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PERIODIC DETENTION AMENDMENT REGULATION 2005 (NO 1) (NO 15 OF 2005)
2005
THE LEGISLATIVE
ASSEMBLY FOR
THE AUSTRALIAN CAPITAL
TERRITORY
PERIODIC
DETENTION AMENDMENT REGULATION 2005 (No 1)
SUBORDINATE LAW
SL2005-15
EXPLANATORY
STATEMENT
Circulated by the authority
of
Jon Stanhope MLA
Attorney General
PERIODIC DETENTION AMENDMENT REGULATION 2005 (No
1)
SUBORDINATE LAW SL2005-15
Outline
The Periodic Detention Act 1995 (the Act)
provides courts with an alternative to full-time custody where the court may
have otherwise been minded to sentence a person to a term of imprisonment of not
less than three months but not more than 24 months. The court may sentence the
person to complete a number of detention periods equalling one detention period
for each week of the term of imprisonment to which the person would otherwise
have been sentenced. Sentences of periodic detention are carried out at the
Periodic Detention Centre at Symonston in the ACT and the Act provides direction
on the powers of Corrective Services and parameters within which an order for
periodic detention may be carried out.
Section 22(2)(a) of the Act allows
the manager of the detention centre to refuse to admit a detainee to the centre
to serve a period of detention if the detainee has a concentration of alcohol in
their blood equal to or more than 0.02mg of alcohol per 100ml of blood, or a
drug is present in their body.
Section 23 of the Act gives the manager of
the detention centre the power to require detainees to submit to a blood alcohol
test or a drug test and states that the tests may be prescribed.
Section
7(1) of the Periodic Detention Regulation 1995 (the Regulation) currently
states that a breath test to detect whether alcohol is present in the
detainee’s blood and the concentration of that alcohol must be conducted
using a Dual Screener Alcomaster Model DS-190 manufactured by, or on behalf of,
Aust. Dynamic Technologies Company Pty Limited.
The apparatus being
used to conduct blood alcohol tests has changed. The tests will now be
conducted using the Lion Alcolmeter SD-400.
Section 7 of the Regulation
will be amended to enable the Chief Executive to approve a change of apparatus
in a notifiable instrument rather than prescriptively naming the apparatus in
the Regulation.
Schedule 1 to the Regulation currently contains the
procedures to be followed when conducting an alcohol test. Due to the change in
apparatus used to conduct the test the procedures also require amendment.
Section 7 will enable the Chief Executive to approve the applicable procedures
in a notifiable instrument.
Schedule 2 to the Regulation currently
contains the procedures to be followed when obtaining a sample of urine for drug
testing. Due to changes in the company contracted to analyse urine samples, and
changes in the courses of instruction and work practices associated with drug
testing, the procedures require amendment. Section 7 will enable the Chief
Executive to approve the procedures in a notifiable instrument.
The
Regulation also contains harmonisation provisions to ensure the it is compliant
with the Criminal Code. Section 1B is to be inserted to specifically apply the
Criminal Code to the Regulation and the offence of threatening behaviour will be
amended to incorporate the Criminal Code.
This is a technical clause that names the short title of the Act.
This clause enables the Regulation to commence on a day fixed by the
Minister in a written notice.
This clause enables amendment to the Periodic Detention Regulation
1995.
This is a technical clause explaining the status of notes to the Act and
makes it clear that the Criminal Code 2002 applies to the Act.
This clause prescribes breath tests to establish the concentration of
alcohol in a detainee’s blood and urine tests to establish whether a drug
is present in a detainee’s body to be lawful pursuant to section 23 of the
Act. Section 23 of the Act gives the manager of the detention centre the power
to require a detainee to undergo alcohol and drug testing.
This clause
also allows the Chief Executive to approve the following in a notifiable
instrument:
• the procedures to be followed in relation to the test;
• the instrument required for the test;
• the procedures to
be followed in relation to the analysis of a sample or specimen tested;
and
• anything else that relates to the test.
This clause allows
for the legislation to remain abreast of changes to instruments and operational
procedures without requiring constant amendment.
Section 7A
This clause deletes the reference to schedule 2.
Schedule 2 outlines the outdated procedure for obtaining a sample of urine for
the purposes of drug testing. These procedures will now be contained in a
notifiable instrument.
Clause 7: Written statement relating to alcohol and
drug tests
Section 8(2)(a)
Section 23(4) of the Act
requires the detainee to be provided with a written statement as soon as
practicable after a drug or alcohol test is conducted. Section 8(2)(a) of the
Regulation requires the written statement to be accompanied by a print-out of
the test results.
This clause deletes the reference to schedule 1,
section 1.3 in section 8(2)(a). Schedule 1, section 1.3 outlines the outdated
procedure to be followed after an alcohol test has been conducted. These
procedures will now be contained in a notifiable instrument, and section 8(2)(a)
will require the written statement relating to an alcohol test to be accompanied
by a copy of the print-out of the result of the analysis.
Clause
8: Section 20
This clause applies the Criminal Code to the offence of
threatening behaviour contained in section 20 of the Regulation.
This clause deletes schedules 1 and 2 from the Regulation. Schedule 1
details the outdated procedures to be followed in carrying out an alcohol test
at the detention centre. Schedule 2 details the outdated procedures to be
followed in obtaining a sample of urine. The updated procedures will now be
contained in a notifiable instrument pursuant to section 7 of the
Regulation.