South Australian Numbered Acts South Australian Numbered ActsAfter section 66J insert:
Part 5C—Control Orders
66JA—Court may make control order
(1) The Magistrates Court may, on application made by the Commissioner, make a control order relating to a registrable offender if satisfied on the balance of probabilities that—
(a) the registrable offender poses a risk to the safety and well-being of any child or children; and
(b) the making of the order will reduce that risk.
(2) In considering whether or not to make a control order under this section, and in considering the terms of the control order, the Court must have regard to the following matters:
(a) the circumstances and seriousness of each offence in relation to which the person is a registrable offender, including—
(i) the age of the registrable offender at the time each offence was committed; and
(ii) the age of each victim of each offence as at the time the offence was committed; and
(iii) the differences between those ages;
(b) the period of time since each offence in paragraph (a) was committed (disregarding any period during which the registrable offender was in government custody);
(c) the registrable offender's total criminal record;
(d) the effect of the order sought on the registrable offender in comparison with the level of the risk that a further registrable offence may be committed by the registrable offender;
(e) whether the registrable offender has breached a provision of this Act or a restraining order under Part 4 Division 7 of the Summary Procedure Act 1921 (including a foreign restraining order (within the meaning of the Summary Procedure Act 1921 ) registered under section 99H of that Act);
(f) the personal circumstances of the registrable offender such as age, accommodation, employment, physical and mental condition and integration into the community,
and may have regard to any other matter the Court thinks fit.
(3) The Court may make a control order without being satisfied as to the matters in subsection (1) or having regard to the matters in subsection (2) if—
(a) the Commissioner and the registrable offender consent to the making of the order and its terms; and
(b) it is in the interests of justice to make the order without being satisfied of, or having regard to, those matters.
(4) In considering whether it is in the interests of justice to make an order under subsection (3), the Court may have regard to the following:
(a) whether the registrable offender has obtained legal advice in relation to the making of the order;
(b) whether the registrable offender—
(i) has impaired intellectual functioning; or
(ii) is subject to a guardianship order (within the meaning of the Guardianship and Administration Act 1993 ); or
(iii) is illiterate, or is not literate in the English language; or
(iv) may not, for some other reason, understand the effect of consenting to the making of the order.
66JB—Terms of control order
(1) A control order may prohibit or restrict any conduct, including (without limitation)—
(a) associating with, or communicating with, a specified person or persons of a specified class; or
(b) being present at, or being in the vicinity of, a specified place or premises or a place or premises of a specified class; or
(c) undertaking specified employment or employment of a specified kind; or
(d) other conduct of a kind specified in the order.
(2) The Court must, on making or varying a control order in relation to a registrable offender, take all reasonable steps to explain to the registrable offender the terms of the control order and in particular—
(a) the registrable offender's obligations under the control order; and
(b) the consequences that may follow from a failure to comply with the control order.
66JC—Interim control orders
(1) The Magistrates Court may, on an application under section 66JA, make an interim control order if the Court is satisfied that it is appropriate to do so in all of the circumstances.
(2) An interim control order may include any prohibition that may be included in a control order (and section 66JB(2) applies to the interim control order as if it were a control order).
66JD—Duration of order
(1) A control order remains in force for a period of 5 years or such lesser period as specified in the control order.
(2) An interim control order remains in force for the period specified by the Court in making the order, or until further order of the Court.
66JE—Variation and revocation of order
(1) The Magistrates Court may, on application made by the Commissioner or the registrable offender to whom a control order or interim control order applies, vary or revoke the order.
(2) A registrable offender may only apply under subsection (1) with the permission of the Court.
(3) The Court may only grant permission under subsection (2) if satisfied that—
(a) there has been a material change in circumstances relating to the registrable offender or the order; and
(b) it is in the interests of justice to grant permission.
(4) In proceedings for the variation or revocation of a control order or interim control order—
(a) the Commissioner and the registrable offender are parties to the proceedings; but
(b) in the case of an application made by the Commissioner, the Court may, if satisfied that the application has been served on the registrable offender, hear and determine the proceedings whether or not the registrable offender chooses to participate in the hearing.
66JF—Offence to contravene or fail to comply with order
(1) A person who contravenes or fails to comply with a control order or interim control order is guilty of an offence.
Maximum penalty: Imprisonment for 5 years.
(2) For the purposes of determining whether a communication amounts to a breach of a control order or interim control order that prohibits or restricts certain communication, a registrable offender will be taken to have communicated with a specified person, or a person within a specified class, if the other person, in the circumstances of the communication, appears to be the specified person or within the specified class of person.
(3) A person does not commit an offence against this section in respect of an act or omission unless the person knew that the act or omission constituted a contravention of, or failure to comply with, the order or was reckless as to that fact.
66JG—Service of order
(a) makes an order imposing a control order or interim control order on a registrable offender; or
(b) makes an order, on application by the Commissioner, varying or revoking a control order or interim control order that has been imposed on a registrable offender,
and the registrable offender is not present in Court at the time—
(c) the Commissioner must cause a copy of the order imposing, varying or revoking the control order or interim control order to be served on the registrable offender; and
(d) in relation to the imposition or variation of a control order—the order does not take effect until a copy is served on the registrable offender.
(2) If the Commissioner is required to cause a copy of an order imposing, varying or revoking a control order or interim control order to be served on a registrable offender under subsection (1), a police officer may—
(a) require the registrable offender to remain at a particular place for so long as may be necessary for the order to be served; and
(b) if the registrable offender refuses or fails to comply with the requirement or the officer has reasonable grounds to believe that the requirement will not be complied with—arrest and detain the registrable offender in custody (without warrant) for—
(i) so long as may be necessary for the order to be served; or
(ii) 2 hours or such longer period as is approved by the Magistrates Court,
whichever is the lesser.
(3) The Magistrates Court may, on application by a police officer, extend a period of detention under this section if satisfied that it is appropriate to do so in the circumstances, but not so that the aggregate period of detention of the person exceeds 8 hours.