South Australian Numbered Acts South Australian Numbered Acts49—Insertion of Part 4 Division 5
After section 76B insert:
Division 5—Non-association and place restriction orders
77—Interpretation
In this Division—
"close family", in relation to a defendant, means the following people:
(a) the defendant’s spouse, or former spouse, or a person in a close personal relationship with the defendant;
(b) the defendant’s parents and grandparents (whether by blood or by marriage);
(c) the defendant’s children and grandchildren (whether by blood or by marriage);
(d) the defendant’s brothers and sisters (whether by blood or by marriage);
(e) the defendant’s guardians or carers;
"close personal relationship" has the same meaning as in Part 3 of the Family Relationships Act 1975 ;
"health service" means a health service within the meaning of the Health Care Act 2008 and includes any service of a kind prescribed by regulation for the purposes of this definition;
"non-association order" means an order under section 78—
(a) prohibiting a defendant—
(i) from being in company with a specified person; or
(ii) from communicating with that person by any means,
except at the times or in the circumstances (if any) specified in the order; or
(b) prohibiting a defendant—
(i) from being in company with a specified person; and
(ii) from communicating with that person by any means;
"place restriction order" means an order under section 78—
(a) prohibiting a defendant from frequenting or visiting a specified place or area except at the times or in the circumstances (if any) specified in the order; or
(b) prohibiting a defendant from frequenting or visiting a specified place or area at any time or in any circumstance;
"prescribed offence" means an indictable offence or an offence that would, if committed in this State, be an indictable offence;
"spouse"—a person is the spouse of another if they are legally married;
"welfare service" means services (whether provided as public or private services) relating to the provision of housing, employment benefits, rental assistance or other financial assistance, family support and other community welfare services necessary for the promotion, protection, development and maintenance of the well-being of persons.
78—Non-association and place-restriction orders
(1) A complaint may be made under this section by a police officer.
(2) On a complaint, the Court may make a non-association order or a place restriction order (or both) in respect of the defendant if—
(a) the defendant has, within the period of 2 years immediately preceding the making of the complaint, been convicted (in this State or elsewhere) of a prescribed offence; and
(b) the Court is satisfied that it is reasonably necessary to do so to ensure that the defendant does not commit any further prescribed offences.
(3) A non-association order or a place restriction order—
(a) operates for the period specified in the order (which must be not more than 2 years); and
(b) may specify that it is to commence at the end of a period of imprisonment being served by the defendant.
(4) The Court may—
(a) in determining whether it is reasonably necessary to make a non-association order or a place restriction order to ensure that the defendant does not commit any further prescribed offences, take into account events that have taken place outside of this State; and
(b) make a non-association order or a place restriction order against a defendant whether resident in or outside of this State.
(5) If a defendant disputes some or all of the grounds on which a non-association order or a place restriction order is sought or made but consents to the order, the Court may make or confirm the order without receiving any further submissions or evidence as to the grounds.
79—Non-association and place restriction orders not to restrict certain associations or activities
(1) The persons specified in a non-association order as persons with whom the defendant must not associate may not include any member of the defendant’s close family.
(2) Despite subsection (1), a member of the defendant’s close family may be specified in a non-association order if—
(a) the defendant requests that the member be specified in the order; or
(b) the Court has reasonable cause to believe, having regard to the criminal antecedents of the member and the defendant, the nature and pattern of criminal activity in which the member and the defendant have both participated or any other matter the Courts thinks fit, that there is an appreciable risk that the defendant may be involved in conduct that could involve the commission of a further prescribed offence if the defendant associates with that member.
(3) The places or areas specified in a place restriction order as places or areas that the defendant must not frequent or visit may not include—
(a) the defendant’s place of residence or the place of residence of any member of the defendant’s close family; or
(b) any place of work at which the defendant is regularly employed; or
(c) any educational institution at which the defendant is enrolled; or
(d) any place of worship that the defendant regularly attends.
(4) Despite subsection (3), a place or area referred to in that subsection may be specified in a place restriction order if—
(a) the defendant requests that the place or area be specified in the order; or
(b) the Court has reasonable cause to believe, having regard to the ongoing nature and pattern of participation of the defendant in criminal activity occurring at that place or area, that there is an appreciable risk that the defendant may be involved in conduct that could involve the commission of a further prescribed offence if the defendant frequents or visits that place or area.
80—Issue of non-association or place restriction order in absence of defendant
(1) A non-association order or a place restriction order may be made in the absence of the defendant if the defendant was required by summons or conditions of bail to appear at the hearing of the complaint and failed to appear.
(2) A non-association order or a place restriction order may be made in the absence of the defendant and despite the fact that the defendant was not summoned to appear at the hearing of the complaint, but in that case, the Court must summon the defendant to appear before the Court to show cause why the order should not be confirmed.
(3) The Court may make an order under subsection (2) on the basis of evidence received in the form of an affidavit but, in that case—
(a) the deponent must, if the defendant so requires, appear personally at the proceedings for confirmation of the order to give oral evidence of the matters referred to in the affidavit; and
(b) if the deponent does not appear personally to give evidence in pursuance of such a requirement, the Court may not rely on the evidence contained in the affidavit for the purpose of confirming the order.
(4) The Court may, from time to time without requiring the attendance of any party, adjourn the hearing to which a defendant is summoned under subsection (2) to a later date if satisfied that the summons has not been served or that there is other adequate reason for the adjournment.
(5) The date fixed in the first instance for the hearing to which a defendant is summoned under subsection (2) must be within 7 days of the date of the order, and the date fixed under subsection (4) for an adjourned hearing must be within 7 days of the date on which the adjournment is ordered, unless the Court is satisfied—
(a) that a later date is required to enable the summons to be served; or
(b) that there is other adequate reason for fixing a later date.
(6) A non-association order or a place restriction order made under subsection (2)—
(a) continues in force until the conclusion of the hearing to which the defendant is summoned or, if the hearing is adjourned, until the conclusion of the adjourned hearing; but
(b) will not be effective after the conclusion of the hearing to which the defendant is summoned, or the adjourned hearing, unless the Court confirms the order—
(i) on failure of the defendant to appear at the hearing in obedience to the summons; or
(ii) having considered any evidence given by or on behalf of the defendant; or
(iii) with the consent of the defendant.
(7) The Court may confirm a non-association order or a place restriction order in an amended form.
(8) If a hearing is adjourned under this section, the Court need not be constituted at the adjourned hearing of the same judicial officer as ordered the adjournment.
81—Service
(1) Subject to the making of an order under subsection (4), a non-association order or place restriction order must be served on the defendant personally and is not binding on the defendant until it has been so served.
(2) If a non-association order or place restriction order is confirmed in an amended form or is varied before being confirmed or at any other time, subject to the making of a declaration under subsection (4) or subsection (5)—
(a) the order in its amended or varied form must be served on the defendant personally; and
(i) the amendment or variation is not binding on the defendant; but
(ii) the order as in force prior to the amendment or variation continues to be binding on the defendant.
(3) If a police officer has reason to believe that a person is subject to a non-association order or place restriction order that has not been served on the person, the officer may—
(a) require the person to remain at a particular place for—
(i) so long as may be necessary for the order, and, if the order is subject to confirmation, the summons to appear before the Court to show cause why the order should not be confirmed, to be served on the person; or
(ii) 2 hours,
whichever is the lesser; and
(b) if the person 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 person in custody (without warrant) for the period referred to in paragraph (a).
(4) If a police officer satisfies the Court that all reasonable efforts have been made to effect personal service of an order on a defendant in accordance with this section but that those efforts have failed, the Court may declare that subsection (2)(a) does not apply and may make such orders as it thinks fit in relation to substituted service (and in such a case, the non-association order or place restriction order will not be binding on the defendant until it has been served in accordance with the orders for substituted service).
(5) If the Court is satisfied that the order in its amended or varied form is more favourable to the defendant, the Court may declare that subsection (2)(b) does not apply and that the amendment or variation is to be binding on the defendant as from the day of the declaration or such other day as the Court specifies.
82—Variation or revocation of non-association or place restriction order
(1) The Court may vary or revoke a non-association order or place restriction order on application by a police officer or the defendant.
(2) An application for variation or revocation of a non-association order or place restriction order may only be made by the defendant with the permission of the Court and permission is only to be granted if the Court is satisfied there has been a substantial change in the relevant circumstances since the order was made or last varied.
(3) The Court must, before varying or revoking an order under this section—
(a) allow all parties a reasonable opportunity to be heard on the matter; and
(b) have regard to the same factors that the Court is required to have regard to in considering whether or not to make a non-association order or place restriction order and in considering the terms of such an order.
83—Contravention of non-association and place restriction orders
(1) A person who contravenes or fails to comply with a non-association order or place restriction order is guilty of an offence.
Maximum penalty:
(a) for a first offence—imprisonment for 6 months;
(b) for a subsequent offence—imprisonment for 2 years.
(2) Subsection (1) does not apply if the person establishes that he or she had a reasonable excuse for the contravention or failure to comply.
(3) Without limiting subsection (2), it is a reasonable excuse for associating with a specified person in contravention of a non-association order if—
(a) the person did so in compliance with an order of a court; or
(b) the person did so unintentionally and terminated the association as soon as was reasonably practicable.
(4) Without limiting subsection (2), it is a reasonable excuse for frequenting or visiting a specified place or area in contravention of a place restriction order if—
(a) the person did so in compliance with an order of a court; or
(b) the person did so unintentionally and left the place or area as soon as was reasonably practicable; or
(c) the person needed to frequent or visit the place or area in order to—
(i) receive a health service or a welfare service; or
(ii) obtain legal advice or otherwise be provided with legal services.