Northern Territory Explanatory Statements

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ALCOHOL REFORM (SUBSTANCE MISUSE ASSESSMENT AND REFERRAL FOR TREATMENT COURT) BILL 2011

2011

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

ALCOHOL REFORM (SUBSTANCE MISUSE ASSESSMENT AND REFERRAL FOR TREATMENT COURT) bill 2011

SERIAL NO. 159
EXPLANATORY STATEMENT


GENERAL OUTLINE

The Alcohol Reform (Substance Misuse Assessment and Referral for Treatment Court) Bill 2011 establishes the SMART Court with the power to make particular orders for eligible offenders who are seriously misusing alcohol or drugs.

The Bill repeals Alcohol Court Act.

The SMART Court will offer assessment for offenders who are misusing substances and access to programs.

The purpose of the Bill is to facilitate a reduction in offending and antisocial behaviour associated with substance misuse, increase rehabilitation and reduce risks and harms associated with substance misuse through improved health and social outcomes for people whose offending is related to substance misuse.

The Bill also makes consequential amendments to a number of Acts that contain references to the Alcohol Court Act and also transitional arrangements concerning matters before the Alcohol Court at the time of the repeal of the Alcohol Court Act.


NOTES ON CLAUSES

PART 1 Preliminary matters

Clause 1. Short title.

This is a formal clause which provides for the citation of the Bill.
The Bill when passed may be cited as the Alcohol Reform
(Substance Misuse Assessment and Referral for Treatment Court) Act 2011.

Clause 2. Commencement

The Act commences on a date fixed by the Administrator as notified in the Gazette.

Clause 3. Object of Act

The object of the Act is to establish a court with powers to make orders for offenders who misuse alcohol or drugs to: improve opportunities for rehabilitation; prevent offences associated with substance misuse; and reduce risks and harms associated with substance misuse.

Clause 4. Definitions

This clause defines key terms for the Act.

For example, an ‘action plan’ for an offender is defined as an action plan recommended in the assessment report about the offender, while an ‘offender’ is defined as a person who has been referred to the Court under section 15.

‘CSJ’ means the Court of Summary Jurisdiction and ‘YJC’ means the Youth Justice Court.



Clause 5. Principles

This clause lists the general principles that must be applied in the administration of the Act and orders made under the Act.

The principles include that offenders eligible for referral should be identified as early as possible; that the process of the SMART Court is to be collaborative and non-adversarial; and that there should be significant and ongoing monitoring of the progress of offenders who are subject to SMART orders. The system must be one that contains both rewards and sanctions.

Clause 6. Application of Criminal Code

This clause provides that Part IIAA of the Criminal Code applies to an offence against the Act. Part IIAA provides for principles of criminality responsibility along the lines of the Model Criminal Code developed under the auspices of the Standing Committee of Attorneys-General.

PART 2 SMART Court

Clause 7. Establishment

This clause provides for the establishment of a court called ’Substance Misuse Assessment and Referral for Treatment Court’ that is known by its acronym as the SMART Court. The Court is constituted by the
Chief Magistrate and any other magistrate appointed by the
Chief Magistrate. The Court is a court of record and has a seal to be affixed to all process issued out of the Court.

Clause 8 Jurisdiction

This clause sets out the jurisdiction of the SMART Court.

The Court has the jurisdiction necessary to hear criminal matters referred from the Court of Summary Jurisdiction and the Youth Justice Court under clause 15 of the Bill, sentence offenders, defer sentencing of offenders or the execution of sentences imposed and to make SMART orders.

The SMART Court has all powers necessary to exercise its jurisdiction, including powers contained in the Justices Act, Sentencing Act, Youth Justice Act and Bail Act.

Clause 9. Registrar

The Registrar of the Local Court is a registrar of the SMART Court.

Clause 10. Where Court may sit

The Court may sit in locations as directed by the Minister and in buildings approved by the Minister for the holding of the Court.

Clause 11. When Court must or may be closed

This clause provides that proceedings of the SMART Court for a youth must be held in closed court unless the Court decides it is in the interests of justice to open the Court.

The Court has discretion to close the Court for an adult if it is justified in the best interests of the offender (for example so that the assessment and treatment needs of an offender can be fully addressed).

It is an offence to remain in a court room or area in breach of an order under this section. The maximum penalty is 200 penalty units or imprisonment for 12 months.

Clause 12. Procedure

This clause provides that the Court may, subject to the Act and any rules or practice directions made by the Chief Magistrate (clause 13) regulate its own procedure and apply or use a relevant procedure under the Bail Act, Sentencing Act, Justices Act or Youth Justice Act.

Clause 13 Rules and practice directions

The Chief Magistrate may make rules and issue practice directions for the practice and procedure of the Court. The procedure for making rules is contained in section 63 of the Interpretation Act.


Clause 14 Right of appeal to Supreme Court

This clause provides that an appeal lies to the Supreme Court from orders made by the SMART Court and findings of guilt or conviction. The provisions of Part 6 of the Justices Act with respect to appeals apply to the SMART Court.

An appeal does not lie in relation to certain decisions e.g. under clauses 19(3) (refusal to make a SMART order) or variations, revocations or a condition of SMART order under Part 5.

PART 3 Referral of offenders to SMART Court

Clause 15 Referral by CSJ or YJC

This clause provides that the CSJ and YJC may refer an eligible offender to the SMART Court on its own initiative or on the application by a prosecutor, police officer or eligible offender.

The person referred as an eligible offender must be charged with a relevant offence, have pleaded guilty, or indicated a plea of guilt, to the offence or been found guilty of the relevant offence and not yet been sentenced for the offence.

Clause 16 Relevant offence

This clause provides that a relevant offence is an offence that the CSJ or YJC has jurisdiction to hear and determine summarily, subject that regulations can be made that declare a particular offence is not a relevant offence.

Clause 17 Eligible offender

This clause sets out the criteria that must be met before the CSJ or YJC can refer an offender to the SMART Court for a SMART order.
The person must appear to have a history of serious substance misuse.

A person cannot be referred if they are subject to a parole order or a home detention order. A regulation can also exclude a category of offender from being referred to the Court.

Clause 18 Immunity from prosecution

This clause provides immunity from prosecution for any offence involving unlawful possession or use of a substance that is instituted because of an admission made in relation to referral to the SMART Court (except an admission of facts in relation to the relevant offence), in satisfying the Court that a SMART order should be made or in connection with monitoring the person’s progress under the SMART order.

Immunity from prosecution is essential to the operation of the SMART Court as a therapeutic court by ensuring the process of the Court is not undermined by prosecutions initiated as a result of an offender admitting possession or use of a substance when establishing the eligibility of the offender for referral to the SMART Court, satisfying the Court that the offender has a substance misuse problem or during the monitoring of the offender’s progress under the SMART order.

PART 4 SMART orders and other orders

Clause 19 Criteria for making SMART order

This clause provides that before making a SMART order
(under clause 20 or 21), the offender must agree, in writing, to the court clinician having access to all relevant information about the offender to assist the clinician in making an assessment report.

The SMART Court must order the offender to attend clinical assessment, order a copy of the assessment report to be provided by a court clinician, provide copies of the assessment report to the parties, provide the parties an opportunity to be heard and take into account the information in the assessment report.

The Court may make a SMART order only if all of the following criteria are met:
· the offender has been found guilty of a relevant offence;
· the offender has not yet been sentenced for that offence;
· the offender is willing to comply with a SMART order; and
· the Court is satisfied that the offender has a history of serious substance misuse which contributed to the commission of the relevant offence and that it is appropriate to make an order.

Clause 20 Deferring sentence and making SMART order

This clause provides that the Court may defer sentencing of the offender for a minimum of six months and a maximum of 12 months and make a SMART order.

The offender is granted bail on condition that the offender complies with bail conditions, comply with the SMART order, appear before the Court on a specified date for sentencing and appear before the Court from time to time as ordered by the Court for review of the offender’s progress.

Clause 21 Suspending execution of sentence and making SMART order

This clause provides that the Court may sentence the offender to a period of imprisonment in accordance with the Sentencing Act or the Youth Justice Act, and make a SMART order for the offender.

The execution of the sentence of imprisonment is suspended for a minimum six months and maximum 12 months on condition that the offender must comply with the SMART order during the period of suspension. The offender must, as a condition of the SMART order, appear before the Court on a specified date for reconsideration of the sentence as well as from time to time as ordered by the Court for review of the offender’s progress.

Clause 22 Conditions of SMART order

This clause provides that a SMART order includes conditions the Court considers appropriate.

Clause 22 sets out a range of conditions that may be made, including actions as recommended in the assessment report action plan, conditions that provide for various prohibitions relating to consumption, use, purchase or possession of specified substances and directions directed at the Director of Licensing (with reference to section 122 of the Liquor Act).


Clause 23 Copies of SMART order to be given

This clause provides that a copy of the SMART order must be given to relevant people (court clinician, Director of Correctional Services, Director of Licensing and person or entities providing treatment).

PART 5 Monitoring progress under SMART order and imposing final sentence

Clause 24 Monitoring progress, conferring rewards or imposing sanctions

This clause provides that the Court may confer rewards or sanctions on an offender who is subject to a SMART order through amendments to the conditions of the SMART order. The Court may confer rewards or sanctions when reviewing the offender’s progress under the order pursuant to section 20(2)(c) or 21(2)(b). Examples of such rewards and sanctions are set out in clause 25.

Clause 25 Rewards and sanctions

This clause sets out the rewards that may be conferred and sanctions that may be imposed by the Court when reviewing the progress of an offender on a SMART order. A reward may be conferred or sanction imposed depending on the progress of the offender under the SMART order.

Rewards that may be conferred include changes in frequency of counseling, treatment or other intervention and a decrease in supervision.

If an offender does not maintain a satisfactory level of compliance with a SMART order a sanction may be imposed. Sanctions include a change of condition to increase the frequency of testing for alcohol or drugs and a requirement that the offender be detained (for a youth) or imprisoned (for an adult) for up to 14 days.


Clause 26 Variation generally

This clause provides that the Court may vary the SMART order by varying or revoking conditions or adding conditions to the order. The Court may vary the SMART order at any time during the period of the order.

Clause 27 Revocation if further progress unlikely or risk to community

This clause provides that the Court may revoke the SMART order if satisfied on the balance of probabilities that the offender is unlikely to make any further progress under the order or there is a risk that the offender may commit a further offence thereby placing the community at risk.

Clause 28 Revocation for substantial compliance or on request

This clause provides that the Court may revoke the SMART order if satisfied that the offender has substantially complied with the conditions of the order or at the offender’s request. If this happens the offender is then given a final sentencing order under clause 29 or 30.

Clause 29 Final sentence after deferral of sentencing

This clause provides that when an offender the subject of a SMART order under section 20 appears before the Court to be sentenced or if the order is revoked or cancelled, the Court must sentence the offender.

When sentencing an offender the Court must take into account the extent to which the offender has complied with the SMART order, any sanctions imposed during the period the order was in force, and any other matters considered relevant.

When sentencing the offender (where the order has not been revoked or cancelled), sections 78BA and 78BB of the Sentencing Act do not apply. Sections 78BA and 78BB of the Sentencing Act mandate a sentence of imprisonment for certain offences.


Clause 30 Final sentence after suspension of execution of sentence

This clause provides that when an offender the subject of a SMART order under section 21 appears before the Court for reconsideration of the sentence or if the order is revoked or cancelled, the court must reconsider the sentence and either confirm the sentence or set aside the sentence and make a new sentencing order.

When reconsidering the sentence of an offender the Court must take into account the extent to which the offender has complied with the SMART order, any sanctions imposed during the period the order was in force, and any other matters considered relevant.

When reconsidering the sentence and imposing a final sentence
(where the order has not been revoked or cancelled), sections 78BA and 78BB of the Sentencing Act do not apply. Sections 78BA and 78BB of the Sentencing Act mandate a sentence of imprisonment for certain offences.

PART 6 Court Clinicians and assessment reports

Clause 31 Appointment of court clinician

This clause provides that the Chief Executive Officer (as defined in section 17 of the Interpretation Act) may appoint a person as a SMART court clinician.

Clause 32 Functions and powers of court clinician

This clause sets out the functions and functions of the court clinicians.

The court clinicians will make clinical assessments and provide assessment reports, provide the Court with progress reports as offenders progress through treatment, liaise with the Director of Correctional Services in relation to offenders subject to SMART orders and give directions to offenders subject to SMART orders.


Clause 33 Assessment report

This clause provides that an assessment report prepared by a court clinician must include a statement of whether the clinical assessment of the offender indicates that the offender may benefit from a SMART order and give recommendations regarding an action plan for the offender.

The action plan of a report may also include the appropriate treatment, counselling or other intervention or other programs and services that might be imposed as part of an order to assist in the offender’s rehabilitation.

PART 7 Miscellaneous matters

Clause 34 Delegations

This clause provides that any power or function given to the Minister, Chief Executive Officer or Director of Correctional Services by the Act can be delegated to a public sector employee (as defined in section 17 of the Interpretation Act).

Clause 35 Protection from liability

This clause provides protection from criminal and civil liability for court clinicians for acts done by them in good faith, and in the exercise or purported exercise of a power or function under the Act.

Clause 36 Regulations

The Administrator may make regulations under the Act. The scope for such regulations is set out in sections 65A-65D of the Interpretation Act.

PART 8 Repeal and transitional matters for SMART Court Act 2011

Clause 37 Definitions

This clause provides the definitions for this Part.


Clause 38 Repeal

The Alcohol Court Act (Act No.1 of 2006) is repealed.

Clause 39 Relevant offences committed before commencement day

The Act applies in relation to a person charged with a relevant offence even if the offence was committed or the person charged before the commencement day (being the day of repeal of the Alcohol Court Act).

Clause 40 Continuation of matters under repealed Act

This clause provides that the Alcohol Court Act is to apply, as if it were in force, to matters being handled by the Alcohol Court and to orders in force before the commencement day. The SMART Court will take over the handling of such matters.

Clause 41 Locations and buildings for Court sittings

This clause provides that a direction about a location in which the Alcohol Court may sit that was in force under the Alcohol Court Act continues as if the direction or approval was given under section 10 of this Act and as if the reference to the Alcohol Court were a reference to the SMART Court.

Clause 42 Court clinicians

This clause provides that a person holding office as a court clinician under the Alcohol Court Act is taken to have been appointed under section 31of the Act.


PART 9 Consequential amendments

Clause 43 Liquor Act amended

This clause provides for amendments to the Liquor Act to replace references to the Alcohol Court Act and orders and with references to the SMART Court Act and orders.

The clause also provides for transitional provisions through insertion of new Part XVI sections 140 to 142 of the Liquor Act as outlined below.

PART XVI Transitional provisions for Alcohol Reform (Substance Misuse Assessment and Referral for Treatment Court) Act 2011

140 Definition

New section 140 defines for Part XVI ‘alcohol intervention order’, ‘commencement day’ and ‘prohibition order’.

‘Alcohol intervention order’ means an order to which the Alcohol Court Act continues to apply under section 40 of the Alcohol Reform (Substance Misuse Assessment and Referral for Treatment Court) Act 2011.

‘Prohibition order’ means an order to which the Alcohol Court Act continues to apply under section 40 of the Alcohol Reform (Substance Misuse Assessment and Referral for Treatment Court) Act 2011.

141 Identification system

New section 141 provides that section 31A continues to apply to a prohibition order or an alcohol intervention order as if a reference to a SMART order in section 31A(2) were a reference to a prohibition order or an alcohol intervention order.

142 Prohibition notice

New section 142 provides that section 122 continues to apply in relation to a prohibition order as if a reference in that section to a SMART order were a reference to a prohibition order.


Clause 44 Prisons (Correctional Services) Act amended

This clause provides for the repeal and replacement of Division 4 of Part 27 Part XXVIA is being renamed as Part 27 by the Statute Law Revision Bill (No 2) 2010 of the Prisons (Correctional Services) Act, which deals with Alcohol Intervention Orders under the Alcohol Court Act. It is replaced by new Division 4 to provide for the SMART Court Act and orders as outlined below.

Division 4 – SMART orders requiring surveillance

94G Surveillance of offender subject to SMART order

New section 94G provides for surveillance of persons under SMART orders.

Clause 45 Other laws amended

A Schedule provides for the amendment of other laws by replacing references to the Alcohol Court Act and orders with references to the SMART Court Act and orders.

Clause 46 Expiry of Part

This clause provides that this Part expires on the day after it commences.

Schedule Other laws amended

The Schedule sets out the consequential amendments referred to in clause 45.

 


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