Title: Criminal Law Consolidation (Supervision Requirements) AmendmentBill 2015
Author: Office of Parliamentary Counsel
Last saved by: Mrs Sandra Flintoft-Silk
Category: parliamentary.copy
Document comments: lc98

Legislative Council—No 98
As introduced and read a first time, 9 December 2015

Criminal Law Consolidation (Supervision Requirements) Amendment Bill 2015
Contents

Criminal Law Consolidation (Supervision Requirements) Amendment Bill 2015

Criminal Law Consolidation (Supervision Requirements) Amendment Bill 2015
Part 1—Preliminary

Criminal Law Consolidation (Supervision Requirements) Amendment Bill 2015
Preliminary—Part 1

Criminal Law Consolidation (Supervision Requirements) Amendment Bill 2015
Part 2—Amendment of Criminal Law Consolidation Act 1935

Criminal Law Consolidation (Supervision Requirements) Amendment Bill 2015
Amendment of Criminal Law Consolidation Act 1935—Part 2

Criminal Law Consolidation (Supervision Requirements) Amendment Bill 2015
Schedule 1—Related amendments

Criminal Law Consolidation (Supervision Requirements) Amendment Bill 2015
Related amendments—Schedule 1

South Australia
Criminal Law Consolidation (Supervision Requirements) Amendment Bill 2015
A Bill For
An Act to amend the Criminal Law Consolidation Act 1935; and to make related amendments to the Child Sex Offenders Registration Act 2006 and the Victims of Crime Act 2001.

Contents
Part 1—Preliminary
1	Short title
2	Commencement
3	Amendment provisions
Part 2—Amendment of Criminal Law Consolidation Act 1935
4	Amendment of section 269A—Interpretation
5	Substitution of section 269O
269O	Supervision requirements
6	Amendment of section 269OA—Court may direct defendant to surrender firearm etc
7	Substitution of section 269P
269P	Variation of supervision requirements
8	Amendment of section 269Q—Report on mental condition of defendant
9	Substitution of section 269S
269S	Principle on which court is to act
10	Amendment of section 269T—Matters to which court is to have regard
11	Substitution of section 269U
269U	Revision of supervision requirements
12	Amendment of section 269V—Custody, supervision and care
13	Amendment of section 269VA—Effect of supervening imprisonment
14	Amendment of section 269Y—Appeals
15	Amendment of section 269Z—Counselling of next of kin and victims
Schedule 1—Related amendments
Part 1—Related amendment to the Child Sex Offenders Registration Act 2006
1	Amendment of section 4—Interpretation
Part 2—Related amendment to the Victims of Crime Act 2001
2	Amendment of section 8—Right to information

The Parliament of South Australia enacts as follows:
Part 1—Preliminary
1—Short title
This Act may be cited as the Criminal Law Consolidation (Supervision Requirements) Amendment Act 2015.
2—Commencement
This Act will come into operation on a day to be fixed by proclamation.
3—Amendment provisions
In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2—Amendment of Criminal Law Consolidation Act 1935
4—Amendment of section 269A—Interpretation
	(1)	Section 269A(1)—after the definition of authorised person insert:
consumption of a drug includes—
	(a)	injection of the drug (either by the person to whom the drug is administered or someone else); and
	(b)	inhalation of the drug; and
	(c)	any other means of introducing the drug into the body;
	(2)	Section 269A(1)—after the definition of defensible insert:
dentist means a person registered under the Health Practitioner Regulation National Law—
	(a)	to practise in the dental profession as a dentist (other than as a student); and
	(b)	in the dentists division of that profession;
drug means alcohol or any other substance that is capable (either alone or in combination with other substances) of influencing mental functioning;
	(3)	Section 269A(1)—after the definition of judge insert:
medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student);
	(4)	Section 269A(1)—delete the definition of supervision order and substitute:
supervision requirements means requirements applying to a defendant under section 269O;
therapeutic—the consumption of a drug is to be regarded as therapeutic if—
	(a)	the drug is prescribed by, and consumed in accordance with the directions of, a medical practitioner or dentist; or
	(b)	the drug—
	(i)	is a drug of a kind available, without prescription, from registered pharmacists; and
	(ii)	is consumed for a purpose recommended by the manufacturer and in accordance with the manufacturer's instructions;
	(5)	Section 269A(1)—after the definition of victim insert:
voluntary—consumption of a drug is to be regarded as voluntary unless—
	(a)	the drug is administered against the will, or without the knowledge, of the person who consumes it; or
	(b)	the consumption occurs accidentally; or
	(c)	the person who consumes the drug does so under duress, or as a result of fraud or reasonable mistake; or
	(d)	the consumption is therapeutic.
5—Substitution of section 269O
Section 269O—delete the section and substitute:
269O—Supervision requirements
	(1)	If a court declares a defendant to be liable to supervision under this Part, the following provisions apply:
	(a)	the defendant will be subject to supervision requirements in accordance with this section;
	(b)	the supervision requirements will apply to the defendant for—
	(i)	the period specified by the court as the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court's opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established^1; or
	(ii)	2 years,
whichever is the greater (the limiting term);
	(c)	the defendant will, on the making of the declaration of supervision, be committed to detention under this Part for a period of 6 months or such longer period as the court may order;
	(d)	if the defendant is to be detained under this Part for a period that is less than the limiting term, the defendant will, at the end of the period of detention, be released on licence on the following conditions:
	(i)	a condition prohibiting the defendant from possessing a firearm or ammunition (both within the meaning of the Firearms Act 1977) or any part of a firearm;
	(ii)	a condition requiring the defendant to submit to such tests (including testing without notice) for gunshot residue as may be reasonably required by a person or body specified by the court;
	(iii)	any other conditions specified by the court.
	(2)	A court may vary or revoke the conditions imposed by subsection (1)(d)(i) and (ii) if the defendant satisfies the court, by evidence given on oath, that—
	(a)	there are cogent reasons to do so; and
	(b)	the possession of a firearm, ammunition or part of a firearm by the defendant does not represent an undue risk to the safety of the public.
Note—
1	i.e. the period of imprisonment or supervision that would have been imposed if the defendant had been found guilty of the relevant offence and without taking account of the defendant's mental impairment.
6—Amendment of section 269OA—Court may direct defendant to surrender firearm etc
Section 269OA(1)—delete "a supervision order that is subject to the condition imposed by 269OA(1a)(a)" and substitute:
the condition imposed by section 269O(1)(d)(i)
7—Substitution of section 269P
Section 269P—delete the section and substitute:
269P—Variation of supervision requirements
	(1)	At any time during the limiting term, the court by which a defendant is declared to be liable to supervision under this Part may, on the application of the Crown, the defendant, the Parole Board, the Public Advocate or another person with a proper interest in the matter, vary supervision requirements or the limiting term fixed by section 269O (but not so as to require a limiting term of less than 2 years).
	(2)	If the court refuses an application by or on behalf of a defendant under this section (the initial application), a further application cannot be made by or on behalf of the defendant for 6 months or such greater or lesser period as the court may direct on refusing the initial application.
8—Amendment of section 269Q—Report on mental condition of defendant
	(1)	Section 269Q—after subsection (1) insert:
	(1a)	If a person preparing a report under subsection (1) is of the opinion that the voluntary consumption of a drug by the defendant caused, contributed to or exacerbated the defendant's mental impairment, that opinion must be specified in the report and the suggested treatment plan must address the issue of drug use by the defendant.
	(2)	Section 269Q(2)—delete "If a supervision order is made against the defendant" and substitute:
If a defendant is subject to supervision requirements
	(3)	Section 269Q(2)—after "the court" insert:
and to the Parole Board
9—Substitution of section 269S
Section 269S—delete the section and substitute:
269S—Principle on which court is to act
In deciding whether to release a defendant under this Division, or the conditions of a licence, the court must—
	(a)	apply the principle that the primary consideration is the protection of the community; and
	(b)	impose such restrictions on the defendant's freedom and personal autonomy as are necessary or desirable for the protection of the community.
10—Amendment of section 269T—Matters to which court is to have regard
	(1)	Section 269T(1)—after paragraph (b) insert:
	(ba)	if the court is of the opinion that the voluntary consumption of a drug by the defendant caused, contributed to or exacerbated the defendant's mental impairment—the need to deter others from engaging in such drug use; and
	(bb)	the personal circumstances of any victim or, if any victim was killed as a result of the defendant's conduct, the next of kin of the victim (so far as they are known to the court); and
	(2)	Section 269T(2a)(a)—delete "order" and substitute:
requirements
11—Substitution of section 269U
Section 269U—delete the section and substitute:
269U—Revision of supervision requirements
	(1)	If a person who has been released on licence under this Division contravenes or is likely to contravene a condition of the licence, a court may, on application by the Parole Board (which may be made, in a case of urgency, by telephone), review the supervision requirements.
	(2)	After allowing the applicant and the person subject to the requirements a reasonable opportunity to be heard on the application for review, a court may—
	(a)	confirm the present terms of the supervision requirements; or
	(b)	amend the requirements so that they cease to provide for release on licence and provide instead for detention; or
	(c)	amend the requirements by varying the conditions of the licence,
and make any further order or direction that may be appropriate in the circumstances.
	(3)	When an application for review of supervision requirements is made, a court may issue a warrant to have the person subject to the requirements arrested and brought before the court and may, if appropriate, make orders for detention of that person until the application is determined.
12—Amendment of section 269V—Custody, supervision and care
Section 269V(3)—delete subsection (3) and substitute:
	(3)	Supervisory responsibilities arising from conditions on which a person is released on licence are to be exercised by the Parole Board.
13—Amendment of section 269VA—Effect of supervening imprisonment
	(1)	Section 269VA(1)—delete "order is" and substitute:
requirements are
	(2)	Section 269VA(2)—delete "term of a supervision order" and substitute:
period under which a defendant is subject to supervision requirements
14—Amendment of section 269Y—Appeals
Section 269Y(2)—delete "a supervision order" and substitute:
supervision requirements
15—Amendment of section 269Z—Counselling of next of kin and victims
Section 269Z—after "detention" insert:
or in the degree of supervision to which the defendant is subject being significantly reduced

Schedule 1—Related amendments
Part 1—Related amendment to the Child Sex Offenders Registration Act 2006
1—Amendment of section 4—Interpretation
Section 4(1), definition of supervised sentence paragraph (e)—delete paragraph (e) and substitute:
	(e)	supervision requirements within the meaning of Part 8A of the Criminal Law Consolidation Act 1935 under which the person the subject of the requirements is released on licence;
Part 2—Related amendment to the Victims of Crime Act 2001
2—Amendment of section 8—Right to information
Section 8(1)(i)—delete paragraph (i) and substitute:
	(i)	if the offender is subject to supervision requirements under Part 8A of the Criminal Law Consolidation Act 1935 and the offender, or any other person, later makes an application for variation of the requirements or an application for review of the requirements is made—the outcome of the proceedings and, in particular, if the offender is released on licence, any conditions imposed on the licence.

LC GP 208-B: the Hon John Darley MLC