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New South Wales
Crimes and Courts Legislation
Amendment Bill 2006
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendments 2
4 Explanatory notes 2
5 Repeal of Act 2
Schedule 1 Amendments 3
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2006
New South Wales
Crimes and Courts Legislation
Amendment Bill 2006
Act No , 2006
An Act to make miscellaneous amendments to legislation relating to crimes, courts
and other matters.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Crimes and Courts Legislation Amendment Bill 2006
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Crimes and Courts Legislation Amendment Act 2006.
2 Commencement
(1) This Act commences on the date of assent to this Act, except as
otherwise provided by this section.
(2) The amendments made by Schedule 1 commence on the day or days
specified in that Schedule in relation to the amendments concerned. If a
commencement day is not specified, the amendments commence on the
date of assent to this Act.
3 Amendments
The Acts specified in Schedule 1 are amended as set out in that
Schedule.
4 Explanatory notes
The matter appearing under the heading "Explanatory note" in
Schedule 1 does not form part of this Act.
5 Repeal of Act
(1) This Act is repealed on the day following the day on which all of the
provisions of this Act have commenced.
(2) The repeal of this Act does not, because of the operation of section 30
of the Interpretation Act 1987, affect any amendment made by this Act.
Page 2
Crimes and Courts Legislation Amendment Bill 2006
Amendments Schedule 1
Schedule 1 Amendments
(Section 3)
1.1 Bail Act 1978 No 161
[1] Section 6 Grant of bail for certain periods
Omit "section 8" from section 6 (g10). Insert instead "section 7D".
[2] Section 8A Presumption against bail for certain offences
Omit "23 (2), 24 (2)" from section 8A (1) (a) (i) and (iv) wherever occurring.
Insert instead "23 (1A), 23 (2), 23A (2), 23A (3), 24 (2), 24 (2A)".
[3] Schedule 1 Savings and transitional provisions
Insert as Part 18:
Part 18 Crimes and Courts Legislation
Amendment Act 2006
35 Offences committed before commencement of amendments
The amendment made to section 8A by the Crimes and Courts
Legislation Amendment Act 2006 extends to a grant of bail to a
person in respect of an offence committed before the
commencement of that amendment, but only if the person is
charged with the offence on or after that commencement.
Explanatory note
Item [2] of the proposed amendments to the Bail Act 1978 creates a presumption
against bail for the following offences under the Drug Misuse and Trafficking Act 1985:
(a) the offence relating to enhanced indoor cultivation of prohibited plants for a
commercial purpose,
(b) the offences relating to enhanced indoor cultivation of prohibited plants when a
child is exposed to the cultivation process and either a commercial quantity of
the plants is involved or the activity is carried out for a commercial purpose,
(c) the offence relating to manufacture or production of a commercial quantity of a
prohibited drug when a child is exposed to the manufacturing process.
Item [3] extends the amendment to the grant of bail in respect of offences committed
before the commencement of the amendment in certain circumstances.
Item [1] of the proposed amendments is consequential on the renumbering of
provisions of the Drug Court Act 1998 effected by amendments elsewhere in this
Schedule.
Page 3
Crimes and Courts Legislation Amendment Bill 2006
Schedule 1 Amendments
1.2 Child Protection (Offenders Prohibition Orders) Act 2004
No 46
Section 13 Contravention of orders
Omit section 13 (3).
Explanatory note
The proposed amendment to the Child Protection (Offenders Prohibition Orders) Act
2004 removes the requirement for a police officer who arrests a person suspected of
contravening a prohibition order to take the person before an authorised person (within
the meaning of the Criminal Procedure Act 1986) to be dealt with according to law, on
the basis that other laws (including the Bail Act 1978) render this requirement
unnecessary.
1.3 Child Protection (Offenders Registration) Act 2000 No 42
[1] Section 3 Definitions
Omit "section 91D-91G" from paragraph (d) of the definition of Class 2
offence in section 3 (1).
Insert instead "section 91D, 91E, 91F, 91G or 91H".
[2] Section 3 (1), definition of "Class 2 offence"
Omit "or 578C (2A)" from paragraph (e).
Explanatory note
The proposed amendments to the Child Protection (Offenders Registration) Act 2000
update a cross-reference to an offence under the Crimes Act 1900 relating to the
production, dissemination or possession of child pornography.
1.4 Children (Criminal Proceedings) Act 1987 No 55
Section 42
Insert after section 41A:
42 Action may be taken after good behaviour bond has expired
Action may be taken under this Part in relation to a good
behaviour bond even if the term of the bond has expired, but in
respect only of matters arising during the term of the bond.
Explanatory note
The proposed amendment to the Children (Criminal Proceedings) Act 1987 makes it
clear that actions in relation to a failure to comply with a good behaviour bond may be
taken even if the bond has expired, if the action relates to matters arising during the
term of the bond. This parallels section 100 of the Crimes (Sentencing Procedure) Act
1999.
Page 4
Crimes and Courts Legislation Amendment Bill 2006
Amendments Schedule 1
1.5 Civil Liability Act 2002 No 22
[1] Section 3B Civil liability excluded from Act
Omit "civil liability in respect of an intentional act that is done with intent to
cause injury or death or that is sexual assault or other sexual misconduct" from
section 3B (1) (a).
Insert instead "civil liability of a person in respect of an intentional act that is
done by the person with intent to cause injury or death or that is sexual assault
or other sexual misconduct committed by the person".
[2] Schedule 1 Savings and transitional provisions
Insert after Part 8:
Part 9 Provisions consequent on enactment of
Crimes and Courts Legislation
Amendment Act 2006
24 Definition
In this Part, amending Act means the Crimes and Courts
Legislation Amendment Act 2006.
25 Deemed commencement of, and application of, amendments to
section 3B (1) (a)
(1) The amendment to section 3B (1) (a) made by the amending Act
extends to civil liability arising, and any award of damages in
respect of such civil liability made, before the commencement of
that amendment.
(2) For the avoidance of doubt, any reference to "civil liability in
respect of an intentional act that is done with intent to cause
injury or death or that is sexual assault or other sexual
misconduct" in section 3B (1) (a) before the commencement of
this clause is taken to read (and always to have read) "civil
liability of a person in respect of an intentional act that is done by
the person with intent to cause injury or death or that is sexual
assault or other sexual misconduct committed by the person".
(3) The provisions of this Schedule that apply to section 3B (1) (a)
apply to that paragraph as if it read (and always had read) as
provided by subclause (2).
(4) This clause does not affect any final determination of legal
proceedings made by a court or tribunal before the
commencement of this clause.
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Crimes and Courts Legislation Amendment Bill 2006
Schedule 1 Amendments
(5) However, this clause does apply to legal proceedings (being
proceedings that have not been finally determined by a court or
tribunal) that relate to the application of Division 6 of Part 2A to
an award of damages, even if the proceedings that resulted in that
award being made have been finally determined by a court or
tribunal.
26 Definition of "offender in custody" in section 26A
(1) The definition of offender in custody or offender in section
26A (1) includes, and is taken to have always included, the
following:
(a) an inmate within the meaning of the Correctional Centres
Act 1952,
(b) a prisoner within the meaning of the Prisons Act 1952,
(c) a periodic detainee within the meaning of the Periodic
Detention of Prisoners Act 1981,
(d) an offender for whom a home detention order was made
under the Home Detention Act 1996,
(e) a person performing community service work under, or
attending a place in compliance with the requirements of,
a community service order as provided by the Community
Service Orders Act 1979, whether or not the person is an
offender in custody under any other paragraph of this
definition.
(2) This clause extends to civil liability arising, and any award of
damages in respect of such civil liability made, before the
commencement of this clause.
(3) This clause does not affect any final determination of legal
proceedings made by a court or tribunal before the
commencement of this clause.
(4) However, this clause does apply to legal proceedings (being
proceedings that have not been finally determined by a court or
tribunal) that relate to the application of Division 6 of Part 2A to
an award of damages, even if the proceedings that resulted in that
award being made have been finally determined by a court or
tribunal.
Explanatory note
Section 3B (1) (a) of the Civil Liability Act 2002 provides that the provisions of that Act
(subject to some specified exceptions) do not apply to civil liability in respect of an
intentional act that is done with intent to cause injury or death or that is sexual assault
or other sexual misconduct. This provision prevents a person who has carried out such
an act, when sued by their victim, from benefiting from the provisions of the Civil
Liability Act 2002 that aid defendants.
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Crimes and Courts Legislation Amendment Bill 2006
Amendments Schedule 1
Item [1] of the proposed amendments amends section 3B (1) (a) of the Civil Liability Act
2002 to make it clear that the exclusion in that paragraph applies only in relation to the
civil liability of the person who carried out the intentional act to a person who suffered
from that act. The amendment will make it clear that the exclusion does not apply in
other circumstances, for example, where a victim of such an intentional act sues a third
party for negligence for failing to prevent the act. (As a more specific example, the
exclusion will not apply where an offender in custody, who has been intentionally
injured by another offender in custody, sues the Department of Corrective Services for
negligence for failing to prevent the intentional injury.) In such a case, the third party
defendant will be able to benefit from the provisions of the Civil Liability Act 2002 that
aid defendants.
Item [2] of the proposed amendments inserts savings and transitional provisions
(proposed Part 9 (clauses 24-26)) into Schedule 1 to the Civil Liability Act 2002.
Proposed clause 25, as far as possible, gives the amendment in item [1] retrospective
application so that it applies as if the change it made commenced at the same time as
section 3B (1) (a) commenced.
Part 2A of the Civil Liability Act 2002 contains special provisions relating to offenders
in custody. Section 26A of the Act defines the term "offender in custody" or "offender".
The definition includes the following types of person covered by the Crimes
(Administration of Sentences) Act 1999: inmates, offenders serving their imprisonment
by way of periodic detention, offenders serving their imprisonment by way of home
detention and persons performing community service work under, or attending a place
in compliance with the requirements of, a community service order.
Proposed clause 26 provides that the definition of offender in custody or offender in
section 26A (1) includes, and is taken to always have included, persons who were
"inmates", "prisoners", "periodic detainees", "offenders for whom a home detention
order was made" or "persons performing community service work under, or attending
a place in compliance with the requirements of, a community service order" under
legislation that preceded the commencement of the Crimes (Administration of
Sentences) Act 1999.
The proposed clauses extend to civil liability arising, and any award of damages in
respect of such civil liability made, before the commencement of the clauses. However,
those proposed clauses will not affect any final determination of legal proceedings
made by a court or tribunal before the commencement of those clauses.
1.6 Civil Procedure Act 2005 No 28
Schedule 3 Rule-making powers
Insert "and other means of obtaining access to information, documents or
things" after "inspection" in clause 2.
Explanatory note
The proposed amendment extends the rule-making power in Schedule 3 to the Civil
Procedure Act 2005 so as to enable rules to be made in relation to obtaining access to
information, documents or things relating to court proceedings.
Page 7
Crimes and Courts Legislation Amendment Bill 2006
Schedule 1 Amendments
1.7 Coroners Act 1980 No 27
[1] Section 4A State Coroners and Deputy State Coroners
Omit "3" from section 4A (1). Insert instead "4".
[2] Part 4, Division 1A
Insert after Division 1:
Division 1A Coronial investigation scenes
23C Definitions
In this Part:
coronial investigation scene means a coronial investigation
scene established under section 23E.
coronial investigation scene power means a function specified in
section 23G (1) or (2).
23D Order establishing coronial investigation scene
(1) If a coroner considers that an investigation should, for the
purposes of an inquest or inquiry, be carried out at a particular
place, a coroner may issue an order in writing or by telephone to
a police officer or other person to:
(a) establish a coronial investigation scene at a specified
place, and
(b) exercise coronial investigation scene powers in
accordance with this Division, and
(c) enter and stay on the place for those purposes.
(2) An order may be made:
(a) before the commencement, or
(b) after the commencement and before the completion,
of an inquest or inquiry.
(3) This Division applies to a place of any kind, whether or not a
public place.
(4) An order issued under this section authorises a police officer or
other person specified in the order to enter any place referred to
in that order.
(5) A person acting under the authority of an order issued under this
section may, for the purposes of exercising coronial investigation
scene powers, obtain the assistance of any other person.
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Crimes and Courts Legislation Amendment Bill 2006
Amendments Schedule 1
(6) A copy of a telephone order is to be provided to the police officer
or other person to whom it is issued.
(7) In this section:
telephone means radio, facsimile or any other communication
device.
23E Establishment of a coronial investigation scene
(1) A police officer or other person may establish a coronial
investigation scene on a place in any way that is reasonably
appropriate in the circumstances.
(2) A police officer or other person who establishes a coronial
investigation scene must, if reasonably appropriate in the
circumstances, give the public notice that the place is a coronial
investigation scene.
23F Exercise of powers at coronial investigation scene
(1) A police officer or other person may exercise any of the coronial
investigation scene powers if:
(a) a coronial investigation scene has been established, and
(b) the police officer or other person exercising the power
suspects on reasonable grounds that it is necessary to do so
to preserve evidence relevant to an investigation by the
coroner.
(2) A police officer or other person may exercise the coronial
investigation scene powers for the period of time specified in the
order issued by the coroner.
23G Coronial investigation scene powers
(1) A police officer or other person may, in accordance with this
Division and an order issued by a coroner under this Division,
exercise the following functions at, or in relation to, a coronial
investigation scene:
(a) direct a person to leave the coronial investigation scene or
remove a vehicle, vessel or aircraft from the coronial
investigation scene,
(b) remove from the coronial investigation scene a person who
fails to comply with a direction to leave the coronial
investigation scene or a vehicle, vessel or aircraft a person
fails to remove from the coronial investigation scene,
(c) direct a person not to enter the coronial investigation
scene,
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Crimes and Courts Legislation Amendment Bill 2006
Schedule 1 Amendments
(d) prevent a person from entering a coronial investigation
scene,
(e) prevent a person from removing evidence from, or
otherwise interfering with, the coronial investigation scene
or anything in it and, for that purpose, detain and search the
person,
(f) remove or cause to be removed an obstruction from the
coronial investigation scene,
(g) perform any necessary investigation, including, for
example, search the coronial investigation scene and
inspect anything in it to obtain evidence in relation to the
inquest or inquiry,
(h) for the purpose of performing any necessary investigation,
conduct any examination or process,
(i) open anything at the coronial investigation scene that is
locked,
(j) take electricity, gas or any other utility, for use at the
coronial investigation scene,
(k) direct the occupier of the place or a person apparently
involved in the management or control of the place to
maintain a continuous supply of electricity at the place,
(l) photograph or otherwise record the coronial investigation
scene and anything in it,
(m) seize and detain all or part of a thing that might provide
evidence in relation to the inquest or inquiry or provide
evidence of the commission of an offence,
(n) dig up anything at the coronial investigation scene,
(o) remove wall or ceiling linings or floors of a building, or
panels of a vehicle,
(p) take possession of the body of a deceased person on behalf
of the coroner, including body tissue, clothing and items
apparently in the possession of the deceased person,
(q) remove or cause the removal of the body of a deceased
person to any location nominated by the coroner,
(r) any other function reasonably necessary or incidental to a
function conferred by this section.
(2) The power conferred by this section to seize and detain a thing
includes:
(a) a power to remove the thing from the coronial
investigation scene when it is found, and
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Crimes and Courts Legislation Amendment Bill 2006
Amendments Schedule 1
(b) a power to guard the thing in or on the coronial
investigation scene.
(3) Nothing in this Division prevents a police officer or other person
who is lawfully on a place from exercising a coronial
investigation scene power or doing any other thing, if the
occupier of the place consents.
23H Obstruction or hindrance of person executing coronial
investigation scene order
A person who, on production to the person of an order issued
under section 23D, obstructs or hinders the person to whom the
order was issued in the exercise of his or her powers under this
Division arising by virtue of the order is guilty of an offence
against this Act.
Maximum penalty: 100 penalty units or imprisonment for
2 years, or both.
23I Division does not limit other powers
Nothing in this Division limits any power that a police officer or
other person has to enter a place or to do any other thing when at
the place.
[3] Section 25 Order authorising entry of certain places
Omit the section.
[4] Schedule 3 Savings and transitional provisions
Insert at the end of clause 1A (1):
Crimes and Courts Legislation Amendment Act 2006, but only to
the extent that it amends this Act
Explanatory note
Section 4A (1) of the Coroners Act 1980 enables the Governor to appoint up to 3
Deputy State Coroners. Item [1] will enable the Governor to appoint up to 4 Deputy
State Coroners.
Item [2] inserts proposed Division 1A of Part 4 into the Coroners Act 1980, to extend
the powers of police and other persons to investigate a place on the order of a coroner
under that Act. The proposed Division details when and how a coronial investigation
scene may be established and the powers which may be exercised by police and other
persons while at a coronial investigation scene. The search and seizure powers
previously conferred on police and other persons are extended by the amendments so
as to further facilitate the investigation process.
Item [3] of the proposed amendments removes a redundant provision.
Item [4] enables savings and transitional regulations to be made as a consequence of
the proposed amendments.
Page 11
Crimes and Courts Legislation Amendment Bill 2006
Schedule 1 Amendments
1.8 Crimes (Local Courts Appeal and Review) Act 2001 No 120
[1] Section 3 Definitions
Insert after paragraph (b) of the definition of sentence in section 3 (1):
(ba) any order made by a Local Court revoking a good
behaviour bond and any order made as a consequence of
the revocation of the good behaviour bond, or
[2] Section 10A
Insert after section 10:
10A Part applies to findings of guilt
(1) An application for annulment under this Part may be made in
relation to a finding of guilt made by a Local Court, whether or
not the Court proceeds to conviction, and this Part applies in
respect of any such application accordingly.
(2) For that purpose:
(a) a reference in this Part to a conviction includes a reference
to a finding of guilt, and
(b) a reference in this Part to a sentence includes any order
made under section 10 or 11 of the Crimes (Sentencing
Procedure) Act 1999 on finding a person guilty of an
offence.
[3] Schedule 1 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Crimes and Courts Legislation Amendment Act 2006, but only in
relation to the amendments made to this Act
[4] Schedule 1, Part 5
Insert after Part 4:
Part 5 Provisions consequent on enactment of
Crimes and Courts Legislation
Amendment Act 2006
10 Application of amendment to definition of "sentence"
The amendment to the definition of sentence in section 3 (1)
made by the Crimes and Courts Legislation Amendment Act 2006
extends to orders referred to in paragraph (ba) of that definition
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Crimes and Courts Legislation Amendment Bill 2006
Amendments Schedule 1
that were made before the commencement of that amendment,
but does not affect any appeal proceedings or application under
this Act that was finally determined before the commencement of
that amendment.
Explanatory note
Item [1] of the proposed amendments to the Crimes (Local Courts Appeal and Review)
Act 2001 ensures that the revocation of a good behaviour bond and any order made as
a consequence of that revocation is treated as part of the sentence of a person and can
be appealed under that Act. Item [4] ensures that the amendment extends to orders
made before the commencement of that amendment.
Item [2] extends the provisions of the Crimes (Local Courts Appeal and Review) Act
2001 that allow a person to apply for an annulment of a conviction or sentence in
certain circumstances so that an application may also be made in respect of a finding
of guilt or an order made as a consequence of a finding of guilt (whether or not the court
proceeds to conviction).
Item [3] provides for the making of savings and transitional regulations as a
consequence of the proposed amendments.
1.9 Crimes (Sentencing Procedure) Act 1999 No 92
[1] Section 10A
Insert after section 10:
10A Conviction with no other penalty
(1) A court that convicts an offender may dispose of the proceedings
without imposing any other penalty.
(2) Any such action is taken, for the purposes of the Crimes (Local
Courts Appeal and Review) Act 2001 and the Criminal Appeal
Act 1912, to be a sentence passed by the court on the conviction
of the offender.
Note. The Crimes (Local Courts Appeal and Review) Act 2001 and the
Criminal Appeal Act 1912 provide for appeals against sentence,
including (in some circumstances) by the prosecutor.
[2] Section 12 Suspended sentences
Omit "except to the extent to which it deals with setting the non-parole period
and the balance of the term of the sentence" from section 12 (3).
[3] Section 99 Consequences of revocation of good behaviour bond
Omit section 99 (1) (c) (ii) and (iii). Insert instead:
(ii) Part 4 applies to the sentence, as if the sentence were being
imposed by the court following revocation of the good
behaviour bond, and section 24 applies in relation to the
setting of a non-parole period under that Part.
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Crimes and Courts Legislation Amendment Bill 2006
Schedule 1 Amendments
[4] Section 99 (2)
Omit "(disregarding any part that has already been served)".
[5] Section 100I Constitution of New South Wales Sentencing Council
Omit "10" from section 100I (2). Insert instead "13".
[6] Section 100I (2) (f)-(h)
Insert at the end of section 100I (2) (e):
, and
(f) one is to have expertise or experience in corrective
services, and
(g) one is to have expertise or experience in juvenile justice,
and
(h) one is to be a representative of the Attorney General's
Department.
[7] Section 100J Functions of Sentencing Council
Insert after section 100J (1) (d):
(e) to educate the public about sentencing matters.
[8] Schedule 1A Provisions relating to membership and procedure of New
South Wales Sentencing Council
Omit "6 members" from clause 10. Insert instead "7 members".
[9] Schedule 2 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Crimes and Courts Legislation Amendment Act 2006, to the
extent that it amends this Act
[10] Schedule 2, Part 16
Insert after Part 15:
Part 16 Provisions consequent on enactment of
Crimes and Courts Legislation
Amendment Act 2006
56 Application of amendments
(1) The amendments made to sections 12 and 99 by the Crimes and
Courts Legislation Amendment Act 2006, and section 10A, as
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Crimes and Courts Legislation Amendment Bill 2006
Amendments Schedule 1
inserted by that Act, extend to proceedings commenced (but not
concluded) before the commencement of the amendments.
(2) The amendments made to section 99 by the Crimes and Courts
Legislation Amendment Act 2006 extend to proceedings in
respect of the revocation of a good behaviour bond entered into
before the commencement of the amendments, subject to
subclause (3).
(3) The amendments to section 99 do not require a non-parole period
in respect of a sentence of imprisonment to be set on the
revocation of a good behaviour bond entered into before the
commencement of the amendments if the non-parole period was
set at the time that the sentence was suspended.
Commencement
Items [5]-[8] of the amendments to the Crimes (Sentencing Procedure) Act 1999
commence on a day or days to be appointed by proclamation.
Explanatory note
Item [1] of the proposed amendments to the Crimes (Sentencing Procedure) Act 1999
makes it clear that a court has power, on convicting a person, to dispose of the
proceedings without imposing any further penalty. It also provides that the disposal of
the proceedings without further penalty is to be treated as part of the sentence of the
offender, for the purposes of Acts that provide for appeals against sentence. This would
facilitate an appeal by the Crown in the circumstances provided for in those Acts.
Items [2]-[4] amend the provisions of the Act relating to the suspension of sentences
on condition that the offender enter into a good behaviour bond, and any subsequent
revocation of that bond. The proposed amendments remove the requirement that the
court set a non-parole period at the time of imposing a suspended sentence. Instead,
the setting of a non-parole period (and other functions of the court under Part 4 of the
Act) are to be exercised by the court if it revokes the good behaviour bond. The
amendments also remove a requirement, that is redundant in relation to suspended
sentences, that the court disregard any part of a sentence that has already been served
when it considers whether a sentence should be served by way of periodic detention
or home detention.
Items [5] and [6] provide for the appointment of additional members of the New South
Wales Sentencing Council. The 3 additional members are to be:
(a) a person with expertise or experience in corrective services, and
(b) a person with expertise or experience in juvenile justice, and
(c) a representative of the Attorney General's Department.
Item [8] is a consequential amendment.
Item [7] confers an additional function on the Sentencing Council, being the function of
educating the public about sentencing matters.
Items [9] and [10] provide for the transitional application of the amendments and enable
the making of savings and transitional regulations as a consequence of the
amendments.
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Crimes and Courts Legislation Amendment Bill 2006
Schedule 1 Amendments
1.10 Criminal Appeal Act 1912 No 16
[1] Section 2 Definitions
Insert after paragraph (c) in the definition of Sentence in section 2 (1):
(ca) any order made by the court of trial, after a person's
conviction for an offence, revoking a good behaviour bond
and any order made by the court of trial as a consequence
of the revocation of the good behaviour bond, or
[2] Section 5AF
Omit the section. Insert instead:
5AF Appeals by offenders against sentences imposed by the Drug
Court
(1) Section 5AA applies to and in respect of a person sentenced by
the Drug Court in the exercise of its jurisdiction under Part 2 of
the Drug Court Act 1998:
(a) in relation to a sentence determined by the Drug Court
under section 7D or 7E of that Act, or a final sentence
determined by the Drug Court under section 12 of that Act,
for an indictable offence, or
(b) in relation to a sentence determined by the Drug Court
under section 7D or 7E of that Act, or a final sentence
determined by the Drug Court under section 12 of that Act,
for a summary offence,
in the same way as it applies to a person referred to in section
5AA (1).
(2) For the purposes of this section, a reference in section 5AA to the
Supreme Court is to be construed as including a reference to the
Drug Court.
(3) The power of the Court of Criminal Appeal to hear and determine
an appeal under this section is to be exercised:
(a) in relation to an appeal under subsection (1) (a)--by such
2 or 3 judges of the Supreme Court as the Chief Justice
may direct, or
(b) in relation to an appeal under subsection (1) (b)--by such
single judge of the Supreme Court as the Chief Justice may
direct unless the judge, on the application of either party or
of his or her own motion, considers that the appeal raises
matters of principle or it is otherwise in the interests of
justice for the appeal to be dealt with by the full Court of
Criminal Appeal and notifies the Chief Justice
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Amendments Schedule 1
accordingly, in which case the appeal is to be heard and
determined by such 3 or more judges of the Supreme Court
as the Chief Justice may direct.
(4) Despite section 12 (4) of the Drug Court Act 1998, on an appeal
against a final sentence imposed by the Drug Court under
section 12 of that Act, the Court of Criminal Appeal may pass a
more severe sentence than the initial sentence imposed on the
relevant offender under section 7A or 7B of that Act.
[3] Section 5D Appeal by Crown against sentence
Insert "or 5DC" after "section 5DA" in section 5D (3).
[4] Section 5DC
Insert after section 5DB:
5DC Appeals by Crown against sentences imposed by Drug Court
(1) The Attorney General or the Director of Public Prosecutions may
appeal to the Court of Criminal Appeal against any sentence
imposed by the Drug Court in the exercise of its jurisdiction
under Part 2 of the Drug Court Act 1998:
(a) in relation to a sentence determined by the Drug Court
under section 7D or 7E of that Act, or a final sentence
determined by the Drug Court under section 12 of that Act,
for an indictable offence, or
(b) in relation to a sentence determined by the Drug Court
under section 7D or 7E of that Act, or a final sentence
determined by the Drug Court under section 12 of that Act,
for a summary offence.
(2) The power of the Court of Criminal Appeal to hear and determine
an appeal under this section is to be exercised:
(a) in relation to an appeal under subsection (1) (a)--by such
3 judges of the Supreme Court as the Chief Justice may
direct, or
(b) in relation to an appeal under subsection (1) (b)--by such
single judge of the Supreme Court as the Chief Justice may
direct unless the judge, on the application of either party or
of his or her own motion, considers that the appeal raises
matters of principle or it is otherwise in the interests of
justice for the appeal to be dealt with by the full Court of
Criminal Appeal and notifies the Chief Justice
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Schedule 1 Amendments
accordingly, in which case the appeal is to be heard and
determined by such 3 or more judges of the Supreme Court
as the Chief Justice may direct.
(3) Despite section 12 (4) of the Drug Court Act 1998, on an appeal
against a final sentence imposed by the Drug Court under
section 12 of that Act, the Court of Criminal Appeal on appeal
may pass a more severe sentence than the initial sentence
imposed on the relevant offender under section 7A or 7B of that
Act.
(4) The Court of Criminal Appeal may, in its discretion, do any one
or more of the following:
(a) confirm, quash, set aside or vary the sentence,
(b) impose such sentence as the Court of Criminal Appeal may
seem proper,
(c) exercise, by order, any power that the Drug Court might
have exercised.
(5) Any sentence varied or imposed, or any order made, by the Court
of Criminal Appeal under this section is to have the same effect
and be enforced in the same manner as if it had been imposed by
the Drug Court.
(6) On an appeal under this section against a sentence, new evidence
or information may be given with the leave of the Court of
Criminal Appeal. However, new evidence or information may be
given by the prosecution only in exceptional circumstances.
(7) Except as provided by subsection (6), nothing in this section
limits section 12.
[5] Schedule 1 Savings and transitional provisions
Insert after clause 10:
11 Crimes and Courts Legislation Amendment Act 2006
(1) The amendments made to this Act by Schedule 1.10 [2]-[4] to the
Crimes and Courts Legislation Amendment Act 2006 do not
apply to any appeal proceedings commenced before the
commencement of those amendments.
(2) The amendment to the definition of Sentence in section 2 (1)
made by the Crimes and Courts Legislation Amendment Act 2006
extends to orders referred to in paragraph (ca) of that definition
that were made before the commencement of that amendment,
but does not affect any appeal proceedings that were finally
determined before the commencement of that amendment.
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Explanatory note
Background
Under the Drug Court Act 1998, a person is referred to the Drug Court by another court
and is initially dealt with under current section 7 by the Drug Court convicting and
sentencing the person. That sentence, the "initial sentence", is suspended, to allow
participation in the Drug Court program. Under section 11 there is provision for the
termination of the offender's program. After a drug offender's program is terminated,
the Drug Court reconsiders the initial sentence and determines a "final sentence" under
section 12.
The Court of Criminal Appeal in R v Toman [2004] NSWCCA 31 found that the Crown
may appeal against any sentence imposed on an offender under the Drug Court Act
1998 including an initial sentence imposed by the Drug Court under current section 7.
However, an offender only has a right to appeal against a final sentence under
section 12 of that Act (see section 5AF of the Criminal Appeal Act 1912).
The Court in R v Toman [2004] NSWCCA 31 also considered section 12 (4) of the Drug
Court Act 1998, which provides that a final sentence determined for a drug offender in
relation to an offence is not to be greater than the initial sentence imposed on the drug
offender in relation to that offence. The Court held that section 12 (4) applied to an
appeal court in the same way as to a judge of first instance, so as to limit the final
sentence imposed on appeal to one no greater than the initial sentence.
Proposed amendments
Items [2]-[5] of the proposed amendments to the Criminal Appeal Act 1912 revise
appeal rights in relation to the Drug Court. The proposed amendments will have the
effect that:
(a) an appeal may not be made, by either the Crown or the offender, against an
initial sentence imposed by the Drug Court, and
(b) where the offender or the Crown appeals against a final sentence imposed on
a Drug Court program participant under section 12 of the Drug Court Act 1998,
the Court of Criminal Appeal may, if it allows the appeal, impose a greater
sentence than the Drug Court participant's initial sentence, despite section
12 (4) of the Drug Court Act 1998, and
(c) appeals by offenders against sentences imposed by the Drug Court on
indictment are to be heard and determined by the Court of Criminal Appeal
constituted by 2 or 3 judges, and
(d) Crown appeals against sentences imposed by the Drug Court on indictment are
to be heard and determined by the Court of Criminal Appeal constituted by
3 judges, and
(e) all appeals (whether by the Crown or the offender) against sentences imposed
by the Drug Court in matters dealt with summarily are to be determined before
a single judge of the Supreme Court, provided that the judge has the discretion
to remit the application to the full court of the Court of Criminal Appeal for
determination, either on the judge's own motion or on the application of either
party, if the appeal raises matters of principle or it is otherwise in the interests
of justice to do so.
Item [1] of the proposed amendments to the Criminal Appeal Act 1912 ensures that the
revocation of a good behaviour bond and any order made as a consequence of that
revocation is treated as part of the sentence of an offender and can be appealed under
that Act. Item [5] includes a savings and transitional provision that ensures that the
amendment extends to orders made before the commencement of that amendment.
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1.11 Criminal Procedure Act 1986 No 209
[1] Section 3 Definitions
Insert after section 3 (2):
(3) In the absence of evidence to the contrary, a person specified in
paragraphs (a)-(f) of the definition of public officer who purports
to exercise a function as a public officer under this Act is
presumed to be acting in an official capacity.
[2] Section 48 Commencement of proceedings by police officer or public
officer
Insert "under section 14 of this Act or under any other law" after "authorised".
[3] Section 49 Commencement of private prosecutions
Insert "under section 14 of this Act or under any other law" after "authorised"
in section 49 (1).
[4] Section 52 Service of court attendance notices
Insert "or prosecutor" after "police officer" where secondly occurring in
section 52 (1).
[5] Section 52 (4)
Omit section 52 (4) and (5). Insert instead:
(4) A copy of a court attendance notice must be filed in the registry
of a court in accordance with the rules.
[6] Section 53 When proceedings commence
Omit section 53 (2).
[7] Section 76 Recordings of interviews with children
Insert after section 76 (5):
(5A) Section 79 (3) does not apply to or in relation to a written
statement certified under this section.
[8] Section 86 Evidence not to be admitted
Insert at the end of the section:
(2) Despite subsection (1), the Magistrate may admit the evidence
sought to be adduced if the Magistrate is satisfied that:
(a) the non-compliance with this Division or the rules is trivial
in nature, or
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Amendments Schedule 1
(b) there are other good reasons to excuse the non-compliance,
and admit the evidence, in the circumstances of the case.
[9] Section 91 Witness may be directed to attend
Omit "tendered as evidence under this Division" from section 91 (1).
Insert instead "that the prosecution intends to tender as evidence in the
committal proceedings".
[10] Section 91 (3)
Omit "A direction may not be given if the written statement has already been
admitted in evidence.".
[11] Section 91 (3A)
Insert after section 91 (3):
(3A) A direction may not be given for the reasons referred to in
subsection (3) if the written statement has already been admitted
in evidence. This does not prevent a direction being given merely
because the written statement is tendered to the Magistrate for the
purpose of determining an application for a direction under this
section.
[12] Section 173 Commencement of proceedings by police officer or public
officer
Insert "under section 14 of this Act or under any other law" after "authorised".
[13] Section 174 Commencement of private prosecutions
Insert "under section 14 of this Act or under any other law" after "authorised"
in section 174 (1).
[14] Section 177 Service of court attendance notices
Insert "or prosecutor" after "police officer" where secondly occurring in
section 177 (1).
[15] Section 177 (4)
Omit section 177 (4) and (5). Insert instead:
(4) A copy of a court attendance notice must be filed in the registry
of a court in accordance with the rules.
[16] Section 178 When proceedings commence
Omit section 178 (2).
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[17] Section 179 Time limit for commencement of summary proceedings
Omit "This section" from section 179 (2). Insert instead "Subsection (1)".
[18] Section 179 (2) (c)
Insert at the end of section 179 (2) (b):
, or
(c) to an offence involving the death of a person that is or has
been the subject of a coronial inquest.
[19] Section 179 (3)
Insert after section 179 (2):
(3) Proceedings for a summary offence that relate to the death of a
person that is or has been the subject of a coronial inquest must
be commenced:
(a) not later than 6 months after the conclusion of the inquest,
or
(b) not later than 2 years from when the offence is alleged to
have been committed,
whichever occurs first.
[20] Section 237 Duration of arrest warrants
Omit "is carried out" from section 237 (1). Insert instead "expires".
[21] Section 237 (1A)-(1C)
Insert after section 237 (1):
(1A) A warrant to arrest an accused person in respect of an offence
specified in the Table below expires at the end of the period
specified in the Table in relation to the offence.
Offence Period
Indictable offences (punishable by imprisonment for life 50 years
or 25 years or more)
Indictable offences (punishable by imprisonment for 30 years
less than 25 years and not less than 5 years)
Indictable offences not punishable by imprisonment for 15 years
5 years or more (where the accused person is not a
child)
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Offence Period
Summary offences (where the accused person is not a 10 years
child)
Indictable offences not punishable by imprisonment for 10 years
5 years or more (where the accused person is a child)
Summary offences (where the accused person is a child) 5 years
(1B) A warrant issued for the arrest of a convicted person to bring that
person before a court for sentencing expires at the end of 30 years
after it is issued.
(1C) Nothing in subsection (1A) or (1B) prevents a new warrant for
arrest from being issued in respect of the same offence or
offences as a previous arrest warrant.
[22] Schedule 2 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Crimes and Courts Legislation Amendment Act 2006, but only to
the extent to which it amends this Act.
[23] Schedule 2
Insert at the end of the Schedule with appropriate Part and clause numbering:
Part Provisions consequent on enactment of
Crimes and Courts Legislation
Amendment Act 2006
Changes to limitation period
Section 179 (3), as inserted by the Crimes and Courts Legislation
Amendment Act 2006, extends to a summary offence that relates
to the death of a person before the commencement of that
subsection, but only if the period for commencement of
proceedings in relation to the offence under section 179 (1) has
not expired on the commencement of section 179 (3).
Existing warrants
Section 237 (1A)-(1C), as inserted by the Crimes and Courts
Legislation Amendment Act 2006, does not apply to a warrant
issued before the commencement of those provisions.
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Schedule 1 Amendments
Commencement
Items [20] and [21] of the amendments to the Criminal Procedure Act 1986 commence
on a day or days to be appointed by proclamation.
Explanatory note
The term public officer is defined in section 3 of the Criminal Procedure Act 1986.
Item [1] of the proposed amendments establishes an evidentiary presumption that a
person purporting to be a public officer is acting in an official capacity.
Sections 48, 49, 173 and 174 of the Criminal Procedure Act 1986 provide that various
authorised persons may commence proceedings. Items [2], [3], [12] and [13] make it
clear that section 14 of the Criminal Procedure Act 1986 or authorisation under any
other law is sufficient authorisation for the purposes of those sections.
Sections 52 and 177 of the Criminal Procedure Act 1986 require a court attendance
notice issued by a police officer to be served on the accused by a police officer.
Items [4] and [14] provide that a court attendance notice issued by a police officer may
also be served by a prosecutor.
Sections 52 (4) and 177 (4) of the Criminal Procedure Act 1986 require that an
endorsement of service be filed with a court when a court attendance notice is issued.
It was held in Sharman v Director of Public Prosecutions (2006) NSWSC 135 that a
failure to comply with this requirement may render the proceedings invalidly
commenced. Items [5] and [15] remove the link between service of a court attendance
notice and the jurisdiction of the court. Items [6] and [16] remove redundant provisions
relating to when proceedings commence.
At present, prosecution evidence in committal proceedings is given in the form of
written statements of witnesses that are tendered in evidence at the proceedings.
Section 79 of the Criminal Procedure Act 1986 requires that a written statement be
endorsed in accordance with the rules. Item [7] provides an exemption for children from
having to endorse a written statement where the statement is a transcript certified
under section 76.
Item [8] gives a Magistrate a discretion to admit prosecution evidence in committal
proceedings despite a non-compliance with the requirements of the relevant provisions
of the Act or the rules if the Magistrate is satisfied that the non-compliance is trivial in
nature or that there are other good reasons to excuse the non-compliance and admit
the evidence.
Currently, section 91 of the Criminal Procedure Act 1986 allows a Magistrate to direct
a person who has provided a written statement to attend to give oral evidence at the
committal proceedings in exceptional circumstances. Item [9] amends section 91 to
clarify that a direction may be given in respect of any written statement that the
prosecution intends to tender as evidence in the proceedings. Items [10] and [11]
remove any doubt that the tendering of the written statement to the Magistrate, for the
purpose of a directions hearing under section 91, prevents the Magistrate from giving
such a direction.
Items [17], [18] and [19] enable summary offence proceedings relating to a death that
is the subject of a coronial inquest to be commenced within 6 months from when the
inquest concludes or no later than 2 years after the commission of the offence,
whichever occurs first. Item [23] includes a savings and transitional provision that
extends the amendment to summary offences committed before the commencement
of that amendment if the existing limitation period has not expired.
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Currently there is no provision in the Criminal Procedure Act 1986 that enables a
warrant issued under that Act to expire. Items [20] and [21] make provision for the
expiration of arrest warrants issued under the Act. Item [23] inserts a savings and
transitional provision making it clear that the amendments do not apply to existing
warrants.
Item [22] enables savings and transitional regulations to be made as a consequence of
the proposed amendments.
1.12 Director of Public Prosecutions Act 1986 No 207
Section 9 Taking over prosecutions or proceedings
Insert after section 9 (4):
(5) For the purposes of this section, proceeding includes any
application, appeal or other proceeding commenced under
Division 1A of Part 3 of the Confiscation of Proceeds of Crime
Act 1989.
Commencement
The amendment to the Director of Public Prosecutions Act 1986 commences on the
commencement of Schedule 1 [34] to the Confiscation of Proceeds of Crime
Amendment Act 2005.
Explanatory note
The proposed amendment to the Director of Public Prosecutions Act 1986 makes it
clear that the Director of Public Prosecutions may take over proceedings relating to the
freezing of assets commenced by a police officer under Division 1A of Part 3 of the
Confiscation of Proceeds of Crime Act 1989.
1.13 District Court Act 1973 No 9
[1] Section 32 Directions as to sittings of Court in its civil jurisdiction
Insert after section 32 (1):
(1A) The Chief Judge is to consult with the Attorney General before
making a direction under subsection (1) that substantially alters
the frequency of sittings at a particular place compared with the
previous calendar year.
[2] Section 171 Criminal procedure rules
Insert at the end of the section:
(5) Despite any other provision of this Act, the provisions of Part 3
of Chapter 4 of the Criminal Procedure Act 1986 and any rules
under that Part apply to proceedings in the Court in its criminal
jurisdiction.
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[3] Section 173 Directions as to sittings of Court in its criminal jurisdiction
Insert after section 173 (1):
(1A) The Chief Judge is to consult with the Attorney General before
making a direction under subsection (1) that substantially alters
the frequency of sittings at a particular place compared with the
previous calendar year.
Explanatory note
Items [1] and [3] of the proposed amendments provide that the Chief Judge is to consult
with the Attorney General before making any substantial alterations to the sitting
calendar of the Court in either its civil or criminal jurisdiction.
Item [2] of the proposed amendments makes it clear that the provisions of Part 3 of
Chapter 4 of the Criminal Procedure Act 1986 which relates to subpoenas apply to
District Court proceedings so as to achieve consistency in the procedure for dealing
with subpoenas between the various jurisdictions.
1.14 Drug Court Act 1998 No 150
[1] Section 4 Definitions
Omit "7 or 8AB" from the definition of drug offender in section 4 (1).
Insert instead "7A or 7B".
[2] Section 4 (1), definition of "initial sentence"
Omit "7 or 8AB". Insert instead "7A or 7B".
[3] Section 4 (1), definition of "initial sentence"
Omit "8AC". Insert instead "7C".
[4] Section 4 (1), definition of "program"
Omit "7 (3) (a) or 8AB (6) (a)". Insert instead "7A (5) (a) or 7B (7) (a)".
[5] Section 4 (1), definition of "referring court"
Omit "8AA". Insert instead "7".
[6] Section 4 (1), definition of "suspension order"
Omit "7 (3) (b) or 8AB (6) (b)". Insert instead "7A (5) (b) or 7B (7) (b)".
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[7] Part 2, Division 1
Omit Divisions 1 and 1A. Insert instead:
Division 1 Acceptance into program
6 Courts may refer persons to Drug Court during proceedings for
offence
(1) This section applies to such courts and proceedings as are
prescribed by the regulations.
(2) It is the duty of a court before which a person is charged with an
offence or to which a person appeals against a sentence imposed
by some other court:
(a) to ascertain whether the person appears to be an eligible
person, and
(b) if so, to ascertain whether the person is willing to be
referred to the Drug Court to be dealt with for the offence,
and
(c) if so, to refer the person to the Drug Court to be dealt with
for the offence.
(3) The power conferred on a court by this section is to be exercised
as soon as practicable after the person first comes before the court
in connection with the offence, but may be exercised at any time:
(a) in the case of a Magistrate conducting committal
proceedings under the Criminal Procedure Act 1986,
before the Magistrate has committed the person for trial or
sentence in relation to that offence, and
(b) in any other case, before the person is sentenced or
re-sentenced for the offence.
7 Courts may refer persons to Drug Court during proceedings for
failure to comply with conditions of good behaviour bond
(1) This section applies:
(a) in relation to a person who is, at the time of his or her
appearance in court, participating in a program into which
he or she has been accepted as a result of previous
proceedings under this Act--to any court before which
such a person appears, or
(b) in relation to any other person--to such courts and
proceedings as are prescribed by the regulations.
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(2) It is the duty of a court before whom an offender appears under
section 98 of the Crimes (Sentencing Procedure) Act 1999 in
connection with an alleged failure to comply with the conditions
of a good behaviour bond imposed under section 12 of that Act:
(a) to ascertain whether the person appears to be an eligible
person, and
(b) if so, to ascertain whether the person is willing to be
referred to the Drug Court to be dealt with for the alleged
failure, and
(c) if so, to refer the person to the Drug Court to be dealt with
for the alleged failure.
(3) The power conferred on a court by this section is to be exercised
as soon as practicable after the person's first appearance before
the court in relation to the alleged failure.
(4) This section does not apply to an offender who, at the time of his
or her appearance before the court, is in custody under a sentence
of full-time imprisonment.
7A Persons accepted into program in relation to offence
(1) This section applies to a person who has been referred to the Drug
Court under section 6.
(2) The Drug Court may deal with a person under this section in
relation to an offence if, and only if, it is satisfied as to each of the
following matters:
(a) that the person is an eligible person,
(b) that the person has pleaded guilty to the offence (whether
before the referring court or the Drug Court) and has been
found guilty of the offence,
(c) that, having regard to the person's antecedents, it would be
appropriate for the person to participate in a program under
this Act,
(d) that facilities to supervise and control the person's
participation in such a program are available, and have
been allocated to the person, in accordance with the
guidelines prescribed by the regulations,
(e) that the person accepts the conditions imposed by this Act
and the conditions that the Drug Court proposes to impose
on the person (whether immediately or at some later date)
as a consequence of his or her conviction and sentence
under this section,
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(f) that the person has been informed of the Drug Court's
powers under Division 2 and of the respective
consequences, as regards the sentence to be imposed under
section 12, of the person's compliance or non-compliance
with a program,
(g) that any person (an affected person) with whom it is likely
the person would reside during the period of the person's
participation in a program under this Act has consented in
writing to the person residing with the affected person
during that period.
(3) Subject to subsection (4), the Drug Court deals with a person
under this section in relation to an offence by convicting the
person and sentencing the person in accordance with the Crimes
(Sentencing Procedure) Act 1999.
(4) Sections 44-48, 50, 51 and 51A of the Crimes (Sentencing
Procedure) Act 1999 do not apply to the conviction and
sentencing of a person under this section.
(5) On or within 14 days after sentencing the person, the Drug Court:
(a) must make an order imposing on the person the conditions
that the person has accepted as referred to in subsection
(2) (e) (the person's program), and
(b) must make an order suspending execution of the sentence
for the duration of the person's program (the person's
suspension order).
(6) An order referred to in subsection (5) (a) or (b) may be made in
the absence of the person in respect of whom it is made.
(7) The kinds of conditions that the Drug Court may impose on the
person under this section are as follows:
(a) conditions relating to conduct and good behaviour,
(b) conditions relating to attendance for counselling or other
treatment,
(c) conditions relating to the supervision of the person for the
duration of a program under this Act,
(d) conditions relating to drug testing that the person must
undergo,
(e) conditions relating to residence, association with other
persons or attendance at specified locations,
(f) conditions relating to involvement in activities, courses,
training or employment for the purpose of promoting the
re-integration of the person into the community,
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Schedule 1 Amendments
(g) conditions relating to conferring rewards of the kind
referred to in section 16 (1),
(h) conditions relating to the imposition of sanctions of the
kind referred to in section 16 (2),
(i) any other kinds of conditions that may be prescribed by the
regulations,
(j) such other conditions as the Drug Court considers
appropriate in the circumstances.
(8) A person who is convicted and sentenced by the Drug Court
under this section may, at the same time or any later time:
(a) be convicted and sentenced for any other offence to which
he or she has pleaded guilty (other than an offence referred
to in section 5 (2)), whether or not the person has been
referred to the Drug Court under section 6 in relation to
that other offence, or
(b) be dealt with in proceedings under section 98 or 99 of the
Crimes (Sentencing Procedure) Act 1999 for sentencing
on the revocation of a good behaviour bond, whether or not
the person has been referred to the Drug Court under
section 7 in relation to the failure to comply with the
conditions of the good behaviour bond, or
(c) be dealt with under both paragraphs (a) and (b).
(9) Subsections (5) and (6) apply to a sentence under subsection (8)
in the same way as they apply to a sentence under subsection (2).
(10) Nothing in this Act entitles a person to be convicted and
sentenced under this section, and no appeal lies against any
decision by the Drug Court not to convict or sentence a person
under this section.
(11) A suspension order does not operate to suspend any period of
disqualification from holding a driver licence imposed by or
under the road transport legislation within the meaning of the
Road Transport (General) Act 2005.
(12) For the purposes of subsection (2) (g):
(a) the consent of children below a prescribed age, and
(b) the consent of persons suffering a prescribed disability,
may be given on their behalf by such other persons as the
regulations may determine or may, if the regulations so provide,
be dispensed with.
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(13) In this section, a reference to the convicting and sentencing of a
person is, in the case of a person who is referred to the Drug Court
after having been convicted, a reference to the sentencing of the
person only.
7B Persons accepted into program in relation to failure to comply with
conditions of good behaviour bond
(1) This section applies to a person:
(a) who has been referred to the Drug Court under section 7, or
(b) who has been called on by the Drug Court to appear before
it under section 98 of the Crimes (Sentencing Procedure)
Act 1999,
not being a person who is currently participating in a program
into which the person has been accepted as a result of previous
proceedings under this Act.
(2) The Drug Court may deal with a person under this section in
relation to an alleged failure to comply with the conditions of the
relevant good behaviour bond if, and only if, it is satisfied as to
each of the following matters:
(a) that the person is an eligible person,
(b) that the person admits to having failed, and has in fact
failed, to comply with the conditions of the bond,
(c) that, having regard to the person's antecedents, it would be
appropriate for the person to participate in a program under
this Act,
(d) that facilities to supervise and control the person's
participation in such a program are available, and have
been allocated to the person, in accordance with the
guidelines prescribed by the regulations,
(e) that the person accepts the conditions imposed by this Act
and the conditions that the Drug Court proposes to impose
on the person (whether immediately or at some later date)
as a consequence of his or her being dealt with under this
section,
(f) that the person has been informed of the Drug Court's
powers under Division 2 and of the respective
consequences, as regards the sentence to be imposed under
section 12, of the person's compliance or non-compliance
with a program,
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(g) that any person (an affected person) with whom it is likely
the person would reside during the period of the person's
participation in a program under this Act has consented in
writing to the person residing with the affected person
during that period.
(3) Subject to subsections (4) and (5), the Drug Court deals with a
person under this section in relation to a failure to comply with
the conditions of a good behaviour bond by revoking the bond,
and convicting and sentencing the person, in accordance with the
Crimes (Sentencing Procedure) Act 1999.
(4) Section 99 of the Crimes (Sentencing Procedure) Act 1999 does
not apply to a good behaviour bond that is revoked under
subsection (3).
(5) Sections 44-48, 50, 51 and 51A of the Crimes (Sentencing
Procedure) Act 1999 do not apply to the conviction and
sentencing of a person under this section.
(6) For the purposes of this Act, the sentence of imprisonment in
relation to which a good behaviour bond referred to in section 12
of the Crimes (Sentencing Procedure) Act 1999 was entered into
under that Act is taken to be the sentence imposed under
subsection (3) in relation to the bond.
(7) On or within 14 days after sentencing the person, the Drug Court:
(a) must make an order imposing on the person the conditions
that the person has accepted as referred to in subsection
(2) (e) (the person's program), and
(b) must make an order suspending execution of the sentence
for the duration of the person's program (the person's
suspension order).
(8) An order referred to in subsection (7) (a) or (b) may be made in
the absence of the person in respect of whom it is made.
(9) The kinds of conditions that the Drug Court may impose on the
person under this section are as follows:
(a) conditions relating to conduct and good behaviour,
(b) conditions relating to attendance for counselling or other
treatment,
(c) conditions relating to the supervision of the person for the
duration of a program under this Act,
(d) conditions relating to drug testing that the person must
undergo,
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(e) conditions relating to residence, association with other
persons or attendance at specified locations,
(f) conditions relating to involvement in activities, courses,
training or employment for the purpose of promoting the
re-integration of the person into the community,
(g) conditions relating to conferring rewards of the kind
referred to in section 16 (1),
(h) conditions relating to the imposition of sanctions of the
kind referred to in section 16 (2),
(i) any other kinds of conditions that may be prescribed by the
regulations,
(j) such other conditions as the Drug Court considers
appropriate in the circumstances.
(10) Nothing in this Act entitles a person to be convicted and
sentenced under this section, and no appeal lies against any
decision by the Drug Court not to convict or sentence a person
under this section.
(11) A suspension order does not operate to suspend any period of
disqualification from holding a driver licence imposed by or
under the road transport legislation within the meaning of the
Road Transport (General) Act 2005.
(12) For the purposes of subsection (2) (g):
(a) the consent of children below a prescribed age, and
(b) the consent of persons suffering a prescribed disability,
may be given on their behalf by such other persons as the
regulations may determine or may, if the regulations so provide,
be dispensed with.
(13) In this section, a reference to the convicting and sentencing of a
person is, in the case of a person who is referred to the Drug Court
after having been convicted, a reference to the sentencing of the
person only.
7C Persons allowed to continue in program in relation to failure to
comply with conditions of good behaviour bond
(1) This section applies to a person:
(a) who has been referred to the Drug Court under section 7, or
(b) who has been called on by the Drug Court to appear before
it under section 98 of the Crimes (Sentencing Procedure)
Act 1999,
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being a person who is currently participating in a program into
which the person has been accepted as a result of previous
proceedings under this Act.
(2) The Drug Court may deal with a person under this section in
relation to an alleged failure to comply with the conditions of the
relevant good behaviour bond if, and only if, it is satisfied as to
each of the following matters:
(a) that the person is an eligible person,
(b) that the person admits to having failed, and has in fact
failed, to comply with the conditions of the bond,
(c) that, having regard to the person's antecedents, it would be
appropriate for the person to continue to participate in a
program under this Act,
(d) that the person consents to being dealt with under this
section,
(e) that the person accepts the conditions imposed by this Act
and the conditions that the Drug Court proposes to impose
on the person (whether immediately or at some later date)
as a consequence of his or her conviction and sentence
under this section.
(3) Subject to subsections (4) and (5), the Drug Court deals with a
person under this section in relation to a failure to comply with
the conditions of a good behaviour bond by revoking the bond,
and convicting and sentencing the person, in accordance with the
Crimes (Sentencing Procedure) Act 1999.
(4) Section 99 of the Crimes (Sentencing Procedure) Act 1999 does
not apply to a good behaviour bond that is revoked under
subsection (3).
(5) Sections 44-48, 50, 51 and 51A of the Crimes (Sentencing
Procedure) Act 1999 do not apply to the conviction and
sentencing of a person under this section.
(6) For the purposes of this Act, the sentence of imprisonment in
relation to which a good behaviour bond referred to in section 12
of the Crimes (Sentencing Procedure) Act 1999 was entered into
under that Act is taken to be the sentence imposed under
subsection (3) in relation to the bond.
(7) On or within 14 days after sentencing the person, the Drug Court:
(a) must make an order imposing on the person the conditions
that the person has accepted as referred to in subsection
(2) (e) (the person's program), and
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(b) must make an order suspending execution of the sentence
for the duration of the person's program (the person's
suspension order).
(8) Nothing in this Act entitles a person to be convicted and
sentenced under this section, and no appeal lies against any
decision by the Drug Court not to convict or sentence a person
under this section.
7D Persons not accepted into program in relation to offence
(1) This section applies to a person who has been referred to the Drug
Court under section 6 but whom the Drug Court has not dealt
with under section 7A.
(2) The Drug Court may deal with a person under this section in
relation to an offence if, and only if, it is satisfied as to each of the
following matters:
(a) that the person has pleaded guilty to the offence (whether
before the referring court or the Drug Court) and has been
found guilty of the offence,
(b) that the person consents to being dealt with under this
section.
(3) The Drug Court deals with a person under this section in relation
to an offence by convicting the person and sentencing the person
in accordance with the Crimes (Sentencing Procedure) Act 1999.
(4) If the person does not consent to being dealt with under this
section or in such other circumstances as the Drug Court may
determine, the Drug Court is to refer the person back to the
referring court.
(5) In the case of a person who has been referred to the Drug Court
for 2 or more offences by 2 or more referring courts, the Drug
Court may refer the person back to any one of the referring courts
to be dealt with:
(a) for the offences for which the person was referred by that
court, and
(b) for such of the other offences as are within the criminal
jurisdiction of that court.
(6) In dealing with a person for an offence referred to in subsection
(5) (b), the court to which the person is referred back is taken to
be the referring court for the purposes of subsection (7).
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(7) If the Drug Court refers a person back to the referring court, the
proceedings against the person are to be continued before the
referring court at a time and place specified in the order, as if:
(a) the person had not been referred to the Drug Court, and
(b) the proceedings had merely been adjourned to the time and
place specified in the order.
(8) A person who is convicted and sentenced by the Drug Court
under this section may, at the same time or any later time:
(a) be convicted and sentenced for any other offence to which
he or she has pleaded guilty (other than an offence referred
to in section 5 (2)), whether or not the person has been
referred to the Drug Court under section 6 in relation to
that other offence, or
(b) be dealt with in proceedings under section 98 or 99 of the
Crimes (Sentencing Procedure) Act 1999 for sentencing
on the revocation of a good behaviour bond, whether or not
the person has been referred to the Drug Court under
section 7 in relation to the failure to comply with the
conditions of the good behaviour bond, or
(c) be dealt with under both paragraphs (a) and (b).
(9) In this section, a reference to the convicting and sentencing of a
person is, in the case of a person who is referred to the Drug Court
after having been convicted, a reference to the sentencing of the
person only.
7E Persons not accepted into program in relation to failure to comply
with conditions of good behaviour bond
(1) This section applies to a person:
(a) who has been referred to the Drug Court under section 7, or
(b) who has been called on by the Drug Court to appear before
it under section 98 of the Crimes (Sentencing Procedure)
Act 1999,
but whom the Drug Court has not dealt with under section 7B or
7C.
(2) The Drug Court is to deal with a person to whom this section
applies in accordance with sections 98 and 99 of the Crimes
(Sentencing Procedure) Act 1999.
[8] Section 17 Immunity from prosecution for certain offences
Omit "or 1A" from section 17 (a).
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[9] Schedule 2 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Crimes and Courts Legislation Amendment Act 2006 (but only to
the extent that it amends this Act)
[10] Schedule 2, Part 5
Insert after Part 4:
Part 5 Provisions consequent on enactment of
Crimes and Courts Legislation
Amendment Act 2006
5 Crimes and Courts Legislation Amendment Act 2006
The amendments made to this Act by the Crimes and Courts
Legislation Amendment Act 2006 do not apply to any proceedings
commenced before the commencement of those amendments.
6 References to this Act in the Drug Court Regulation 2005
A reference in the Drug Court Regulation 2005:
(a) to section 8AA of this Act is taken to be a reference to
section 7, and
(b) to section 7 (2) (c) of this Act is taken to be a reference to
section 7A (2) (d), and
(c) to section 8AB (2) (d) of this Act is taken to be a reference
to section 7B (2) (d), and
(d) to section 8AC of this Act is taken to be a reference to
section 7C, and
(e) to section 8 of this Act is taken to be a reference to section
7D.
Explanatory note
Part 2 of the Drug Court Act 1998 concerns the acceptance of persons into Drug Court
programs and the administration of those programs. At present, Division 1 of Part 2
provides for the acceptance of persons into programs during proceedings for offences
and Division 1A provides for the acceptance of persons into programs during
proceedings for breach of conditions of good behaviour bonds. There is some
repetition of provisions in the two Divisions.
Section 7 of the Drug Court Act 1998 provides that when a person is allowed into the
Drug Court program, he or she is given an initial sentence of imprisonment that is
suspended to allow participation in the Drug Court program. That sentencing is
required to be carried out in accordance with the Crimes (Sentencing Procedure) Act
1999. However, that Act provides for certain procedures, such as the setting of a
non-parole period, that are not relevant to an initial sentence which is not required to
be served. The Drug Court developed a practice of only taking into account the
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objective features of the offences, together with the offender's plea of guilty and, where
appropriate, any time served in custody prior to initial sentence that was referable to
the offence. The Court would leave consideration of subjective matters for
consideration at final sentencing, after program termination, to minimise delays in
offenders entering the Drug Court program. It was also the practice of the Drug Court
not to set a non-parole period at initial sentence such that the sentence imposed only
reflected the head sentence in relation to the offence. However, in R v Rice [2004]
NSWCCA 384, the Court of Criminal Appeal found that section 7 (2A) of the Drug Court
Act 1998 and section 44 of the Crimes (Sentencing Procedure) Act 1999 did not permit
the Drug Court's practice of not setting a non-parole period at initial sentence.
Item [7] of the proposed amendments consolidates Divisions 1 and 1A into one Division
that applies to both proceedings for offences and proceedings for breach of conditions
of good behaviour bonds, subject to the following modifications:
(a) proposed section 7 (1) (a) provides that if the person against whom the
proceedings are brought is already a Drug Court participant, the duty of a court
to refer proceedings under section 98 of the Crimes (Sentencing Procedure) Act
1999 extends to all courts, not merely prescribed courts (those courts in the
Drug Court's catchment area in Western Sydney),
(b) proposed section 7 (2) provides that the duty of a court, before whom an
offender appears under section 98 of the Crimes (Sentencing Procedure) Act
1999 in connection with an alleged failure to comply with the conditions of a
good behaviour bond, to consider the person's eligibility for the Drug Court
program applies only to proceedings for the breach of bonds imposed under
section 12 (Suspended sentences) of the Crimes (Sentencing Procedure) Act
1999 (at present the duty applies to the breach of the conditions of any good
behaviour bond),
(c) proposed sections 7A (4) and 7B (5) provide that when imposing an initial
sentence on a Drug Court program participant, the Drug Court is not obliged to
fix a non-parole period under the Crimes (Sentencing Procedure) Act 1999 or to
comply with other provisions of that Act about commencement dates, release
dates and conditions of parole (final sentences, which are the sentences to
actually be served, are still required to be full sentences in accordance with the
Crimes (Sentencing Procedure) Act 1999),
(d) proposed sections 7A (8) and 7D (8) restate existing sections 7 (4) and 8 (5)
(which provide that the Drug Court may, at the same time as convicting and
sentencing a person with respect to an offence for which the person has been
referred to the Drug Court, convict and sentence that person for any other
offence to which he or she has pleaded guilty) so as to provide that the bringing
in of other offences and proceedings may occur at the same time as the first
mentioned conviction and sentencing or at any later time,
(e) proposed section 7E (2) provides that the Drug Court may also deal with
proceedings under section 98 or 99 of the Crimes (Sentencing Procedure) Act
1999 in relation to a sentence on the revocation of good behaviour bonds,
(f) existing section 8AA (5) is not remade because it is redundant,
(g) existing sections 8AC (3) (b) and 8AC (6), which require that any sentence
imposed on breach of bond proceedings that are finalised after the person
enters the program to be ordered to be served cumulatively with the initial
sentence, are not remade because they limit discretion in sentencing.
Items [1]-[6] and [8] of the proposed amendments make consequential amendments.
Item [9] provides for the making of savings and transitional regulations consequent on
the proposed amendments.
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Item [10] provides that the proposed amendments do not apply to any proceedings
commenced before the commencement of the amendments and updates certain
references in a regulation.
1.15 Drug Misuse and Trafficking Act 1985 No 226
[1] Section 11B
Insert after section 11A:
11B Possession of tablet press
(1) A person who has in his or her possession a tablet press that is
capable of being used to produce a prohibited drug in tablet form
is guilty of an offence.
(2) It is a defence to a prosecution for an offence under subsection (1)
if the defendant establishes:
(a) that the tablet press is used to produce tablets in connection
with an activity that is not unlawful, or
(b) that the defendant otherwise has a reasonable excuse for
possessing the tablet press.
[2] Section 24A Possession of precursors for manufacture or production of
prohibited drugs
Omit section 24A (2A).
[3] Section 36TA Definitions
Insert in alphabetical order:
child means a person who is under the age of 16 years.
[4] Section 36Y
Omit the section. Insert instead:
36Y Allowing use of premises as drug premises--offence by owner or
occupier
(1) A person who is the owner or occupier of any premises and who
knowingly allows the premises to be used as drug premises is
guilty of an offence.
Maximum penalty:
(a) for a first offence--50 penalty units or imprisonment for
12 months (or both), and
(b) for a second or subsequent offence--500 penalty units or
imprisonment for 5 years (or both).
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(2) A person who is the owner or occupier of any premises is guilty
of an offence if:
(a) the person knowingly allows the premises to be used as
drug premises, and
(b) the person knows that a child has access to the premises
and, as a consequence of that access, the child is exposed
to:
(i) a prohibited drug or prohibited plant, or
(ii) a drug supply process, or
(iii) any equipment capable of being used to administer
a prohibited drug.
Maximum penalty:
(a) for a first offence--60 penalty units or imprisonment for
14 months (or both), and
(b) for a second or subsequent offence--600 penalty units or
imprisonment for 6 years (or both).
(3) It is a defence to a prosecution for an offence under subsection (2)
if the defendant establishes that the exposure of the child to a
prohibited drug or prohibited plant, to a drug supply process, or
to equipment capable of being used to administer a prohibited
drug, did not endanger the health or safety of the child.
(4) If, on the trial of a person for an offence under subsection (2), the
jury:
(a) is not satisfied that the person knew a child had access to
the premises, or
(b) is not satisfied that a child was exposed to a prohibited
drug or prohibited plant, a drug supply process or
equipment capable of being used to administer a prohibited
drug, or
(c) is satisfied that the defence referred to in subsection (3) has
been made out,
the jury may acquit the person of the offence charged and find the
person guilty of an offence under subsection (1) and the person is
liable to punishment accordingly.
(5) For the purposes of this section, a drug supply process is any
method used to supply or manufacture prohibited drugs or to
cultivate prohibited plants.
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[5] Section 36Z
Omit the section. Insert instead:
36Z Offence of organising drug premises
(1) A person who organises or conducts, or assists in organising or
conducting, any drug premises is guilty of an offence.
Maximum penalty:
(a) for a first offence--50 penalty units or imprisonment for
12 months (or both), and
(b) for a second or subsequent offence--500 penalty units or
imprisonment for 5 years (or both).
(2) A person who organises or conducts, or assists in organising or
conducting, any drug premises is guilty of an offence if the
person knows that a child has access to the premises and, as a
consequence of that access, the child is exposed to:
(a) a prohibited drug or prohibited plant, or
(b) a drug supply process, or
(c) any equipment capable of being used to administer a
prohibited drug.
Maximum penalty:
(a) for a first offence--60 penalty units or imprisonment for
14 months (or both), and
(b) for a second or subsequent offence--600 penalty units or
imprisonment for 6 years (or both).
(3) For the purposes of this section, a person assists in organising or
conducting drug premises if, for example, the person acts as a
lookout, door attendant or guard in respect of any premises that
are organised or conducted as drug premises.
(4) It is a defence to a prosecution for an offence under subsection (1)
or (2) if the defendant establishes that he or she did not know, and
could not reasonably be expected to have known, that the
premises to which the charge relates were being organised or
conducted as drug premises.
(5) It is a defence to a prosecution for an offence under subsection (2)
if the defendant establishes that the exposure of the child to a
prohibited drug or prohibited plant, to a drug supply process, or
to equipment capable of being used to administer a prohibited
drug, did not endanger the health or safety of the child.
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(6) If, on the trial of a person for an offence under subsection (2), the
jury:
(a) is not satisfied that the person knew a child had access to
the premises, or
(b) is not satisfied that a child was exposed to a prohibited
drug or prohibited plant, a drug supply process or
equipment capable of being used to administer a prohibited
drug, or
(c) is satisfied that the defence referred to in subsection (5) has
been made out,
the jury may acquit the person of the offence charged and find the
person guilty of an offence under subsection (1) and the person is
liable to punishment accordingly.
(7) For the purposes of this section, a drug supply process is any
method used to supply or manufacture prohibited drugs or to
cultivate prohibited plants.
[6] Section 36ZA Proceedings for offences
Insert "(whether or not under the same subsection of the section concerned)"
after "36Z" in section 36ZA (2).
[7] Section 39A
Omit the section. Insert instead:
39A Meaning of "minimum amount"
In this Division:
minimum amount means:
(a) in relation to a prohibited plant, the indictable quantity of
that prohibited plant, and
(b) in relation to a prohibited drug, the traffickable quantity of
that prohibited drug.
[8] Sections 39B-39M
Insert "prohibited plant or" before "prohibited drug" wherever occurring.
[9] Section 39PB Order for disposal of substances by certain senior police
officers when no likely prosecution
Insert "prohibited plant or" before "prohibited drug" wherever occurring.
[10] Section 39PB (1) (a)
Insert "the indictable quantity of the plant or" before "the traffickable".
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[11] Section 39PB (2) (b)
Insert "the plant," before "the drug".
[12] Section 39R Return of prohibited plant or prohibited drug to lawful owner
Insert "prohibited plant or" before "prohibited drug" wherever occurring.
[13] Section 45 Regulations
Insert after section 45 (2):
(2A) The regulations may make provision for or with respect to
prohibiting or regulating the sale and storage of:
(a) precursors, and
(b) any apparatus that is capable of being used in the
manufacture or production of a prohibited drug,
being such precursors and apparatus as are prescribed by the
regulations for the purposes of this section.
Commencement
Items [1], [2] and [13] of the amendments to the Drug Misuse and Trafficking Act 1985
commence on a day or days to be appointed by proclamation.
Explanatory note
Item [1] of the proposed amendments to the Drug Misuse and Trafficking Act 1985
creates a new offence in relation to possessing tablet presses. It will be a defence if the
tablet press is being used in connection with a lawful activity or if the person concerned
has a reasonable excuse for possessing it. The new offence will have a maximum
penalty of $2,200 or imprisonment for 2 years, or both.
Items [4] and [5] create new aggravated versions of existing offences under the Act of
allowing the use of premises as drug premises or organising drug premises. The new
offences provide for a higher penalty for such activities if the person who allows the
premises to be used as drug premises or organises the drug premises knows that a
child has access to the premises and, as a consequence of that access, the child is
exposed to prohibited drugs or prohibited plants, a drug supply process or equipment
capable of being used to administer prohibited drugs or plants. Item [3] defines a child
to be a person under the age of 16 years for the purposes of the new offences. Item [6]
is a consequential amendment.
Item [8] extends the provisions relating to pre-trial destruction of prohibited drugs so
that they also apply to prohibited plants. Item [7] is a consequential amendment that
extends the definition of minimum amount so that an indictable quantity of a prohibited
plant is a minimum quantity of a prohibited plant for the purposes of the pre-trial
destruction provisions.
Items [9], [10] and [11] extends a provision that allows prohibited drugs to be destroyed
when there is no likely prosecution so that it also applies to prohibited plants.
Item [12] is a consequential amendment.
At present, the regulation-making power under section 24A (2A) of the Act relates to
the sale and storage of certain precursors. Item [13] extends that regulation-making
power to include certain apparatus capable of being used in the manufacture or
production of a prohibited drug. Item [2] is a consequential amendment.
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1.16 Electronic Transactions Act 2000 No 8
Section 14B Establishment of ECM system
Insert after section 14B (1) (g):
(h) to enable information concerning legal proceedings to be
exchanged in electronic form between such persons or
bodies as are prescribed by rules of court.
Explanatory note
Section 14B of the Electronic Transactions Act 2000 provides that the Attorney General
may establish an electronic case management system. The amendment extends the
application of this system to include the exchange of information between persons or
bodies prescribed by rules of court.
1.17 Evidence (Audio and Audio Visual Links) Act 1998 No 105
[1] Section 5BB Appearances of accused detainee (other than accused
child detainee) by audio visual link in relevant criminal proceedings
Insert after section 5BB (1) before the note:
(1A) Subsection (1) does not apply to any bail proceedings that occur
during a weekend or on a public holiday.
[2] Section 5BBA Appearances of accused child detainee by audio visual
link in preliminary criminal proceedings and relevant criminal
proceedings
Insert after section 5BBA (1):
(1A) Subsection (1) does not apply to any bail proceedings that occur
during a weekend or on a public holiday.
Explanatory note
Sections 5BB and 5BBA of the Evidence (Audio and Audio Visual Links) Act 1998
require a person to physically appear before a court in bail proceedings. Items [1] and
[2] amend those sections so as to provide that persons required to attend a bail
proceeding that occurs during a weekend or on a public holiday may do so by way of
audio visual link.
1.18 Evidence (Children) Act 1997 No 143
Section 9 Ways in which evidence of a child may be given
Insert after section 9 (1) before the note:
(1A) Evidence given by a child under subsection (1) (a) is not required
to be served on a party to any proceeding (including proceedings
in relation to apprehended violence commenced under Part 15A
of the Crimes Act 1900).
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Explanatory note
Section 9 of the Evidence (Children) Act 1997 provides that children may give evidence
of a previous representation in the form of a recording, orally or in an alternative
manner. The proposed amendment makes it clear that a recording of an interview with
a child is not required to be served on a party to a proceeding.
1.19 Land and Environment Court Act 1979 No 204
[1] Section 34 Preliminary conferences
Omit "(other than proceedings in Class 1 that are brought under section 97 of
the Environmental Planning and Assessment Act 1979)" from section 34 (1).
[2] Section 34 (1A)
Omit section 34 (1A). Insert instead:
(1A) If proceedings are pending in Class 3 of the Court's jurisdiction,
the registrar may, at any time on the application of the parties or
on the registrar's own motion, arrange a conference between the
parties to the proceedings or their representatives, to be presided
over by a single Commissioner.
[3] Section 34 (3) (a)
Insert "and is to set out in writing the terms of the decision" after "decision"
where lastly occurring.
[4] Section 34 (3A)
Insert after section 34 (3):
(3A) The Commissioner is to give written reasons for his or her
decision under subsection (3) (b) (ii).
[5] Section 34A Proceedings to which on-site hearing procedures apply
Omit section 34A (1). Insert instead:
(1) This section applies to the following proceedings, if the
proceedings have not been disposed of under section 34:
(a) proceedings in Class 1 of the Court's jurisdiction that are
brought under section 96 of the Environmental Planning
and Assessment Act 1979,
(b) proceedings in Class 1 of the Court's jurisdiction that are
brought under section 96AA of the Environmental
Planning and Assessment Act 1979,
(c) proceedings in Class 1 of the Court's jurisdiction that are
brought under section 97 of the Environmental Planning
and Assessment Act 1979,
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Schedule 1 Amendments
(d) proceedings in Class 1 of the Court's jurisdiction that are
brought under section 121ZK of the Environmental
Planning and Assessment Act 1979,
(e) proceedings in Class 1 of the Court's jurisdiction that are
brought under section 149F of the Environmental
Planning and Assessment Act 1979.
[6] Section 34A (2)
Omit "to which this section applies".
Insert instead "under section 97 of the Environmental Planning and
Assessment Act 1979".
[7] Section 34A (2A)
Insert after section 34 (2):
(2A) Proceedings to which this section applies (other than proceedings
under section 97 of the Environmental Planning and Assessment
Act 1979) are to be dealt with under section 34B, subject to
subsection (6), if the Registrar at the first or a subsequent callover
determines that the proceedings:
(a) have little or no impact beyond neighbouring properties,
and
(b) do not involve any significant issue of public interest
beyond any impact on neighbouring properties.
[8] Section 34A (4)
Insert "or (2A)" after "(2)".
[9] Section 34A (4)
Insert ", subject to subsection (6)" after "34C".
[10] Section 36 Delegation to Commissioners
Omit "(other than proceedings in Class 1 that are brought under section 97 of
the Environmental Planning and Assessment Act 1979)" from section 36 (1).
Insert instead "(other than proceedings that are being dealt with under section
34A)".
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[11] Section 37 Commissioners sitting with a Judge
Omit "(other than proceedings in Class 1 that are brought under section 97 of
the Environmental Planning and Assessment Act 1979)" from section 37 (1).
Insert instead "(other than proceedings that are being dealt with under section
34A)".
Explanatory note
The proposed amendments to the Land and Environment Court Act 1979:
(a) will enable preliminary conferences to be held for all Class 3 matters in the Court
rather than only compulsory acquisition matters, and
(b) will enable an extended range of matters to be dealt with by Commissioners at
on-site hearings, namely proceedings under sections 96, 96AA, 97, 121ZK and
149F of the Environmental Planning and Assessment Act 1979, and
(c) make other minor changes.
1.20 Local Courts Act 1982 No 164
[1] Section 11 Sittings of Local Courts
Insert after section 11 (2):
(2A) The Chief Magistrate must consult with the Attorney General
before making a direction under subsection (2) that substantially
alters the frequency of sittings at a particular place relative to the
previous calendar year.
[2] Section 42 Service of application notice
Omit "not later than 7 days after it is served or within such longer period as the
Court may allow and must contain an endorsement as to service" from section
42 (4).
Insert instead "in accordance with the rules".
Explanatory note
Item [1] amends the Local Courts Act 1982 so as to provide that the Chief Magistrate
is to consult with the Attorney General before making any substantial alterations to the
sitting calendar of the Court in either the civil or criminal jurisdiction.
Item [2] amends section 42 of the Local Courts Act 1982 so as to provide that a copy
of an application notice must be filed in a Local Court in accordance with the rules.
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1.21 Summary Offences Act 1988 No 25
[1] Section 23 Authorised public assemblies
Insert "(which may include an address for the transmission of facsimiles or the
sending of emails to the person)" after "Part" in section 23 (1) (e) (ii).
[2] Sections 24 Participation in authorised public assembly
Omit "section 23 (1) (c) and with".
Insert instead "section 23 (1) (c) or, if those particulars are amended by
agreement between the Commissioner and the organiser, in accordance with
those particulars as amended and in accordance with".
[3] Section 25 Prohibition by a Court of a public assembly
Omit "telegram" from section 25 (3) (b).
Insert instead "registered post, facsimile transmission or email".
[4] Section 25 (3) (b)
Omit "the address" wherever occurring. Insert instead "an address".
[5] Section 25 (3) (c)
Omit "the address". Insert instead "a postal address".
Explanatory note
Item [2] of the proposed amendments to the Summary Offences Act 1988 allows the
Commissioner of Police and the organiser of a public assembly to negotiate on the
particulars of the notice of a public assembly that is given under that Act. As a
consequence of the amendments, participation in a public assembly that is held
substantially in accordance with the notice, and any amendments to the notice agreed
between the Commissioner of Police and the organiser of the public assembly, will be
lawful.
Items [1] and [3] update the method by which notices may be served on an organiser
of a public assembly under the Act. Items [4] and [5] are consequential amendments.
1.22 Telecommunications (Interception) (New South Wales) Act
1987 No 290
[1] Section 1 Name of Act
Insert "and Access" after "Interception".
[2] Section 3 Definitions
Insert "and Access" after "Interception" in the definition of the
Commonwealth Act in section 3 (1).
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Amendments Schedule 1
[3] Section 11 Reports
Insert after section 11 (1):
(1A) The Ombudsman must include in each report under subsection
(1) in relation to a financial year (starting with the financial year
beginning on 1 July 2006) the following:
(a) a summary of the inspections conducted in the financial
year under section 10,
(b) particulars of any deficiencies identified that impact on the
integrity of the telecommunications interception regime
established by the Commonwealth Act,
(c) particulars of the remedial action (if any) taken or
proposed to be taken to address those deficiencies.
Note. In complying with this section, the Ombudsman remains bound by
section 63 of the Commonwealth Act, which prohibits the disclosure of
intercepted information or designated warrant information.
Explanatory note
Item [2] of the proposed amendments to the Telecommunications (Interception) (New
South Wales) Act 1987 updates a reference to the corresponding Commonwealth Act,
so as to reflect its new title.
Item [1] of the proposed amendments changes the name of the Act so that it
corresponds with the new title of the corresponding Commonwealth Act.
Item [3] of the proposed amendments requires the Ombudsman to include certain
details about the Ombudsman's inspections in the Ombudsman's annual report to the
Minister. The provision mirrors the reporting requirements imposed on the
Commonwealth Ombudsman under the corresponding Commonwealth Act.
1.23 Witness Protection Act 1995 No 87
Section 45
Insert after section 44:
45 Special provisions for former participants in NSW Police Witness
Protection Plan
Despite section 17, the Supreme Court is not required to be
satisfied of the matters referred to in section 17 (b), (c) and (d)
before making a witness protection order if satisfied that:
(a) the person named in the application as a witness is a former
participant in the New South Wales Police Witness
Protection Plan in force before the commencement of
section 5 or a person who, because of his or her
relationship with, or association with, a former participant
in that Plan, may require protection or other assistance
under this Act, and
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Schedule 1 Amendments
(b) the order is sought for the purpose of confirming an
identity established while that Plan was in operation.
Explanatory note
The proposed amendment to the Witness Protection Act 1995 allows the Supreme
Court to make an order authorising a new entry in a register of births, deaths or
marriages or the issue of identity documents in respect of a former participant in the
New South Wales Police Witness Protection Plan (or a relative or associate of such a
participant) without the Commissioner of Police having to satisfy the Supreme Court
that the person concerned is a party to a current memorandum of understanding with
the Commissioner of Police. The New South Wales Police Witness Protection Plan was
the witness protection program operated by police before the commencement of the
Witness Protection Act 1995.
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