Dangerous Criminals and High Risk Offenders Act 2021

The Act defines several key concepts that structure its operation. A dangerous criminal is an offender in respect of whom a declaration under section 7(1) is in force, or an instrument under section 8 that is taken to be such a declaration (section 3(1)). The declaration can only be made if the offender has been convicted of a crime involving violence or an element of violence, specified in the DPP’s application, and the court is satisfied to a high degree of probability that the offender is a serious danger to the community (section 7(4)). Being a serious danger to the community includes being a serious danger only to some members of the community (section 7(5)). The DPP bears the onus of proving that element (section 7(3)). The court must consider specified matters in making that determination, including the nature and circumstances of each violent offence, the offender’s antecedents, age and character, the need to protect the community, any reports before the court, the risk if the offender is not imprisoned, and any other relevant matters (section 7(2)).

A relevant offender for Part 3 is an offender convicted of a serious offence, aged 18 or over, and in custody under a declaration, in custody under an order under Part 3, subject to an HRO or interim HRO order, or serving a custodial sentence for a serious offence or an offence under section 41 (breach of HRO order) or a concurrent/cumulative sentence (section 24). A serious offence is defined by reference to Schedule 1, which lists specific offences under the Criminal Code Act 1924 (such as murder, manslaughter, rape, penetrative sexual abuse of a child, kidnapping, aggravated armed robbery, arson) and under the Sex Industry Offences Act 2005 (procuring a child to provide sexual services). It also includes attempts to commit those offences, and offences under other laws that are substantially the same as listed offences (section 3(1)).

An HRO order is a high risk offender order made under section 35(1). It imposes mandatory conditions set out in section 38(1) and may impose discretionary conditions under section 38(2). The operational period of an HRO order cannot exceed 5 years (section 39(2)(a)). An interim HRO order under section 37(1) can be made if it appears the offender will cease to be in custody or subject to an existing HRO order before the final determination, and the matters alleged would if proved justify an HRO order. Its operational period must be at least 3 months and not more than 6 months, unless the court considers a longer period warranted (section 39(2)(b)). Consecutive interim HRO orders cannot total more than 6 months or a longer period determined by the court (section 39(8)). A pre-release order under section 13(3) or (4) is an order made during the review of a dangerous criminal declaration, setting requirements such as participating in rehabilitation programs, achieving certain results, or providing reports, to assist the court in determining whether the declaration should be discharged. The adjournment period for a pre-release order cannot exceed 12 months (section 13(9)). The risk assessment committee established by section 26 oversees the preparation of behavioural reports and management reports for Part 3, determines whether a risk assessment of a relevant offender should be carried out, and facilitates cooperation between relevant agencies.

The Act directly affects several categories of persons and bodies. Offenders are the primary subjects. For Part 2, these are offenders convicted of a crime involving violence or an element of violence who meet the criteria for a dangerous criminal declaration. For Part 3, these are relevant offenders convicted of a serious offence as defined in Schedule 1. Offenders may be subject to indefinite detention under a declaration until discharged, or to supervision under an HRO order for up to 5 years, with strict conditions. They have rights to be present at hearings (sections 6(4), 12(4)), to adduce evidence and cross-examine report authors (sections 6(5), 12(5)), to receive copies of reports (sections 5(3)(b), 11(3)(b), 20(3)), to apply for review of declarations in exceptional circumstances with leave (section 10(3)), to apply for variation or cancellation of HRO orders (section 40), and to appeal (sections 19, 23, 43). The DPP bears substantial responsibilities: applying for declarations (section 4), applying for reviews of declarations (section 10(1)), deciding whether to apply for HRO orders after receiving reports from the risk assessment committee (section 30), serving applications on offenders (sections 10(5), 33(5)), and appearing at hearings (sections 6(3), 12(3)). The DPP must also notify the Parole Board when a person becomes a relevant offender (section 32A(2)). The Supreme Court and Court of Criminal Appeal have jurisdiction over applications, reviews, pre-release orders, HRO orders, appeals, and variations. The court must apply the high degree of probability standard when making a dangerous criminal declaration (section 7(4)), discharging a declaration (section 15(1)), and making an HRO order (section 35(2)). The court must consider mandatory factors and give paramount consideration to community safety for HRO orders (section 36(1)). The Chief Psychiatrist may be ordered to provide reports on risk (sections 5(1)(b), 11(1)(b), 34(2)(a)) and is a member of the risk assessment committee (section 26(2)(g)). The DCS may be ordered to provide reports (sections 5(2)(a), 11(2)(a), 21(1)) and must ensure offenders have opportunities to attend programs ordered under pre-release orders (section 21(3)). The risk assessment committee consists of representatives from the Department, Corrections, Health, Disability, Police, and the Chief Psychiatrist, and must facilitate cooperation and information sharing (section 26). Relevant agencies include the Department, health departments, disability department, police, and any prescribed unit (section 25). They have a duty to cooperate with each other in performing dangerous offender functions (section 31). Probation officers supervise offenders subject to HRO orders and may direct attendance at programs (section 38(1)(c), (h)). Police officers have powers to enter premises, search, arrest for breach or suspected breach of HRO orders (section 42(4), (5)), and require electronic passwords (section 38(2)(h)). The Parole Board must disclose certain confidential information to the DPP about relevant offenders who apply for parole (section 32A(3)). Courts of petty sessions deal with breach of HRO order proceedings (section 41(2)).

The Act imposes a number of specific duties and confers corresponding rights on the parties and the court. Duty to apply for review: The DPP must apply for review of a dangerous criminal declaration within the timeframes in section 10(2) , within 12 months before all relevant custodial sentences expire, or at least once within the first three-year period after commencement if sentences have already expired, and at least once within each subsequent three-year period after a refusal to discharge. The DPP also has the duty to decide whether to apply for an HRO order after receiving reports under Part 3 (section 30(1)). Duty to serve documents: The DPP must serve a review application on the offender (section 10(5)(a)), and must serve an HRO application and accompanying documents on the offender within 7 days or such longer period as the court allows (section 33(5)). An offender applying for review must serve the DPP (section 10(5)(b)). For variation applications, both parties must serve notice within 7 days (section 40(2)). Duty to appear: The DPP, or counsel on behalf, must appear for the Crown at hearings of applications for declarations and reviews (sections 6(3), 12(3)). Rights of the offender: The offender is entitled to be present at the hearing of an application for declaration or review unless the court orders otherwise (sections 6(4), 12(4)). Both parties may adduce evidence (sections 6(5), 12(5), 34(6)). If a report is disputed, the disputing party is entitled to cross-examine the author, and the other party may examine in reply (sections 6(6), 12(6), 34(7)). The offender must be given copies of reports provided to the court under orders (sections 5(3)(b), 11(3)(b), 20(3), 21(2)). An offender subject to a declaration may apply for review with leave of the court on grounds of exceptional circumstances (section 10(3)). An offender subject to an HRO order may apply for variation or cancellation of the order (section 40(1)). Duty to submit to examination: The court may order an offender to submit to examination by a person preparing a report for the court (sections 5(4), 11(4), 34(4)). Duty to comply with orders: An offender subject to an HRO or interim HRO order must not contravene any condition (section 41(1)). The mandatory conditions include reporting, residing at approved premises, permitting police entry and searches, and not leaving the State without DCS approval (section 38(1)). Discretionary conditions may include electronic monitoring, drug testing, medication compliance, and restrictions on association or employment (section 38(2)). Duty of relevant agencies: Each relevant agency has a duty to cooperate with other relevant agencies in performing dangerous offender functions, including disclosing information likely to be of assistance, providing reasonable assistance, and cooperating with the risk assessment committee (section 31(2), (3)). Agencies may enter into cooperative protocols for sharing information and managing offenders (section 32). Duty of the Parole Board: The Parole Board must disclose certain confidential information to the DPP about relevant offenders who apply for parole, including notice of consideration, copy of parole order and reasons, and copies of decisions to defer or refuse parole (section 32A(3)). Right of appeal: Appeals lie as of right within 14 days from specified decisions: DPP may appeal against refusal to make a declaration or against an order discharging a declaration (section 19(1), (3)); an offender may appeal against the making of a declaration or refusal to discharge (section 19(2), (4)). Similar rights exist for pre-release orders (section 23) and HRO orders (section 43).

The primary penalty provision in the Act is section 41(1): a person subject to an HRO order or interim HRO order must not contravene a condition, and the penalty is a fine not exceeding 40 penalty units or imprisonment for a term of 2 years, or both. Proceedings for that offence are dealt with in a court of petty sessions (section 41(2)). The definition of breach in section 24 includes a failure to comply, so any non-compliance, whether active or passive, may be an offence. Beyond the criminal penalty, the Act provides enforcement mechanisms through arrest and court powers. A police officer who believes on reasonable grounds that the offender has breached, is breaching, or is about to breach a condition of an HRO order may arrest the offender (section 42(5)). For the purposes of making such an arrest, the officer may enter and search any premises, motor vehicle, aircraft or vessel where the officer reasonably suspects the offender to be present (section 42(4)). The Supreme Court may also issue a warrant to arrest an offender if an application is made or adjourned under Part 3 and the offender fails to appear or reasonable efforts to serve the application have been unsuccessful (section 42(1)). After arrest under that provision, the offender must be brought before the court as soon as practicable, and the court may remand the offender in custody or on bail to appear for determination of the application (section 42(3)). An HRO order or interim HRO order is suspended during any period after the operational period begins in which the offender is in lawful custody, whether under the Act or any other law (section 39(6)). However, if an HRO order is suspended for a period, the operational period is not extended (section 39(5A) , inserted by No.23 of 2025). For interim HRO orders only, suspension extends the operational period (section 39(5)). This distinction is significant for enforcement: an offender who is imprisoned for breach of an HRO order will serve that sentence, and the HRO order remains in force for its original duration unless cancelled. The Act does not provide for a specific penalty for breach of a dangerous criminal declaration or pre-release order, but section 9(1) prohibits release while the declaration is in force, and section 41 only applies to HRO orders. The court may also vary or cancel an HRO order on application, including by adding or removing conditions or altering the operational period, but the court must be satisfied that changes in the offender’s circumstances have rendered the offender unable to comply or that it is otherwise appropriate to do so (section 40(7)). The regulations made under section 48 may create further offences punishable by a fine of up to 50 penalty units and, for continuing offences, a further fine of up to 5 penalty units per day.

The Act explicitly interacts with several other pieces of Tasmanian legislation. Section 44 provides that proceedings under the Act (including appeals) are criminal proceedings, which has implications for rules of evidence, procedure, and standard of proof. The definitions section (section 3(1)) incorporates the meaning of Chief Psychiatrist from the Mental Health Act 2013, and the definition of psychiatrist also refers to that Act. The definition of probation officer refers to the Corrections Act 1997. Sections 27(4) and 29(5) refer to reports provided under the Corrections Act 1997. Sections 25 and 26 refer to the Tasmanian Health Service Act 2018, Mental Health Act 2013, Disability Rights, Inclusion and Safeguarding Act 2024, and Police Service Act 2003 for the composition of the risk assessment committee and the meaning of relevant agencies. Section 32A(3) requires the Parole Board to disclose information under the Corrections Act 1997, and explicitly provides that section 8 of that Act (which may impose confidentiality obligations) does not apply to such disclosure. Section 33(2)(b) refers to the Sentencing Act 1997 for the provision that allows a sentence of imprisonment to be imposed under section 19(3) of that Act as in force before commencement. Section 7(2)(d) and 15(2)(c) refer to reports under the Corrections Act 1997. Section 36(2)(g) refers to compliance with obligations under the Community Protection (Offender Reporting) Act 2005, which deals with reporting by certain offenders. Section 36(2)(ha) (inserted by No.21 of 2022) requires the court to have regard to any serial family violence declaration under section 29A of the Family Violence Act 2004 when determining whether to make an HRO order. Section 38(2)(k) allows the court to impose a condition that could be imposed on a reportable offender under the Community Protection (Offender Reporting) Act 2005. Section 38(2)(g)(ii) refers to substances under the Misuse of Drugs Act 2001 and the Poisons Act 1971. Section 45 provides protection from liability for acts or omissions in good faith in performing functions under the Act. Section 46 overrides the Personal Information Protection Act 2004 to allow personal information custodians to collect, use, disclose or otherwise deal with personal information for the purposes of the Act, without contravening that Act. Section 47 goes further: a judge, magistrate or relevant officer (as defined in the Sentencing Act 1997) may request any person involved in the treatment or supervision of an offender to disclose compliance information, and that person must comply. This obligation has effect despite the Personal Information Protection Act 2004 or any legislation relating to confidentiality or privacy. Section 47(4) provides a safe harbour from criminal, civil or administrative liability for disclosing compliance information in good faith. Section 48 allows the Governor to make regulations, which may create offences punishable by fines. Section 49 assigns administration of the Act to the Minister for Justice and the Department of Justice until an order under the Administrative Arrangements Act 1990 provides otherwise. Schedule 2 lists consequential amendments to the Annulled Convictions Act 2003, Corrections Act 1997, Court Security Act 2017, Custodial Inspector Act 2016, and Sentencing Act 1997.

The Act as reproduced shows several amendment notes. The Act itself received assent as 2021 Act No. 2, but the commencement provision (section 2) states that the provisions commence on a day or days to be proclaimed, meaning the exact commencement dates for various parts may differ. The text reflects amendments made by several later Acts. No. 2 of 2022 amended sections 24 and 33, and the Schedule, effective 18 March 2022. No. 4 of 2023 amended sections 3, 5, 11, 26, 34, and the Schedule, effective 25 September 2023. No. 5 of 2023 inserted new section 32A (disclosure of certain confidential information by the Parole Board), effective 13 June 2023. No. 33 of 2023 substituted section 34(2) (powers of the Supreme Court after receiving an HRO application), effective 27 November 2023. No. 2 of 2023 amended Schedule 1 (serious offences), effective 20 April 2023. No. 21 of 2022 amended section 36(2) by inserting paragraph (ha) (serial family violence declaration), effective 30 June 2024. No. 6 of 2025 amended sections 25 and 26 (relevant agencies and composition of risk assessment committee, adding disability department), effective 1 July 2025. No. 23 of 2025 amended sections 3 (definition of serious offence, adding references to Schedule 1), 35 (inserting new subsections (4) to (6) allowing detention for up to 7 days to enable arrangements and warrant of committal), 39 (amending subsection (3)(b) and inserting subsection (5A) , HRO order operational period not extended if suspended), and Schedule 1 (adding more offences to the list), effective 27 November 2025. The Act has been amended multiple times in its first few years, indicating active legislative attention. The original provisions for dangerous criminal declarations under Part 2 replaced earlier provisions under the Sentencing Act 1997 (section 19(1)) and the Criminal Code (section 392(1)), with section 8 providing that instruments under those former provisions are taken to be declarations under section 7(1), ensuring continuity for existing declarations.

The Act itself does not cite any decisions. As a relatively recent enactment (2021, with later proclaimed commencement), and given that many of its provisions have been amended by Acts up to 2025, the litigation history as disclosed in the source text is absent. The Act does provide for appeals to the Court of Criminal Appeal, both under Part 2 (sections 19 and 23) and Part 3 (section 43). Those appeal provisions are as of right within 14 days, without leave required (sections 19(5), 23(3), 43(2)). The Court of Criminal Appeal may also grant leave for a longer period to appeal (section 43(2)). The Act also provides for the Court of Criminal Appeal to make interim HRO orders when remitting a matter to the Supreme Court (section 43(4)). The text does not record whether any such appeals have been determined. The Act’s interaction with the Sentencing Act 1997 (via section 8 regarding previous declarations) and the Criminal Code (via section 8 regarding earlier dangerous offender provisions) suggests that there is a pre-existing body of case law under those earlier provisions which may be relevant to interpreting the current Act, but the Act itself does not preserve or incorporate that case law. The requirement in sections 7(4) and 35(2) that the court be satisfied to a high degree of probability tracks language used in some other Australian jurisdictions’ serious offender legislation, and courts may have regard to case law on that standard from other Acts. However, the source provided contains no references to decided cases. The analysis of litigation history under this Act must therefore be confined to noting the statutory appeal framework and the absence of any case citations within the Act itself.

Several provisions in the Act contain traps for the unwary. Suspended custody extends interim HRO orders but not HRO orders. Section 39(5) states that if an interim HRO order is suspended for a period, the operational period is extended by that period. But section 39(5A) (inserted by No.23 of 2025) provides that if an HRO order is suspended, the operational period is not extended. This means that an offender who is in lawful custody while subject to an HRO order will still have the order run its original duration, potentially allowing supervision to expire while the offender is still in custody. For interim orders, the clock pauses. Consecutive interim HRO orders capped. Section 39(8) prevents the Supreme Court from making consecutive interim HRO orders if the total period of all consecutive interim orders would be more than 6 months (or a longer period determined by the court). There is no equivalent cap on consecutive HRO orders, but each HRO order is limited to 5 years (section 39(2)(a)). Pre-release order not taking effect pending appeal. Section 20(4) provides that a pre-release order does not take effect until the end of the appeal period, and if an appeal is lodged and upheld, the order does not take effect at all. This means the offender cannot rely on the pre-release order’s requirements until the appeal is resolved. Discharge of declaration does not take effect until appeal period ends. Under section 16, an order discharging a declaration does not take effect until the end of the 14-day appeal period if no appeal is lodged, or until the appeal is dismissed, withdrawn or discontinued if an appeal is lodged. The offender thus remains in custody during that window. HRO application can be made before declaration discharged, and offender can be detained pending determination. Section 18 provides that after a declaration is discharged, if an HRO application has already been made or is made within 14 days of the court’s request, the court must order that the offender not be released until the HRO application is determined. This can result in detention continuing even after the declaration is discharged. Breach includes failure to comply. The definition of breach in section 24 specifically includes a failure to comply. So a passive non-compliance (e.g., not reporting as required, not taking medication as directed) is a breach. Two-year maximum penalty for breach. The maximum penalty for breach of an HRO order is 40 penalty units or 2 years imprisonment, or both (section 41(1)). This is relatively low compared to the seriousness of the underlying offences, but it is a criminal offence punishable by imprisonment. Appeal does not stay operation of HRO order. Section 43(3) provides that the making of an appeal does not stay the operation of an HRO order or interim HRO order. The offender remains subject to supervision pending appeal. Information sharing overrides privacy laws. Section 47(2) compels any person involved in treatment or supervision of the offender to disclose compliance information to a judge, magistrate or relevant officer when requested, despite privacy laws. Section 47(4) gives protection from liability. Practitioners must be cautious not to assume privacy obligations prevent disclosure in the face of a court request. Definition of relevant custodial sentence is broad. Section 3(1) defines relevant custodial sentence to include sentences for the dangerous criminal offence and sentences served cumulatively on that sentence, and further cumulative sentences on those. This can extend the period during which the DPP must apply for review and during which the declaration remains in effect.

Compliance obligations under the Act depend on the role of the person or entity. For the DPP, compliance involves adhering to the procedural requirements for applying for declarations (section 4) and HRO orders (section 33). The DPP must bring applications at the correct times: for a declaration, at conviction, sentencing, or while the offender is serving a custodial sentence (section 4(2)); for an HRO order, within 9 months before the expiry of the offender’s custodial sentence or existing HRO order, or if a declaration applies (section 33(2)). The DPP must serve applications and accompanying documents on the offender within 7 days (section 33(5)). The DPP must also ensure that reports obtained under sections 27(4) and 29(5) are provided to the court (sections 5(1)(a), 11(1)(a)). For review of declarations, the DPP must make applications within the statutory timeframes in section 10(2). The DPP must notify the risk assessment committee of decisions on whether to apply for an HRO order (section 30(2)). The DPP must also inform the Parole Board that a person is a relevant offender (section 32A(2)). For the court, compliance requires following the statutory tests and considering the mandatory factors. For a dangerous criminal declaration, the court must be satisfied to a high degree of probability that the offender is a serious danger to the community, considering the matters in section 7(2). For an HRO order, the court must consider the paramount consideration of community safety (section 36(1)) and the matters in section 36(2). The court must specify mandatory conditions in any HRO order (section 38(1)) and must set an operational period within the statutory limits (section 39). The court must also ensure that any order for detention pending arrangements (sections 18(4), 35(4), 37(2)) does not exceed 7 days and that a warrant of committal is issued. For offenders, compliance means not contravening any condition of an HRO or interim HRO order (section 41(1)), and for those subject to a declaration or pre-release order, complying with the requirements set by the court (section 20). Offenders must also attend hearings, submit to examinations when ordered, and provide information as required. For relevant agencies and the risk assessment committee, compliance involves preparing and providing reports as required (sections 27, 28, 29), cooperating with other agencies (section 31), and entering into cooperative protocols as appropriate (section 32). For the Parole Board, compliance requires disclosing information to the DPP about relevant offenders who apply for parole (section 32A). For any person involved in treatment or supervision of an offender, compliance includes disclosing compliance information when requested by a judge, magistrate or relevant officer (section 47(2)), despite privacy legislation. For police officers, compliance with the Act’s enforcement powers requires reasonable grounds for belief before arresting for breach or suspected breach (section 42(5)), and reasonable suspicion before entering premises (section 42(4)).