay
the amounts required to be paid out under subsection (3), the
Secretary must make payments from the fund under that
subsection on a pro rata basis having regard to any priority of
payment required by law.
Under subsection (5) of the new section 104ZG if any amount
remains in the prisoner compensation quarantine fund after all
amounts are paid out under subsection (3), the Secretary must
pay the remaining amount to or at the direction of the prisoner
within, or as soon as practicable after the end of, the period of
45 days after the end of the quarantine period.
Under subsection (1) of the new section 104ZH the section
applies if the Secretary has been given notice by a person under
section 104ZF in respect of a prisoner and has not been notified
under section 104ZE(1) of legal proceedings against that
prisoner.
Subsection (2) of the new section 104ZH prevents the Secretary
from paying any money out of the prisoner compensation
quarantine fund to any person until the end of the initial
quarantine period for the fund.
Under subsection (3) of the new section 104ZH the Secretary
must within 45 days after the end of the initial quarantine period
pay out of the prisoner compensation quarantine fund to the
persons entitled to payment any amounts required to satisfy any
judgment debt against, or entitlement to be paid by, the
prisoner—

that was notified to the Secretary under section 104ZF
during the initial quarantine period; and

that the Secretary is satisfied is a valid claim on the
prisoner.
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Under subsection (4) of the new section 104ZH if the amount in
the prisoner compensation quarantine fund is not sufficient to pay
the amounts required to be paid out under subsection (3), the
Secretary must make payments from the fund under that
subsection on a pro rata basis having regard to any priority of
payment required by law.
Under subsection (5) of the new section 104ZH if any amount
remains in the prisoner compensation quarantine fund after all
amounts are paid out under subsection (3), the Secretary must
pay the remaining amount to or at the direction of the prisoner
within, or as soon as practicable after the end of, the period of
45 days after the end of the initial quarantine period.
New section 104ZI provides that sections 104ZG(2) and
104ZH(2) do not affect the payment out of the prisoner
compensation quarantine fund under section 104W of the costs
of administration of the fund.
Subsection (1) of the new section 104ZJ applies this section if
no notice is given to the Secretary under section 104ZE(1) or
section 104ZF in relation to the prisoner to whom a prisoner
compensation quarantine fund relates within the initial quarantine
period.
Under subsection (2) of the new section 104ZJ the Secretary
must pay all money in the prisoner compensation quarantine fund
to or at the direction of the prisoner within 45 days after the end
of the initial quarantine period.
Under the new section 104ZK the payment by the Secretary of
an amount out of a prisoner compensation quarantine fund in
accordance with this Part is taken to be a payment at the direction
of the prisoner and operates as a discharge, to the extent of the
payment, of any liability of the State or the Secretary to pay the
amount to the prisoner as damages.
Subsection (1) of the new section 104ZL establishes that for the
purposes of the new Part legal proceedings are not finally
determined if—

any period for bringing an appeal in respect of the
proceedings has not expired (ignoring any period that
may be available by way of extension of time to
appeal); or

any appeal in respect of the legal proceedings is
pending.
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Under subsection (2) of the new section 104ZL legal proceedings
are taken to be finally determined if the legal proceedings are
settled or discontinued.
Division 6—General
New section 104ZM creates an offence where a person gives
information to the Secretary under the new Part that they believe
to be false or misleading in any material particular.
New section 104ZN requires the Secretary to the Department of
Justice to provide an annual report on the operation of the new
Part to the Minister for Corrections and the Attorney-General.
Clause 4
amends section 4(1) of the Corrections Act 1986 by including a
reference to the new Part 9C. The amended provision deems
certain references to prisons to include a reference to a transition
centre.
Clause 5
amends section 30(3)(dc) of the Corrections Act 1986 to ensure
the disclosure of information under the new Part 9C does not
constitute a breach of the confidentiality provision in
section 30(2).
Clause 6
amends section 112(1) of the Corrections Act 1986 to allow the
Governor in Council to make regulations for or with respect to
the purposes of the Bill.
Clause 7
inserts a new section 117 in the Corrections Act 1986.
New section 117 operates as a transitional provision to apply the
new Part 9C to an award of damages made to a prisoner against
the State on or after the commencement of the new Part 9C even
if legal proceedings were commenced by the prisoner before that
commencement.
Clause 8
provides for the automatic repeal of this amending Bill on the
first anniversary of the day on which it receives the Royal
Assent. The repeal of this Bill does not affect in any way the
operation of the amendments made by this Act (see section 15(1)
of the Interpretation of Legislation Act 1984).
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