Criminal Law Amendment Act 1945

The Act relies on several key definitions. Section 2A provides that an "offence of a sexual nature" includes any offence constituted wholly or partly by an act whereby the offender has exhibited a failure to exercise proper control over the offender’s sexual instincts, any offence in the circumstances associated with the committal whereof the offender has exhibited such failure, and includes an assault of a sexual nature. This is a broad definition extending beyond listed offences to any conduct evidencing a failure of sexual instinct control. The section is to be read as one with the Criminal Code and the Justices Act 1886. The definition of "corrective services facility" is imported from the Corrective Services Act 2006 schedule 4.

Central to Part 3 is the concept of "incapable of exercising proper control over the offender’s sexual instincts". This is a medical-legal determination made by two or more medical practitioners after personal examination and observation, reference to depositions and other records. The judge makes the ultimate decision but must consider the matters reported to be proved. The "institution" for detention under section 18 means a corrective services facility or watch-house, or another institution prescribed under a regulation. "Release" under Part 3 means unconditional release and does not include release under Part 3A (conditional release). Detention during Her Majesty’s pleasure is indefinite, subject only to the Governor in Council being satisfied on the report of two medical practitioners that release is expedient (section 18(5)(b)) or that the person is fit to be at liberty (section 18(6A)(b) for subnormal condition cases). The same medical examination regime applies: every detainee must be examined at least once every three months by the chief psychiatrist or a medical practitioner appointed by the chief psychiatrist. Reports must be furnished to the chief psychiatrist forthwith.

Part 3A introduces the concept of a "detainee" defined as an offender or prisoner detained during Her Majesty’s pleasure under a direction under section 18(3), (4) or (6). The conditional release mechanism treats the detainee as if they were a prisoner serving a notional term of life imprisonment for the purposes of the Corrective Services Act 2006 chapter 5. For detainees whose detention began at the end of an original term of imprisonment, the notional term is deemed to have commenced when the original term began. For those whose detention began when the judge ordered it, the notional term commences at that point. A modified parole eligibility period applies: 15 years, reduced to 13 years if the relevant offence was committed before 1 July 1997. The Act expressly prohibits detainees from applying for or being granted an exceptional circumstances parole order.

Part 4 (sections 19-22K) introduces "public interest declaration", "detained person", "relevant person", "relevant event". A "relevant person" is a person subject to a continuing detention order under DPSOA, or, if the person was subject to a continuing detention order immediately before the supervision order was made, a person subject to a supervision order. This captures only those who have already been through the DPSOA regime. "Public interest declaration" means a declaration under section 21(1) that a relevant person must be detained under division 3 of Part 4. "Continuing detention order" and "supervision order" have the meanings given under DPSOA. "Institution" for Part 4 means a corrective services facility or an institution prescribed for section 18(14) definition institution paragraph (b). "Relevant event" means the declaration stops applying because of a Governor in Council declaration under section 22F or a Supreme Court determination of jurisdictional error. Section 22L confirms terms defined in section 19 have the same meaning in Part 4A.

The Act also creates a "probation order" concept under Part 2, being a recognisance containing a supervision condition. Probation officers may be appointed by the Governor in Council; for offenders under 18, the supervisor should be a children’s probation officer absent good reason to the contrary. Voluntary societies may nominate agents to act as supervisors.

The Act directly affects offenders convicted of offences of a sexual nature. For Part 2, any offender convicted of such an offence and ordered to enter into a recognisance under section 656 of the Criminal Code may be made subject to a probation order with supervision conditions. This affects both convicted persons and the courts (including magistrates) that make such orders.

Part 3 primarily affects persons found guilty of an offence of a sexual nature committed upon or in relation to a child under 16 years. This includes both those convicted on indictment and those summarily convicted. The provision also extends in section 18(4) to persons serving a sentence of imprisonment for an offence of a sexual nature regardless of the victim’s age, if two medical practitioners report to the Attorney-General that the person is incapable of controlling sexual instincts, that incapacity is curable by continued treatment, and detention after sentence is desirable. This means adult offenders against adults can also be captured if the medical criteria are met. Section 18(11) allows retrospective application of Part 3 to any offender found guilty of a sexual offence against a child under 16 before the passing of the Act (1945) who was then undergoing or subject to imprisonment for that offence.

Part 3A affects detainees (offenders or prisoners detained during Her Majesty’s pleasure under section 18(3), (4) or (6)). It provides them a pathway to conditional release via parole under the Corrective Services Act 2006, but also imposes additional restrictions and tests.

Part 4 affects persons subject to existing DPSOA orders - either continuing detention orders or supervision orders. It captures those who have already been adjudged dangerous under the DPSOA regime and allows the Executive to further detain them in the public interest without the usual DPSOA review mechanisms (though annual administrative review is required). This impacts prisoners, detainees, and the legal representatives who must navigate the interaction between the two regimes.

Probation officers appointed under the Act, as well as children’s probation officers, are affected in their duties and remuneration. The Act also affects medical practitioners who may be directed to conduct inquiries and examinations under section 18 and section 22C. Psychiatrists in particular are required to conduct annual examinations for Part 4 detainees and tri-monthly examinations for Part 3 detainees (section 18(8)). The chief psychiatrist has responsibilities under section 18(8) and (8A) regarding examinations and receipt of reports.

The Governor in Council is affected by obliging them to make decisions regarding appointment of probation officers, direction as to institutions for detention, and satisfaction as to release reports. The Minister is affected under Part 4 by having to make recommendations, consider reports, and provide annual reviews. The Attorney-General is affected by having to receive reports from medical practitioners, bring applications under section 18(4), and receive submissions from the Queensland Parole Board under section 18D. The Queensland Parole Board has specific functions under Part 3A including the additional test under section 18E and the duty to give the Attorney-General a copy of parole applications.

Public officials (Minister, chief executive corrective services, persons acting under authority of Part 4) are affected by the protection from liability under section 22R, which applies to acts done honestly and without negligence for the operation of Part 4. The State is affected as the entity to which liability attaches if the protection applies.

Probation officers under Part 2 have statutory duties: to visit or receive reports from the person under supervision at reasonable intervals as specified in the probation order or as the officer thinks fit, to see that the person observes the conditions of their recognisance, to report the person’s behaviour to the court or justices, and to advise, assist and befriend the person, and when necessary to endeavour to find the person suitable employment. These duties are subject to the direction of the court or justices. Probation officers also have a right to be paid salary or remuneration as directed by the Governor in Council, and to be paid out-of-pocket expenses.

Offenders subject to Part 2 are required to comply with the conditions of their recognisance, including supervision by the named person. The court or justices have the duty to determine whether to impose the probation order condition and to specify the supervising person and period.

Under Part 3, medical practitioners directed to inquire must conduct the inquiry by means of personal examination and observation, and by reference to depositions and other records they think necessary. They must give their report on oath to the judge. They have a duty to report truthfully and are subject to cross-examination by the offender.

Offenders have the right under section 18(3A) to cross-examine the medical practitioners in relation to their report and to call evidence in rebuttal. The judge cannot make an order unless they consider the matters reported to be proved. This is a procedural safeguard.

Detainees under section 18 have a right to be examined at least once every three months by the chief psychiatrist or appointed medical practitioner. The examining practitioner must furnish a report to the chief psychiatrist forthwith. The Act does not specify a right for the detainee to receive that report, but it is implied for the purposes of any potential application for release.

Under Part 3A, the Queensland Parole Board must give the Attorney-General a copy of any parole application by a detainee. The Attorney-General may make written submissions, which the board must consider when deciding whether to grant the application. The board must be satisfied the detainee does not represent an unacceptable risk to the safety of others before granting a parole order (section 18E), an additional test beyond those in the Corrective Services Act 2006.

Under Part 4, the Minister has duties: to recommend to the Governor in Council on public interest declarations, to ensure annual psychiatric examinations are conducted (section 22C), to consider the annual report and make a recommendation to the Governor in Council as to whether detention should continue (section 22E), and to give the person a reasonable opportunity to make submissions before that recommendation. The Minister cannot recommend a declaration for a person on a supervision order unless 14 days written notice is given and the person has an opportunity to make submissions within 10 days, subject to urgent circumstances.

The Governor in Council cannot make a public interest declaration unless appeals under DPSOA Part 4 have been finally dealt with or the appeal period has ended. The Governor in Council also has the power to end detention by gazette notice if satisfied detention is no longer in the public interest (section 22F).

Detained persons under Part 4 must submit to annual examinations by two appointed psychiatrists (section 22C(2)). They have a right to receive a copy of the psychiatric report (section 22D). They have a right to make submissions to the Minister before the Minister’s recommendation on continued detention (section 22E(3)(c)).

Protection from liability is conferred on public officials (Minister, chief executive corrective services, persons acting under authority of Part 4) for acts done honestly and without negligence for the operation of Part 4. Liability attaches instead to the State (section 22R).

The Act itself does not create new criminal offences with penalties. It operates as a sentencing and detention regime. Enforcement arises primarily through the deprivation of liberty: detention during Her Majesty’s pleasure under Part 3 is indefinite, lasting until the Governor in Council is satisfied by medical report that release is expedient or that the person is fit to be at liberty. This is effectively a form of preventive detention, not punitive in character but resulting in loss of liberty.

Under Part 3A, a detainee released on parole who breaches conditions may face revocation and return to detention under the Corrective Services Act 2006. Section 18G declares that a detainee released under Part 3A is a prisoner for the purposes of Corrective Services Act 2006 section 124(k) (offence of being unlawfully at large), meaning the ordinary criminal consequences for escaping custody or failing to return after parole apply.

Under Part 4, the effect of a public interest declaration is mandatory detention in an institution. Section 22B(4) provides that if the person is not already detained under DPSOA when the declaration is made, a police officer may arrest the person without warrant and take them to an institution or watch-house for detention. This is a significant enforcement power exercisable without judicial warrant, grounded solely in the Executive declaration.

Failure by a detained person under Part 4 to submit to required annual psychiatric examinations is not given a specific penalty but results in practical consequences: the report cannot be prepared, which may affect the annual review and the Minister’s ability to recommend ending detention. The Act does not provide an express penalty for refusal, but the person remains detained.

For medical practitioners, there is no specific penalty under this Act for failure to report, though duties are imposed. The Act does not penalise failure to give reports or information under section 22C(6), but the provision authorises requiring the information despite other laws, and gives protection from liability. Non-compliance could potentially be addressed through other legal avenues.

The Act also has no specific penalties for probation officers failing in their duties under Part 2. Performance of duties is subject to direction of the court or justices, and failure could lead to court direction or removal.

The most significant enforcement provision is the ability of the Governor in Council to make orders for detention, and the ouster clause in section 22K which makes certain decisions (Minister’s recommendation, Governor in Council decision to make or not make a declaration) final and conclusive, not challengeable except for jurisdictional error under Judicial Review Act 1991 Part 5. This prevents ordinary merits review or declaratory relief, effectively shielding the enforcement decisions from most forms of challenge.

The Act is explicitly to be read as one with the Criminal Code and the Justices Act 1886 by virtue of section 2A(2). This means the definitions and procedural provisions of those Acts apply to the interpretation and operation of this Act. The probation order regime in Part 2 directly references section 656 of the Criminal Code, which deals with recognisances.

Part 3A is expressly modelled on the Corrective Services Act 2006. Section 18B applies chapter 5 of that Act (parole) to detainees as if they were prisoners serving a notional life sentence, with modifications. Section 18F allows additional parole conditions. Section 18G declares detainees are prisoners for the purposes of section 124(k) of the Corrective Services Act (unlawfully at large). The Act interacts with the Corrective Services Act 2006 also through section 18(9A), which applies section 68 of that Act (removal of prisoners) to Part 3 detainees with necessary modifications.

Part 4 interacts heavily with the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA). Section 22B(2)(a) provides that while a public interest declaration has effect, DPSOA does not apply to the person. The person must no longer be detained or subject to supervised release under DPSOA. When the declaration ends, the DPSOA order revives (section 22G, section 22O). The Act also references DPSOA Part 2 division 4 (amendment of supervision orders) and division 4A (further supervision orders). Section 22H requires the Attorney-General to apply for review under DPSOA section 27 when a continuing detention order revives and review period has passed. Similarly, Part 4A division 2 provides analogous revival mechanisms for when a declaration ceases other than by Governor in Council or jurisdictional error.

The Act interacts with the Mental Health Act 2016 through the definition of "chief psychiatrist" in section 18(14), which refers to schedule 3 of that Act. The Health Practitioner Regulation National Law is referenced for the qualification of medical practitioners: in section 18(1)(a) the judge must name a psychiatrist registered as a specialist if reasonably available, and in section 18(4) one of the two reporting medical practitioners must be such a psychiatrist. Section 22C(10) defines "psychiatrist" for Part 4 similarly.

The Hospital and Health Boards Act 2011 is referenced in section 18(9): the chief executive of the department in which that Act is administered may order removal of a detainee to another institution.

The Act interacts with the Child Protection (Offender Reporting) Act 2004 via Part 5 (section 23), which terminated previous reporting orders under former Part 4 and transferred obligations to that Act.

The Corrective Services Act 2006 is cross-referenced for definitions of "corrective services facility" and "parole order" (sections 2A, 18A). The Queensland Parole Board is defined under section 18A by reference to that Act.

The Act interacts with the Judicial Review Act 1991 through section 22K: Part 4 of the Judicial Review Act does not apply to certain decisions, but Part 5 (jurisdictional error) does apply. This limits but does not entirely exclude review.

The Act also contains a specific provision (section 22C(7)) that the requirement to give reports or information to the chief executive operates despite any other law to the contrary or any duty of confidentiality. This overrides other statutory or common law confidentiality obligations, and section 22C(8) gives immunity from civil, criminal and administrative liability for providing such information, with section 22C(9) confirming that section 22R (the general protection from liability) does not apply in those circumstances.

The Act originated in 1945 (9 Geo 6 No 10). Amendments have been numerous. Section 2 was omitted in 1989 by Reprints Act amendment. Section 2A was inserted in 1946 (11 Geo 6 No 6) and subsequently amended in 2002 (No 23) by schedule reference. The definition of "corrective services facility" was inserted in 2013 (No 53 section 4). Part 2 (section 17) was amended in 2004 (No 52 section 89) and 2016 (No 58 schedule 1). Part 3 (section 18) has a long amendment history: 1946, 1989 (No 17), 1997 (No 82), 1998 (No 41), 1999 (No 87), 2000 (No 63), 2001 (No 7), 2002 (No 23), 2006 (No 29), 2008 (No 5), 2010 (No 14), 2011 (No 32), 2013 (No 53), and 2016 (No 5). This reflects ongoing legislative attention to the indefinite detention regime.

Part 3A was inserted in 2002 (No 23 section 36) and amended in 2006 (No 29) and 2008 (No 55). Section 18A definitions were amended in 2006 and 2017. Section 18B was amended in 2006 and 2012. Section 18C was amended in 2006. Section 18D in 2006. Section 18E in 2006. Section 18F in 2006. Section 18G in 2006. Section 18H was substituted in 2008 (No 55 section 127), having been inserted in 2002.

Part 4 (sections 19-22K) was inserted in 2013 (No 53 section 6), replacing a previous Part 4 (inserted 1989) that dealt with reporting orders and was repealed in 2004. The former sections 19, 19A, 19B, 20, 21, 22 were omitted in 2004. The current Part 4 creates the public interest declaration scheme. Section 22B was amended in 2020 (No 23 schedule 1). Part 4A (sections 22L-22R) was also inserted in 2013.

Part 5 (section 23) was originally inserted in 1999 (No 87 section 8) and substituted in 2004 (No 52 section 91) to deal with the repeal of the former reporting order regime. Sections 24 and 25 were inserted in 2003 (No 3) and omitted in 2004.

The source text does not name any cases. The Act has likely been the subject of constitutional and administrative law challenges, particularly regarding the indefinite detention provisions under Part 3 and the public interest declaration scheme under Part 4. The ouster clause in section 22K expressly preserves review for jurisdictional error under the Judicial Review Act 1991 Part 5, indicating awareness of potential litigation. The section 18 provisions have been in force since 1945 and have likely generated case law on the meaning of "incapable of exercising proper control over the offender’s sexual instincts" and the procedural rights of cross-examination and rebuttal. The interaction with DPSOA has likely produced litigation about when a public interest declaration can be made, the standard of review, and the revival of DPSOA orders. The provision in section 18(13) deeming a direction for detention to be a sentence for appeal purposes under Criminal Code chapter 67 likely generated appeals by the Attorney-General against refusal to direct detention. The conditional release provisions in Part 3A have likely been the subject of parole board decisions and potential judicial review, though the additional test in section 18E limits discretion. No specific cases are mentioned in the source text.

Several features of the Act require careful attention. The definition of "offence of a sexual nature" in section 2A is extremely broad. It catches any offence constituted by an act where the offender exhibited a failure to exercise proper control over sexual instincts, and any offence in circumstances associated with the commission whereof the offender exhibited such failure. This includes assaults of a sexual nature. It is not limited to sexual offence labels - any criminal offence could potentially fall within the definition if the circumstances indicate a failure of sexual instinct control. This has significant implications for who can be subjected to the Part 3 regime.

The "corrective services facility" definition is imported from the Corrective Services Act 2006 schedule 4, which includes prisons and similar facilities. "Institution" for Part 3 includes corrective services facilities, watch-houses, and other institutions prescribed by regulation. This means a person can be detained in a watch-house, which is typically a short-term remand facility, potentially for long periods while awaiting a Governor in Council direction as to the institution.

Under section 18(1)(a), the judge can only direct a medical inquiry involving a psychiatrist "where the judge is of opinion that the services of such a person are reasonably available". If psychiatric services are not reasonably available, the inquiry may proceed with only non-psychiatrist medical practitioners. This could affect the quality of assessment.

Part 3 contains a significant overlap with Part 3A. Section 18(5)(b) provides for unconditional release only when the Governor in Council is satisfied on the report of two medical practitioners that it is expedient to release. Section 18H, however, provides that a detainee who has been released under Part 3A (conditional release) can never be released under the unconditional release provisions. This creates a permanent bar on unconditional release for those who obtain parole, meaning they remain subject to supervision and potential revocation indefinitely.

The three-monthly examination requirement under section 18(8) applies to all detainees under Part 3 except those released under Part 3A. Failure to conduct these examinations does not invalidate the detention, but may be relevant to any challenge.

Part 4 contains several procedural traps. The Minister may recommend a public interest declaration for a person subject to a continuing detention order without any prior notice (section 22(2)). For those on supervision orders, 14 days notice is required unless the Minister considers urgent circumstances necessitate dispensing with notice (section 22(4)). The person can only make written submissions within 10 days of service, not oral submissions. The declaration is of no effect until personal service of the notice under section 22A, but once served, it takes effect immediately.

Section 22K provides a very strong ouster clause. Decisions of the Minister and Governor in Council regarding declarations and their ending are final and conclusive, cannot be challenged, appealed against, reviewed, quashed, set aside or called in question in any way under the Judicial Review Act or otherwise, and are not subject to declaratory, injunctive or other orders. However, this is subject to subsection (4) which preserves review under Judicial Review Act Part 5 for jurisdictional error. This means only jurisdictional error can be grounds for challenge; error of fact or merits is excluded. The practical effect is that a person seeking to challenge a public interest declaration must identify a jurisdictional error and bring proceedings under Part 5, not ordinary judicial review.

Section 22B(2) makes the person a prisoner under the Corrective Services Act 2006 but excludes chapter 2 part 2 division 11 and chapter 5. This means certain provisions about prisoner management and parole do not apply, reinforcing that the person is not on the ordinary prison parole pathway while detained under Part 4.

When a public interest declaration ends by Governor in Council declaration under section 22F, the DPSOA order revives (section 22G). But if the original order was a supervision order whose stated period has passed, it cannot revive. The Attorney-General must seek a further supervision order under section 22J, which can only be applied for before the relevant event or as soon as practicable after. If not done in time, the person may be released without any supervision.

The Act does not provide for periodic automatic court review of Part 4 detention. The review is conducted by the Minister and Governor in Council, not a court, with very limited judicial oversight. This distinguishes Part 4 from Part 3, where the original decision is made by a Supreme Court judge after a medical inquiry with procedural safeguards.

Section 22R protects public officials from civil liability for acts done honestly and without negligence for the operation of Part 4, shifting liability to the State. This does not protect against criminal liability or liability for bad faith or negligent acts.

Compliance obligations under the Act depend on the role of the person. For probation officers appointed under Part 2, compliance means performing the statutory duties: visiting or receiving reports at reasonable intervals, ensuring the supervised person observes recognisance conditions, reporting behaviour to the court, and providing advice, assistance and befriending. Record-keeping and regular reporting to the court are essential.

For courts and justices, compliance requires ensuring that any recognisance for a sexual offence includes a supervision condition if the court so orders, and that the nominated supervisor is a probation officer (or children’s probation officer for under-18s absent good reason). The court must specify the supervision period and any additional conditions for securing supervision.

For medical practitioners directed under section 18, compliance means conducting the inquiry by personal examination and observation, reviewing depositions and other records considered necessary, and providing a sworn report to the judge. The report must address the specific question of whether the offender is incapable of exercising proper control over sexual instincts. Practitioners must be prepared to give evidence on oath and be cross-examined. For those reporting under section 18(4) to the Attorney-General, the report must address all three criteria: incapacity, curability by continued treatment, and desirability of detention after sentence.

For the chief psychiatrist and appointed medical practitioners under section 18(8), compliance requires examining each detainee at least once every three months and furnishing a report forthwith to the chief psychiatrist. This is a mandatory obligation, not discretionary. The chief psychiatrist must ensure appointments are made and examinations occur.

For the chief executive (corrective services) under Part 4, compliance requires appointing two psychiatrists to conduct annual examinations of detained persons, ensuring those examinations occur, providing relevant reports and information to the psychiatrists, and upon request requiring persons in possession of relevant information to provide copies. The chief executive must also give copies of each annual report to the detained person, their legal representative, and the Minister as soon as practicable.

For the Minister under Part 4, compliance involves making recommendations to the Governor in Council only if satisfied detention is in the public interest, ensuring procedural requirements are met (14 days notice for supervision order persons unless urgent, consideration of submissions), and conducting annual reviews after receiving each annual report. The Minister must give the detained person a reasonable opportunity to make submissions and have regard to them.

For the Governor in Council, compliance means making public interest declarations only by gazette notice and only after appeals periods have ended or appeals have been finalised. Declarations to end detention must also be by gazette notice, and notice must be personally served. In making decisions about detention in the public interest, the Governor in Council may have regard to any matter considered relevant and is not limited by any other Act provision (section 20).

For the Queensland Parole Board under Part 3A, compliance requires giving the Attorney-General a copy of any parole application by a detainee, considering any Attorney-General submissions, and applying the additional test that the detainee does not represent an unacceptable risk to the safety of others before granting a parole order. The board may impose additional conditions requiring medical, psychiatric or psychological treatment or drug testing.

For detained persons, compliance requires submitting to required medical examinations under both Part 3 (three-monthly) and Part 4 (annual). Failure to submit may have consequences for release prospects. Persons subject to parole orders under Part 3A must comply with all conditions, including any additional treatment or testing conditions.

For persons in possession of relevant information under section 22C(6), compliance requires giving a copy of that information to the chief executive when asked, despite any other law or duty of confidentiality. The Act provides protection from civil, criminal and administrative liability for doing so, and section 22R does not apply to such disclosures.

For legal practitioners representing detained persons, compliance with procedural requirements involves ensuring notices are properly served, that submissions are made within timeframes (10 days for pre-declaration submissions under section 22(3)(a)(iii), reasonable opportunity for annual review submissions under section 22E(3)(c)), and that any applications for amendment of supervision orders or further supervision orders are made in a timely manner in accordance with sections 22I and 22J.