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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Criminal Law Consolidation (Mental Impairment) Amendment
Bill 2016
A BILL FOR
An Act to amend the
Criminal
Law Consolidation Act 1935
.
Contents
Part 2—Amendment of Criminal Law
Consolidation Act 1935
4Amendment of section
267A—Definitions
5Amendment of section
269A—Interpretation
6Amendment of section 269C—Mental
competence
11Insertion of Part 8A Division 3A
Subdivision 1—Principle on which
court is to act
269NAPrinciple on
which court is to act
Subdivision 2—Making, variation and
revocation of Division 3A orders
269NCCourt may
direct defendant to surrender firearm etc
269NDVariation or
revocation of condition of Division 3A order
Subdivision 3—Administrative
detention for defendant released on licence under this Division
269NEAdministrative detention
for defendant released on licence under this Division
Subdivision 4—Custody, supervision
and care
269NGCustody,
supervision and care
Subdivision 5—Effect of supervening
imprisonment on Division 3A order
269NHEffect of
supervening imprisonment on Division 3A order
12Amendment of heading to Part 8A Division
4
13Insertion of Part 8A Division 4 Subdivision
1
Subdivision 1—Principle on which court
is to act
269NIPrinciple on
which court is to act
14Insertion of heading to Part 8A Division 4
Subdivision 2
15Amendment of section 269O—Supervision
orders
16Amendment of section 269OA—Court may
direct defendant to surrender firearm etc
17Amendment of section 269P—Variation or
revocation of supervision order
18Amendment of section 269Q—Report on
mental condition of defendant
19Amendment of section 269R—Reports and
statements to be provided to court
21Amendment of section 269T—Matters to
which court is to have regard
22Amendment of section 269U—Revision of
supervision orders
23Insertion of Part 8A Division 4 Subdivision
3
Subdivision 3—Continuing supervision
orders
269UAApplication for continuing
supervision
269UBContinuing supervision
orders
269UCVariation or
revocation of continuing supervision order
Subdivision 4—Administrative detention
for defendant released on licence under this Division
269UEAdministrative detention
for defendant released on licence under this Division
24Insertion of heading to Part 8A Division 4
Subdivision 5
25Amendment of section 269V—Custody,
supervision and care
26Insertion of heading to Part 8A Division 4
Subdivision 6
27Insertion of Part 8A Division 4A
Division 4A—Interstate transfer of
persons subject to supervision order
269VDTransfer of
persons from South Australia to another participating jurisdiction
269VETransfer of
persons from participating jurisdiction to South Australia
28Amendment of section
269Y—Appeals
29Amendment of section 269ZB—Arrest of
person who escapes from detention etc
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Criminal Law Consolidation (Mental
Impairment) Amendment Act 2016.
This Act will come into operation on a day to be fixed by
proclamation.
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 267A—Definitions
Section 267A(1)—after the definition of drug
insert:
intoxication means a temporary disorder, abnormality or
impairment of the mind that results from the consumption or administration of a
drug;
5—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;
continuing supervision order—see section
269UB;
(2) Section 269A(1)—after the definition of defensible
insert:
Division 3A order—see section 269NB;
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), definition of intoxication—delete
the definition and substitute:
intoxication means a temporary disorder, abnormality or
impairment of the mind that results from the consumption or administration of a
drug;
(4) Section 269A(1)—after the definition of judge
insert:
limiting term for a supervision order—see section
269O;
medical practitioner means a registered medical practitioner
or registered dentist;
(5) Section 269A(1), definition of mental
impairment—delete "but does not include intoxication"
(6) Section 269A(1)—after the definition of objective
element insert:
prescribed authority means—
(a) the person for the time being performing the duties, or holding or
acting in the position, of the Clinical Director, Forensic Mental Health Service
South Australia; or
(b) if no such position exists—the person declared by the
regulations to be the prescribed authority for the purposes of this
Part;
(7) Section 269A(1)—after the definition of
psychiatrist insert:
recreational use of a drug—consumption of a drug is to
be regarded as recreational use of the drug 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;
self-induced—see subsections (3) and (4);
(8) Section 269A(1)—after the definition of supervision
order insert:
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
(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;
(9) Section 269A—after subsection (2) insert:
(3) Intoxication
resulting from the recreational use of a drug is to be regarded as
self-induced.
(4) If a person
becomes intoxicated as a result of the combined effect of the therapeutic
consumption of a drug and the recreational use of the same or another drug, the
intoxication is to be regarded as self-induced even though in part attributable
to therapeutic consumption.
6—Amendment
of section 269C—Mental competence
(1) Section 269C(b)—delete paragraph (b) and substitute:
(b) does not know that the conduct is wrong; that is, the person could not
reason about whether the conduct, as perceived by reasonable people, is wrong;
or
Note—
Paragraph (b) adopts the test as stated and excludes from consideration
whether the defendant could reason with a moderate degree of sense and composure
as set out in R v Porter (1936) 55 CLR 182.
(2) Section 269C(c)—before "unable" insert:
totally
(3) Section 269C—after its present contents as amended by this
section (now to be designated as subsection (1)) insert:
(2) If, on an investigation under this Division, a person is found to be
mentally incompetent to commit an offence and the trial judge is satisfied, on
the balance of probabilities, that the mental impairment at the time of the
conduct alleged to give rise to the offence was caused (either wholly or in
part) by self-induced intoxication (whether the intoxication occurred at the
time of the relevant conduct or at any other time before the relevant conduct),
the person may not be dealt with under this Part but may (if appropriate) be
dealt with under Part 8.
7—Amendment
of section 269F—What happens if trial judge decides to proceed first with
trial of defendant's mental competence to commit offence
(1) Section 269F, subsection B(3)—delete "offence but" and
substitute:
offence, and (subject to Division 3A)
(2) Section 269F, subsection B(3)—delete "this Part" and
substitute:
Division 4 Subdivision 2
8—Amendment
of section 269G—What happens if trial judge decides to proceed first with
trial of objective elements of offence
(1) Section 269G, subsection B(3)(a)—delete "offence and" and
substitute:
offence, and (subject to Division 3A)
(2) Section 269G, subsection B(3)(a)—delete "this Part" and
substitute:
Division 4 Subdivision 2
(3) Section 269G, subsection B(5)(b)—after "not guilty of the
offence, and" insert:
(subject to Division 3A)
(4) Section 269G, subsection B(5)(b)—delete "this Part" and
substitute:
Division 4 Subdivision 2
9—Amendment
of section 269M—What happens if trial judge decides to proceed first with
trial of defendant's mental fitness to stand trial
(1) Section 269M, subsection B(2)—delete "effect and" and
substitute:
effect, and (subject to Division 3A)
(2) Section 269M, subsection B(2)—delete "this Part" and
substitute:
Division 4 Subdivision 2
10—Amendment
of section 269N—What happens if trial judge decides to proceed first with
trial of objective elements of offence
(1) Section 269N, subsection B(3)—delete "effect and" and
substitute:
effect, and (subject to Division 3A)
(2) Section 269N, subsection B(3)—delete "this Part" and
substitute:
Division 4 Subdivision 2
11—Insertion
of Part 8A Division 3A
After section 269N insert:
Division 3A—Disposition of persons with mental
impairment charged with summary and minor indictable
offences
Subdivision 1—Principle on which court is to
act
269NA—Principle on which court is to
act
(1) The paramount
consideration of the court in determining whether to release a defendant under
this Division, or the conditions of a licence, must be to protect the safety of
the community (whether as individuals or in general).
(2) The paramount consideration of the safety of the community outweighs
the principle that restrictions on the defendant's freedom and personal autonomy
should be kept to a minimum.
Subdivision 2—Making, variation and revocation
of Division 3A orders
269NB—Division 3A orders
(1) This section
applies in respect of a defendant who has been charged with a summary offence or
a minor indictable offence in relation to which the court has
found—
(a) on an investigation under Division 2—that the objective elements
of the offence are established but the defendant is not guilty of the offence
because the defendant was mentally incompetent to commit the offence;
or
(b) on an investigation under Division 3—that the objective elements
of the offence are established but the defendant is mentally unfit to stand
trial for the offence.
(a) dismiss the charge and release the defendant unconditionally;
or
(b) declare the defendant to be liable to supervision under Division 4
Subdivision 2; or
(c) make an order (a
Division 3A order) releasing the defendant on licence for the
period (which must not exceed 5 years) specified by the court in the licence;
or
(d) adjourn the proceedings; or
(e) remand the defendant on bail; or
(f) make any other order that the court thinks fit.
(3) If a Division 3A
order is made releasing the defendant on licence, the licence is subject to the
following conditions:
(a) the conditions imposed by
subsection (4)
;
(b) any other condition
decided by the court and specified in the licence.
(4) Subject to this
Act, every licence under
subsection (2)(c)
is subject to the following conditions:
(a) a condition
prohibiting the defendant from possessing a firearm or ammunition (both within
the meaning of the
Firearms
Act 2015
) or any part of a firearm;
(b) 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.
(5) A court may
only vary or revoke the conditions imposed by
subsection (4)
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.
(6) Without limiting the generality of
subsection (3)(b)
, release on licence under a Division 3A order may, for example, be subject
to—
(a) a condition that the defendant reside at specified premises;
or
(b) a condition that the defendant be under the care of a responsible
person (who must be specified in the licence); or
(c) a condition that the defendant undergo assessment or treatment (or
both) relating to the defendant's mental condition; or
(d) a condition that the defendant be monitored by use of an electronic
device approved under section 4 of the
Correctional
Services Act 1982
; or
(e) any other condition that the court thinks fit.
(7) For the purpose of assisting a court to determine proceedings under
this Division, the court may require the Crown to provide the court with a
report setting out, so far as reasonably ascertainable, the views
of—
(a) the next of kin of the defendant; and
(b) the victim (if any) of the defendant's conduct.
269NC—Court may direct defendant to surrender
firearm etc
(1) The court by
which a defendant is declared to be liable to a Division 3A order may, in
relation to the condition imposed by
section 269NB(4)(a)
, direct the defendant to immediately surrender at a police station
specified by the court any firearm, ammunition or part of a firearm owned or
possessed by the defendant.
(2) No criminal liability attaches to a person to the extent that the
person is complying with a direction under this section.
(3) The
Commissioner of Police must deal with any surrendered firearm, ammunition or
part of a firearm in accordance with the scheme set out in the
regulations.
(4) No compensation
is payable by the Crown or any other person in respect of the exercise of a
function or power under this section.
(5) The regulations may provide for the payment, recovery or waiver of
fees in respect of this section.
269ND—Variation or revocation of condition of
Division 3A order
At any time during the period that a defendant is subject to a Division 3A
order, the court 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 (including a person who has been specified in the licence as a
responsible person), vary or revoke the order and, if the order is revoked,
make, in substitution for the order, any other order that the court might have
made under this Division in the first instance.
Subdivision 3—Administrative detention for
defendant released on licence under this Division
269NE—Administrative detention for defendant
released on licence under this Division
(1) If a defendant who has been released on licence under a Division 3A
order has breached, or is likely to breach, a condition of the order, the
prescribed authority may issue an order (an administrative detention
order) that the defendant be detained in a specified place for a
specified period (which must not exceed 14 days).
(2) An administrative detention order must—
(a) be directed to the Commissioner of Police and police officers
generally; and
(b) be in writing in the form approved by the Minister.
(3) A person in respect of whom an administrative detention order has been
issued who is taken into the care and control of a police officer under this
Subdivision must be given a copy of the order as soon as practicable.
269NF—Powers of police officers relating to persons
in respect of whom an administrative detention order has been
issued
(1) This section
applies to a person in respect of whom an administrative detention order has
been issued under
section 269NE
.
(2) A police officer may, subject to this section, exercise the following
powers in relation to a person to whom this section applies:
(a) the police officer may take the person into the officer's care and
control;
(b) the police officer may transport the person from place to
place;
(c) the police officer may restrain the person and otherwise use force in
relation to the person as reasonably required in the circumstances;
(d) the police officer may enter and remain in a place where the officer
reasonably suspects the person may be found;
(e) the police officer may use reasonable force to break into a place when
that is reasonably required in order to take the person into the officer's care
and control;
(f) the police officer may search the person's clothing or possessions and
take possession of anything in the person's possession that the person may use
to cause harm to the person's self or others or property.
(3) A police officer who takes the person into the officer's care and
control must, as soon as practicable, transport the person, or arrange for the
person to be transported by some other police officer, in accordance with the
administrative detention order.
(4) The powers conferred by this section continue to be exercisable as
reasonably required for the purpose of enabling or facilitating the medical
examination or treatment of the person.
(5) A search of a person must be carried out expeditiously and in a manner
that avoids, as far as reasonably practicable, causing the person any
humiliation or offence.
(6) Anything taken into the possession of a police officer under this
section may be held for as long as is necessary for reasons of safety, but must
otherwise be returned to the person from whom it was taken or dealt with
according to law.
Subdivision 4—Custody, supervision and
care
269NG—Custody, supervision and
care
(1) If a defendant is committed to detention under this Division, the
defendant is in the custody of the Minister and the Minister may give directions
for the custody, supervision and care of the defendant the Minister considers
appropriate.
(2) The Minister may—
(a) place the defendant under the custody, supervision and care of
another; and
(b) if there is no practicable alternative—direct that a defendant
be kept in custody in a prison.
(3) Supervisory responsibilities arising from conditions on which a person
is released on licence are to be divided between the Parole Board and the
Minister in the following way:
(a) the supervisory responsibilities are to be exercised by the Minister
insofar as they relate to treating or monitoring the mental condition of the
person; and
(b) the supervisory responsibilities are in all other respects to be
exercised by the Parole Board.
(4) The Minister or
the Parole Board (as the case may be) may delegate a power or function under
this section—
(a) to a person for the time being performing particular duties or holding
or acting in a particular position; or
(b) to any other person or body that, in the delegator's opinion, is
competent to perform or exercise the relevant functions or powers.
(5) A delegation under
subsection (4)
—
(a) must be by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the ability of the delegator to act in any
matter; and
(d) is revocable at will by the delegator.
Subdivision 5—Effect of supervening
imprisonment on Division 3A order
269NH—Effect of supervening imprisonment on
Division 3A order
(1) If a person who
has been released on licence under this Division commits an offence while
subject to the licence and is sentenced to imprisonment for the offence, the
Division 3A order is suspended for the period the person is in prison serving
the term of imprisonment.
(2) In determining when the term of a Division 3A order comes to an end,
the period of a suspension under
subsection (1)
is not to be taken into account.
12—Amendment
of heading to Part 8A Division 4
Heading to Part 8A Division 4—delete "Part" and
substitute:
Division
13—Insertion
of Part 8A Division 4 Subdivision 1
After the heading to Part 8A Division 4 insert:
Subdivision 1—Principle on which court is to
act
269NI—Principle on which court is to
act
(1) The paramount
consideration of the court in determining whether to release a defendant under
this Division, or the conditions of a licence, must be to protect the safety of
the community (whether as individuals or in general).
(2) The paramount consideration of the safety of the community outweighs
the principle that restrictions on the defendant's freedom and personal autonomy
should be kept to a minimum.
14—Insertion
of heading to Part 8A Division 4 Subdivision 2
Before section 269O insert:
Subdivision 2—Making, variation and revocation of
supervision orders
15—Amendment
of section 269O—Supervision orders
(1) Section 269O(1)—delete "this Part" wherever occurring and
substitute in each case:
this Subdivision
(2) Section 269O(1)(b)(ii)(B)—delete subsubparagraph (B) and
substitute:
(B) any other condition decided by the court and specified in the
licence.
(3) Section 269O—after subsection (1) insert:
(1aa) Without limiting the generality of subsection (1)(b)(ii)(B), release
on licence under a supervision order may, for example, be subject
to—
(a) a condition that the defendant reside at specified premises;
or
(b) a condition that the defendant undergo assessment or treatment (or
both) relating to the defendant's mental condition; or
(c) a condition that the defendant be monitored by use of an electronic
device approved under section 4 of the
Correctional
Services Act 1982
; or
(d) any other condition that the court thinks fit.
(4) Section 269O(1a)(a)—delete "
Firearms
Act 1977
" and substitute:
16—Amendment
of section 269OA—Court may direct defendant to surrender firearm
etc
(1) Section 269OA(1)—delete "this Part" and substitute:
this Subdivision
(2) Section 269OA(1)—delete "surrender forthwith" and
substitute:
immediately surrender
17—Amendment
of section 269P—Variation or revocation of supervision
order
(1) Section 269P(1)—delete "and, if the order is revoked, make, in
substitution for the order, any other order that the court might have made under
this Division in the first instance"
(2) Section 269P—after subsection (1) insert:
(1a) On an application under subsection (1), the court may do 1 or more of
the following:
(a) confirm the present terms of the supervision order;
(b) vary the terms of the order;
(c) revoke the order and make in substitution for the order any other
order that the court might have made under this Subdivision in the first
instance;
(d) make any further order or direction that may be appropriate in the
circumstances.
18—Amendment
of section 269Q—Report on mental condition of
defendant
Section 269Q(1)—delete "this Part" and substitute:
this Subdivision
19—Amendment
of section 269R—Reports and statements to be provided to
court
Section 269R—delete "this Division" wherever occurring and substitute
in each case:
this Subdivision
Section 269S—delete the section
21—Amendment
of section 269T—Matters to which court is to have
regard
(1) Section 269T—delete "this Division" wherever occurring and
substitute in each case:
this Subdivision
(2) Section 269T(2)(a)—delete paragraph (a) and
substitute:
(a) has considered a report (an expert report) prepared by a
psychiatrist or other appropriate expert who has personally examined the
defendant, on—
(i) the mental condition of the defendant; and
(ii) the possible effects of the proposed action on the behaviour of the
defendant; and
(3) Section 269T(2)—after paragraph (b) insert:
(ba) is satisfied, on the balance of probabilities, that the safety of the
person or any member of the public will not be seriously endangered by the
person's release; and
(4) Section 269T(2a)—delete subsection (2a) and
substitute:
(2a) The court may, if it considers it necessary for the purpose of
assisting the court to decide proceedings under this Subdivision, require
further additional expert reports to be provided to the court.
22—Amendment
of section 269U—Revision of supervision orders
(1) Section 269U(1)—delete "this Division" and substitute:
this Subdivision
(2) Section 269U(2)—delete subsection (2) and substitute:
(2) After allowing the Crown and the person subject to the order a
reasonable opportunity to be heard on the application for review, the court may
do 1 or more of the following:
(a) confirm the present terms of the supervision order;
(b) amend the order so that it ceases to provide for release on licence
and provides instead for detention;
(c) amend the order by varying the conditions of the licence;
(d) make any further order or direction that may be appropriate in the
circumstances.
23—Insertion
of Part 8A Division 4 Subdivision 3
After section 269U insert:
Subdivision 3—Continuing supervision
orders
269UA—Application for continuing
supervision
(1) If a defendant
is declared to be liable to supervision under Subdivision 2, whether before or
after the commencement of this section, the Crown may, while the defendant
remains liable to supervision, apply to the Supreme Court to have the defendant
declared to be liable to supervision under a continuing supervision
order.
(2) An application cannot be made under
subsection (1)
more than 12 months before the end of the limiting term fixed in
respect of the relevant supervision order (and the limiting term will be taken
to continue until the application is determined by the Court).
(3) The Court must give the defendant at least 14 days written notice
of the date on which it intends to conduct the proceedings to determine the
application.
(4) The Court must,
before determining an application under this section, direct that 1 or more
legally qualified medical practitioners (to be nominated by a prescribed
authority for the purpose) inquire into the mental condition of the defendant
and report to the Court on the mental condition of the defendant,
including—
(a) a diagnosis and prognosis of the condition; and
(b) a suggested treatment plan for managing the defendant's
condition.
(5) Each of the following persons is entitled to appear and be heard in
proceedings under this section and must be afforded a reasonable opportunity to
call and give evidence, to examine or cross-examine witnesses, and to make
submissions to the Court:
(a) the defendant (personally or by counsel);
(b) the Director of Public Prosecutions;
(c) the Commissioner for Victims' Rights;
(d) the Parole Board;
(e) the Public Advocate;
(f) the next of kin of the defendant;
(g) the victim (if any) of the defendant's conduct;
(h) any other person with a proper interest in the matter.
(6) The Court may also take the following matters into consideration when
determining an application under this section:
(a) any relevant remarks made by the court by which the defendant was
declared to be liable to supervision under Subdivision 2;
(b) the behaviour of the defendant while under supervision;
(c) any treatment, care and rehabilitation of the defendant while under
supervision;
(d) any reports tendered, and submissions made, to the Court under this
section;
(e) the likelihood of the defendant committing an offence of a violent
nature should the defendant no longer be liable to supervision;
(f) the character, antecedents, age, means and physical and mental
condition of the defendant;
(g) the probable circumstances of the defendant should the defendant no
longer be liable to supervision;
(h) any other matters that the Court thinks are relevant.
(7) If the Court is satisfied, on the balance of probabilities, that the
defendant to whom the application relates could, if unsupervised, pose a serious
risk to the safety of the community or a member of the community, the Court must
declare that, on the expiry of the supervision order under Subdivision 2, the
defendant is liable to continuing supervision under this Subdivision.
269UB—Continuing supervision
orders
(1) If, under
section 269UA
, the Supreme Court declares a defendant to be liable to continuing
supervision, the Court may make an order (a continuing supervision
order)—
(a) committing the defendant to detention under this Subdivision;
or
(b) releasing the defendant on licence.
(2) If a continuing
supervision order is made releasing the defendant on licence, the licence is
subject to the following conditions:
(a) the conditions imposed by
subsection (3)
;
(b) any other
condition decided by the Court and specified in the licence.
(3) Subject to this
Act, every licence under this Subdivision is subject to the following
conditions:
(a) a condition
prohibiting the defendant from possessing a firearm or ammunition (both within
the meaning of the
Firearms
Act 2015
) or any part of a firearm;
(b) 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.
(4) Without limiting the generality of
subsection (2)(b)
, release on licence under a continuing supervision order may, for example,
be subject to—
(a) a condition that the defendant reside at specified premises;
or
(b) a condition that the defendant undergo assessment or treatment (or
both) relating to the defendant's mental condition; or
(c) a condition that the defendant be monitored by use of an electronic
device approved under section 4 of the
Correctional
Services Act 1982
; or
(d) any other condition that the Court thinks fit.
(5) The Court may
only vary or revoke the conditions imposed by
subsection (3)
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.
(6) A continuing supervision order remains in force against the defendant
until the order is revoked by the Court.
269UC—Variation or revocation of continuing
supervision order
(1) At any time after a continuing supervision order has been made in
respect of a defendant, the Supreme Court 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 or revoke the order.
(2) If the Court refuses an application by or on behalf of a defendant for
variation or revocation of a continuing supervision order, a later application
for variation or revocation of the order 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 application.
269UD—Appeal
(1) An appeal lies to the Full Court against a decision by the Supreme
Court—
(a) to make a declaration and order under this Subdivision; or
(b) not to make a declaration and order under this Subdivision.
(2) An appeal under this section may be instituted by the Crown or by the
person to whom the particular decision relates.
(3) Subject to a contrary order of the Full Court, an appeal cannot be
commenced after 10 days from the date of the decision against which the
appeal lies.
(4) On an appeal, the Full Court—
(a) may—
(i) confirm or annul the decision subject to appeal; or
(ii) remit the decision subject to appeal to the Supreme Court for further
consideration or reconsideration; and
(b) may make consequential or ancillary orders.
Subdivision 4—Administrative detention for
defendant released on licence under this Division
269UE—Administrative detention for defendant
released on licence under this Division
(1) If a defendant who has been released on licence under a supervision
order or a continuing supervision order has breached, or is likely to breach, a
condition of the order, the prescribed authority may issue an order (an
administrative detention order) that the defendant be detained in
a specified place for a specified period (which must not exceed 14
days).
(2) An administrative detention order must—
(a) be directed to the Commissioner of Police and police officers
generally; and
(b) be in writing in the form approved by the Minister.
(3) A person in respect of whom an administrative detention order has been
issued who is taken into the care and control of a police officer under this
Subdivision must be given a copy of the order as soon as practicable.
269UF—Powers of police officers relating to persons
in respect of whom an administrative detention order has been
issued
(1) This section
applies to a person in respect of whom an administrative detention order has
been issued under
section 269UE
.
(2) A police officer may, subject to this section, exercise the following
powers in relation to a person to whom this section applies:
(a) the police officer may take the person into the officer's care and
control;
(b) the police officer may transport the person from place to
place;
(c) the police officer may restrain the person and otherwise use force in
relation to the person as reasonably required in the circumstances;
(d) the police officer may enter and remain in a place where the officer
reasonably suspects the person may be found;
(e) the police officer may use reasonable force to break into a place when
that is reasonably required in order to take the person into the officer's care
and control;
(f) the police officer may search the person's clothing or possessions and
take possession of anything in the person's possession that the person may use
to cause harm to the person's self or others or property.
(3) A police officer who takes the person into the officer's care and
control must, as soon as practicable, transport the person, or arrange for the
person to be transported by some other police officer, in accordance with the
administrative detention order.
(4) The powers conferred by this section continue to be exercisable as
reasonably required for the purpose of enabling or facilitating the medical
examination or treatment of the person.
(5) A search of a person must be carried out expeditiously and in a manner
that avoids, as far as reasonably practicable, causing the person any
humiliation or offence.
(6) Anything taken into the possession of a police officer under this
section may be held for as long as is necessary for reasons of safety, but must
otherwise be returned to the person from whom it was taken or dealt with
according to law.
24—Insertion
of heading to Part 8A Division 4 Subdivision 5
Before section 269V insert:
Subdivision 5—Custody, supervision and
care
25—Amendment
of section 269V—Custody, supervision and care
Section 269V(1)—delete "this Part" and substitute:
this Division
26—Insertion
of heading to Part 8A Division 4 Subdivision 6
Before section 269VA insert:
Subdivision 6—Effect of supervening imprisonment on
an order under Division 4
27—Insertion
of Part 8A Division 4A
After section 269VA insert:
Division 4A—Interstate transfer of persons subject
to supervision order
269VB—Interpretation
In this Division—
Chief Psychiatrist means the person appointed to the position
of Chief Psychiatrist under the
Mental
Health Act 2009
;
corresponding law means a law, or a part of a law, of another
State or a Territory of the Commonwealth declared by the regulations to be a
corresponding law for the purposes of this Part;
corresponding Minister, in relation to a participating
jurisdiction, means the Minister or Ministers of that jurisdiction who is or are
responsible for the administration of the corresponding law of that
jurisdiction;
guardian—a person is the guardian of another if the
person is acting or appointed under any Act or law as the guardian of the
other;
interstate supervision order means an order made under a
corresponding law that corresponds or substantially corresponds to a supervision
order;
participating jurisdiction means another State or a Territory
of the Commonwealth in which a corresponding law is in force;
South Australian Minister means the Minister administering
this Part or, if there is more than 1 Minister administering this Part, those
Ministers acting jointly;
supervision order means—
(a) a Division 3A order; or
(b) a supervision order or a continuing supervision order made under
Division 4.
269VC—Informed consent
For the purposes of this Division, a person is to be taken to have given
informed consent to a transfer or interim disposition only if the person gives
written consent to the transfer or disposition (as the case requires)
after—
(a) the person has been given a clear explanation of the process involved
in the transfer or disposition and the reasons for the transfer or disposition,
containing sufficient information to enable the person to make a balanced
judgment; and
(b) any relevant questions asked by the person have been answered and the
person has understood the answers.
269VD—Transfer of persons from South Australia to
another participating jurisdiction
(1) A person who is subject to a supervision order may be transferred to a
participating jurisdiction if—
(a) the transfer is permitted under a corresponding law in that
participating jurisdiction; and
(b) the South Australian Minister makes an order under this section
authorising the transfer.
(2) The South Australian Minister may make an order under this section
authorising a transfer if—
(a) the Chief Psychiatrist has certified in writing that the transfer is
for the benefit of the person subject to the supervision order; and
(b) the South Australian Minister is satisfied that the transfer is
permitted under a corresponding law in the participating jurisdiction;
and
(c) the South Australian Minister is satisfied that—
(i) the person subject to the order has given informed consent to the
transfer; or
(ii) if the person is incapable of giving informed consent—his or
her guardian has given informed consent to the transfer.
(3) On the transfer of a person from South Australia in accordance with an
order under this section, the supervision order to which the person is subject
is in force only if the person returns to South Australia and while the person
is in South Australia.
269VE—Transfer of persons from participating
jurisdiction to South Australia
(1) A person who is subject to an interstate supervision order may be
transferred to South Australia if—
(a) the transfer is permitted by or under a corresponding law in the
participating jurisdiction in which the supervision order was made;
and
(b) the South Australian Minister has agreed to the transfer and
determined an interim disposition for the person.
(2) The South Australian Minister may agree to a transfer of a person to
South Australia and determine an interim disposition if—
(a) the Chief Psychiatrist has certified in writing that the transfer is
for the benefit of the person and there are facilities or services available for
the custody, care or treatment of the person (as the case requires);
and
(b) the South Australian Minister is satisfied that the transfer is
necessary for the maintenance or re-establishment of family relationships or
relationships with people who can assist in supporting the person; and
(c) the South Australian Minister is satisfied that—
(i) the person subject to the order has given informed consent to the
transfer and interim disposition; or
(ii) if the person is incapable of giving informed consent—his or
her guardian has given informed consent to the transfer and interim
disposition.
(3) The interim dispositions that the South Australian Minister may
determine under this section are—
(a) that the person
be released on licence as if the person were subject to a Division 3A order
releasing the person on licence subject to the conditions imposed by section
269NB(4) and any other conditions imposed by the Minister; or
(b) that the person be detained as if the person were subject to a
supervision order under Division 4 committing the person to detention;
or
(c) that the person be released on licence as if the person were subject
to a supervision order under Division 4 releasing the person on licence subject
to the conditions imposed by section 269O(1a) and any other conditions imposed
by the Minister.
(4) On the transfer of a person to South Australia under this
section—
(a) if the interim disposition is that the person be detained—the
person is to be so detained; and
(b) if the interim disposition is that the person be released on
licence—the person is taken to have been so released on licence under a
Division 3A order or a supervision order made under Division 4.
(5) Nothing in this section is to be taken as requiring the South
Australian Minister to agree to a transfer of a person to South
Australia.
28—Amendment
of section 269Y—Appeals
Section 269Y(1)—delete "this Part" and substitute:
Division 3A or Division 4 Subdivision 2
29—Amendment
of section 269ZB—Arrest of person who escapes from detention
etc
Section 269ZB(1)—delete "member of the police force" and
substitute:
police officer