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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Attorney-General's Portfolio)
Bill 2011
A BILL FOR
An Act to amend the Criminal
Law Consolidation Act 1935, the Criminal
Law (Sentencing) Act 1988, the Director
of Public Prosecutions Act 1991, the District
Court Act 1991, the Enforcement
of Judgments Act 1991, the Environment,
Resources and Development Court Act 1993, the Judicial
Administration (Auxiliary Appointments and Powers) Act 1988, the
Justices
of the Peace Act 2005, the Magistrates
Act 1983, the Magistrates
Court Act 1991, the Supreme
Court Act 1935 and the Young
Offenders Act 1993.
Contents
Part 1—Preliminary
1Short title
2Commencement
3Amendment
provisions
Part 2—Amendment of Criminal Law
Consolidation Act 1935
4Amendment of
section 285BA—Power to serve notice to admit facts
Part 3—Amendment of Criminal Law
(Sentencing) Act 1988
5Insertion of
section 9D
9DERD Court
sentencing conferences
6Amendment of
section 18—Court may add or substitute certain penalties
7Insertion of section
19D
19DDeferral of sentence
following ERD Court sentencing conference
8Insertion of
Part 3 Division 4
Division 4—Effect of imprisonment for
contempt
33CEffect of
imprisonment for contempt
9Amendment of
section 48—Special provisions relating to supervision
10Amendment of section 50—Community
corrections officer to give reasonable directions
11Amendment of
section 58—Orders that court may make on breach of bond
12Amendment of section 70I—Court may remit
or reduce pecuniary sum or make substitute orders
13Amendment of
section 71—Community service orders may be enforced by
imprisonment
Part 4—Amendment of Director of
Public Prosecutions Act 1991
14Substitution
of section 6A
6ADelegation
Part 5—Amendment of District Court
Act 1991
15Amendment of section 32—Mediation
and conciliation
Part 6—Amendment of Enforcement of
Judgments Act 1991
16Amendment of
section 11—Authority to take possession of property
Part 7—Amendment of Environment,
Resources and Development Court Act 1993
17Amendment of
section 29—Costs
18Insertion of
section 40A
40ACustody
of litigant's funds and securities
Part 8—Amendment of Judicial
Administration (Auxiliary Appointments and Powers)
Act 1988
19Amendment of section 3—Appointment
of judicial auxiliaries
Part 9—Amendment of Justices of the
Peace Act 2005
20Amendment of
section 11—Disciplinary action, suspension and removal of justices
from office
Part 10—Amendment of Magistrates
Act 1983
21Insertion of Part 7
Part 7—Exercise of powers under
Commonwealth Acts
23Arrangements with
Commonwealth
Part 11—Amendment of Magistrates
Court Act 1991
22Amendment of
section 3—Interpretation
Part 12—Amendment of Supreme Court
Act 1935
23Amendment of section 65—Mediation
and conciliation
Part 13—Amendment of Young Offenders
Act 1993
24Amendment of
section 41A—Conditional release from detention
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Attorney-General's
Portfolio) Act 2011.
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 285BA—Power to serve notice to admit
facts
(1) Section 285BA(1) to (3) (inclusive)—delete the
subsections and substitute:
(1) If a defendant is to be tried on information, the Director of Public
Prosecutions may serve on the defence a notice to admit specified
facts.
(2) The Director of Public Prosecutions must not, without the permission
of the court, serve such a notice on a defendant who is unrepresented.
(a) specify that it is to be complied with within a specified time or
within a time fixed by the court on application by the defence; and
(b) contain a warning, in the prescribed form, to the effect that, if the
defendant is convicted, the court is required to take an unreasonable failure to
make an admission in response to the notice into account in fixing
sentence.
(2) Section 285BA(5)—delete the subsection
Part 3—Amendment
of Criminal Law (Sentencing)
Act 1988
After section 9C insert:
9D—ERD Court sentencing
conferences
(1) Before sentencing a defendant, the ERD Court may, if the defendant
expresses contrition for the offence and consents to the convening of a
sentencing conference, convene a sentencing conference.
(2) A sentencing conference is to comprise—
(a) the defendant; and
(b) the defendant's legal representative (if any); and
(c) the prosecutor; and
(d) such representatives of persons affected by the commission of the
offence as the Court thinks appropriate; and
(e) such other persons as the Court thinks may contribute usefully to the
sentencing process.
(3) The primary purpose of a sentencing conference is to negotiate action
that the defendant is to take to make reparation for any injury, loss or damage
resulting from the offence, or to otherwise show contrition for the
offence.
6—Amendment
of section 18—Court may add or substitute certain
penalties
Section 18—after its present contents (now to be designated as
subsection (1)) insert:
(2) For the purposes of subsection (1), any component of the penalty
provided by the special Act other than imprisonment or a fine is to be
disregarded.
After section 19C insert:
19D—Deferral of sentence following ERD Court
sentencing conference
(1) The ERD Court may, on finding a person guilty of an offence (whether
or not it proceeds to conviction), make an order adjourning proceedings to a
specified date for the purpose of allowing the defendant to take action as
agreed at a sentencing conference convened by the ERD Court.
(2) As a general rule, proceedings should not be adjourned under this
section (whether by a single adjournment or a series of adjournments) for more
than 3 months from the date of the agreement reached at the sentencing
conference.
(3) This section does not limit any power that the Court has, apart from
this section, to adjourn proceedings or to grant bail in relation to any period
of adjournment.
8—Insertion
of Part 3 Division 4
After Part 3 Division 3 insert:
Division 4—Effect of imprisonment for
contempt
33C—Effect of imprisonment for
contempt
If a person is imprisoned for contempt of court—
(a) any sentence of imprisonment that the person has not yet begun to
serve (and any non-parole period in respect of that sentence) will not commence
until the expiry of the period of imprisonment for contempt; and
(b) any sentence of imprisonment that the person is then serving (and any
non-parole period in respect of that sentence) ceases to run for the period of
imprisonment for contempt.
9—Amendment
of section 48—Special provisions relating to
supervision
Section 48—after paragraph (c) insert:
and
(d) the person must not, during the period of supervision, leave the State
for any reason except in accordance with the written permission of the
CEO.
10—Amendment
of section 50—Community corrections officer to give reasonable
directions
(1) Section 50(1)—before paragraph (a) insert:
(aa) must give reasonable directions to the person requiring the person to
report to the officer on a regular basis; and
(2) Section 50(1)(a)(i)—delete subparagraph (i)
(3) Section 50(1)(a)(iii)—delete
subparagraph (iii)
11—Amendment
of section 58—Orders that court may make on breach of
bond
Section 58(3)(b)(i)(B)—delete subsubparagraph (B) and
substitute:
(B) in the case of a bond requiring performance of community
service—
• extend the period within which any uncompleted hours of community
service must be performed by not more than 6 months; or
• if the period within which the community service must be performed
has expired, impose a period of not more than 6 months within which any
uncompleted hours of community service must be performed; or
12—Amendment
of section 70I—Court may remit or reduce pecuniary sum or make substitute
orders
(1) Section 70I(3)—delete subsection (3) and substitute:
(3) On reconsidering a matter under this section, the Court
may—
(a) make an order—
(i) remitting the pecuniary sum; or
(ii) reducing the pecuniary sum by a specified amount; or
(iii) deferring payment of the pecuniary sum until such time as the Court
thinks fit (being a period not more than 2 years after the date of the
reconsideration of the matter); or
(iv) converting the order imposing the pecuniary sum into an order for
community service; or
(v) converting the order imposing the pecuniary sum into an
order—
(A) disqualifying the debtor from holding or obtaining a driver's licence
for a period not exceeding 6 months; or
(B) cancelling the debtor's driver's licence and disqualifying the debtor
from obtaining such a licence for a period not exceeding 6 months;
or
(b) make an order dealing with specified amounts of the pecuniary sum
(that, when aggregated, make up the whole) as follows:
(i) by remitting a specified amount of the pecuniary sum;
(ii) by deferring payment of a specified amount of the pecuniary sum until
such time as the Court thinks fit (being a period not more than 2 years after
the date of the reconsideration of the matter);
(iii) by converting the order in relation to a specified amount of the
pecuniary sum into an order for community service;
(iv) by converting the order in relation to a specified amount of the
pecuniary sum into an order—
(A) disqualifying the debtor from holding or obtaining a driver's licence
for a period not exceeding 6 months; or
(B) cancelling the debtor's driver's licence and disqualifying the debtor
from obtaining such a licence for a period not exceeding
6 months;
(v) by confirming the imposition of a specified amount of the pecuniary
sum; or
(c) confirm the order imposing the pecuniary sum.
(3a) The Court may make any ancillary order the Court thinks
appropriate.
(2) Section 70I(4)—delete "(b)"
(3) Section 70I(5)—after "community service" insert:
under subsection (3)(a)
(4) Section 70I(6)—after "pecuniary sum" insert:
under subsection (3)(a)
13—Amendment
of section 71—Community service orders may be enforced by
imprisonment
Section 71(8)—delete "the person's failure to comply with the
order is excusable on the ground of the person's obligations to remunerated
employment gained since the making of the order, and that the person" and
substitute:
the person who has failed to comply with the order requiring performance of
community service
Part 4—Amendment
of Director of Public Prosecutions
Act 1991
Section 6A—delete the section and substitute:
6A—Delegation
(1) The Director may delegate to a suitable person (including a person for
the time being performing particular duties or holding or acting in a particular
position) a function or power of the Director under this or any other
Act.
(2) A delegation under this section—
(a) must be by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the power of the Director to act in any matter;
and
(d) is revocable at will.
(3) A function or power delegated under this section may, if the
instrument of delegation so provides, be further delegated.
Part 5—Amendment
of District Court
Act 1991
15—Amendment
of section 32—Mediation and conciliation
Section 32(1)—delete "(whether sitting with assessors or not)
may, with or without the consent of the parties, and a Master or" and
substitute:
or Master (whether or not sitting with assessors) may, with or without the
consent of the parties, or
Part 6—Amendment
of Enforcement of Judgments
Act 1991
16—Amendment
of section 11—Authority to take possession of
property
Section 11(2)—delete subsection (2) and
substitute:
(2) In executing the warrant, the sheriff may—
(a) if the warrant relates to land—enter the land and eject from the
land any person who is not lawfully entitled to be on the land; or
(b) if the warrant relates to personal property—enter land and seize
and take possession of the property,
using appropriate means and such force as may be reasonably necessary in
the circumstances.
Part 7—Amendment
of Environment, Resources and Development Court
Act 1993
17—Amendment
of section 29—Costs
Section 29—after subsection (6) insert:
(6a) If the Court
considers that a party to proceedings before the Court has engaged in
misconduct, it may make an order for costs against that party in favour of any
other party to the proceedings.
(6b) However, no order for costs is to be made under subsection (6a)
unless the Court considers such an order to be necessary in the interests of
justice.
After section 40 insert:
40A—Custody of litigant's funds and
securities
(1) The Registrar is responsible for the proper custody of money paid into
the Court and securities delivered to the Court in connection with proceedings
in the Court.
(2) The Treasurer guarantees the safe keeping of any such money or
security from the time it comes into the Court's custody until it lawfully
ceases to be in that custody.
(3) Any liability arising under the guarantee will be satisfied from the
General Revenue of the State (which is appropriated to the necessary
extent).
(4) Money paid into the Court may be invested in a manner authorised by
the rules and any interest or accretions arising from the investment will be
dealt with as prescribed by the rules.
(5) Any money in the Court's custody that has remained unclaimed for 6
years or more may be dealt with under the Unclaimed
Moneys Act 1891.
Part 8—Amendment
of Judicial Administration (Auxiliary
Appointments and Powers) Act 1988
19—Amendment
of section 3—Appointment of judicial auxiliaries
Section 3—after subsection (7) insert:
(8) For the purposes of this section, if in order to be eligible for
appointment to a judicial office on a permanent basis a person must hold some
other judicial office, the person is to be regarded as eligible for appointment
to the judicial office on a permanent basis if he or she is eligible for
appointment to the other judicial office on a permanent basis or would be so
eligible but for the fact that he or she is over the age of
retirement.
Example—
To be eligible for appointment as a Judge of the Youth Court on a permanent
basis a person must hold office as a District Court Judge. For the purposes of
this section, a person is to be regarded as eligible for appointment as a Judge
of the Youth Court on a permanent basis if he or she is eligible for appointment
as a District Court Judge on a permanent basis or would be so eligible but for
the fact that he or she is over the age of retirement.
Part 9—Amendment
of Justices of the Peace
Act 2005
20—Amendment
of section 11—Disciplinary action, suspension and removal of justices
from office
(1) Section 11(3)—delete "If" and substitute:
Subject to subsection (4a), if
(2) Section 11(4)—after "suspension" insert:
under subsection (3)
(3) Section 11—after subsection (4) insert:
(4a) If a special
justice is charged with an offence other than an expiable offence, the special
justice is, by force of this subsection, suspended from office as a special
justice until proceedings based on the charge have been completed.
(4b) However, the Attorney-General may, on application by the special
justice, by notice in writing—
(a) cancel the suspension if satisfied that the outstanding charge should,
in the circumstances, be disregarded; and
(b) impose such conditions specifying or limiting the official powers that
the special justice may exercise as the Attorney-General considers
appropriate.
(4c) A purported exercise of power or authority by a special justice
suspended from office under subsection (3) or (4a) is not rendered
invalid by reason only of the suspension.
(4) Section 11(5)—delete "If" and substitute:
Subject to subsection (5a), if
(5) Section 11(5)(b)—delete paragraph (b) and substitute:
(b) is found guilty or convicted by a court of an offence that, in the
opinion of the Governor, shows the person to be unfit to hold office as a
justice; or
(6) Section 11—after subsection (5) insert:
(5a) If a special
justice is found guilty or convicted by a court of an offence other than an
expiable offence, the special justice is, by force of this subsection, removed
from office as a special justice.
(5b) However, the
Attorney-General may, on application by the special justice, by notice in
writing—
(a) reinstate the special justice if satisfied that the finding of guilt
or conviction should, in the circumstances, be disregarded; and
(b) impose such conditions specifying or limiting the official powers that
the special justice may exercise as the Attorney-General considers
appropriate.
Part 10—Amendment
of Magistrates
Act 1983
After Part 6 insert:
Part 7—Exercise of powers under Commonwealth
Acts
23—Arrangements with
Commonwealth
(1) The Governor may make an arrangement with the Governor-General of the
Commonwealth in relation to the performance of functions or the exercise of
powers by a magistrate under a Commonwealth Act.
(2) The Governor may arrange with the Governor-General for the variation
or revocation of an arrangement made under this section.
(3) A magistrate may perform functions and exercise powers under a
Commonwealth Act under such an arrangement concurrently with the functions and
powers conferred under this Act.
Part 11—Amendment
of Magistrates Court
Act 1991
22—Amendment
of section 3—Interpretation
(1) Section 3(1), after the definition of evidentiary
material insert:
interlocutory judgment includes—
(a) an interlocutory order; and
(b) an order or ruling relating to the admissibility or giving of
evidence;
(2) Section 3(1), definition of judgment—delete
"or order"
Part 12—Amendment
of Supreme Court
Act 1935
23—Amendment
of section 65—Mediation and conciliation
Section 65(1)—delete "may, with or without the consent of the
parties, and a master or" and substitute:
or master may, with or without the consent of the parties, or
Part 13—Amendment
of Young Offenders
Act 1993
24—Amendment
of section 41A—Conditional release from
detention
(1) Section 41A(2)—after paragraph (a) insert:
(ab) an application for release of the youth from detention may be
determined by the Training Centre Review Board no earlier than 7 days
before completion by the youth of at least two-thirds of the period of detention
in a training centre to which he or she has been sentenced;
(2) Section 41A(3)—after paragraph (a) insert:
(ab) an application for the release of the recidivist young offender may
be determined by the Youth Parole Board no earlier than 7 days before
completion by the offender of at least four-fifths of the period of detention in
a training centre to which he or she has been sentenced;