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Corrections and Sentencing Acts (Home
Detention) Bill
Circulation Print
EXPLANATORY MEMORANDUM
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of the Act.
Clause 2 provides for the commencement and expiry of the provisions of
the Act.
Sub-clause (1) brings Part 1 into operation on the date of Royal
Assent.
The amendments made by the Act will operate for a three year
pilot period. Sub-clauses (2) and (3) provide for the
commencement of the provisions repealing the scheme at the end
of three years.
Sub-clauses (4) and (5) ensure that upon passage, the scheme in
the Bill will commence on 1 January 2004 if not proclaimed to
come into operation before that date.
PART 2--AMENDMENTS TO SENTENCING ACT 1991
Clause 3 inserts a definition of home detention order into the Sentencing
Act.
Clause 4 provides that if an offender is remanded in custody after sentence
pending assessment of suitability for a home detention order, the
time in custody is to be reckoned as time served under the
sentence. The court must declare the time served and it is
required to be endorsed on the warrant or other authority for
imprisonment or detention or the home detention order if one is
made.
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551037 BILL LA CIRCULATION 8/5/2003
Clause 5 inserts a new Subdivision (1D) (dealing with home detention
orders) into Division 2 of Part 3 of the Sentencing Act as follows:
Proposed section 18ZT provides the court with the power to
make a home detention order where it is has sentenced a person
to a term of imprisonment of 12 months or less. It also specifies
those sentences for which a home detention order cannot be
made.
In proposed section 18ZU, sub-section (1) provides that an order
is not to be made unless the court is satisfied that in relation to
co-residents of or over the age of 18 years--
(a) the Secretary to the Department of Justice or a person
authorised by the Secretary has consulted with the
co-residents independently of the offender; and
(b) the co-residents have acknowledged in writing that they
understand the requirements of the home detention order
and their willingness to live in conformity with them; and
(c) having been duly consulted, where co-residents are
content for the offender to reside with them under a home
detention order, the co-residents have consented in
writing to this.
Sub-section (2) requires the court to ascertain the wishes and
feelings of any person under the age of 18 years who will reside
with the offender under the order.
Sub-sections (3) and (4) allow the court to dispense with the
consent of an adult co-resident if the court is satisfied that the
person lacks capacity to consent. The court must be satisfied
that--
(a) the wishes and feelings of the person have been ascertained;
and
(b) these have been considered in light of the understanding of
the person.
Proposed section 18ZV specifies the offences that preclude the
making of a home detention order.
In proposed section 18ZW, sub-section (1) sets out the
preconditions to the making of the order, being--
(a) the court must be satisfied that the person is a suitable
candidate for home detention;
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(b) the court must be satisfied that home detention is an Clause
appropriate means by which the sentence is to be served.
In determining whether it is satisfied of the matters referred
to in paragraphs (a) and (b), it is anticipated that the court
will take into particular account the safety and welfare of
co-residents;
(c) the court must be provided with written advice that there is
a place available in the home detention program for the
offender from the commencement of the offender's term of
imprisonment; and the program must be sufficiently close
to the offender's home to ensure adequate support and
supervision. This assessment will be made on a case by
case basis depending on the particular needs of the offender
and the assessment of the supervising officer;
(d) the offender must provide written consent to the making of
the order, and must provide a written undertaking in
accordance with section 18ZZ;
(e) a home detention assessment report must have been
prepared by the Secretary to the Department of Justice.
Under section 8 of the Corrections Act, the Secretary may
delegate to any employee of the Department of Justice, or
any officer under Part 5 or Part 9 of that Act (which
includes community corrections officers) any function,
power, duty or responsibility under any Act. It is
anticipated that the Secretary will delegate this assessment
to a community corrections officer, who is the offender's
supervising officer for the home detention order.
Sub-sections (2) to (4) oblige the court to consider an
assessment report when deciding whether or not to make an
order. The court may only make the order if the person is
recommended as a suitable candidate. If they are not so
recommended, the home detention order cannot be made and the
offender must be imprisoned.
In proposed section 18ZX, sub-section (1) provides that if an
offender is convicted of more than one offence in the same
proceeding, the aggregate term of imprisonment must be
12 months or less if the offender is to be considered for a home
detention order.
Sub-section (2) allows for a subsequent home detention order to
be made if the offender is sentenced to a term of imprisonment
during the operation of the order. However the aggregate of both
sentences must be less than 12 months.
3
In proposed section 18ZY, sub-section (1) requires the court to
notify the offender and the Director of Public Prosecutions or the
informant or the police prosecutor, if the offender is to be
referred for assessment of his or her suitability for a home
detention order.
Sub-section (2) allows for the offender to decline to be
considered for a home detention order.
Sub-section (3) requires the court to order a home detention
assessment report in respect of the offender to be prepared, if it
gives a notice under sub-section (1).
Sub-section (4) empowers the court to direct the Secretary to the
Department of Justice to arrange for the examination of the
offender by a medical practitioner, psychiatrist or psychologist
and require the preparation of a written psychiatric, psychological
or medical report in conjunction with the assessment report.
Such a report may be obtained, for example, where the court is
concerned about the suitability of the offender to the order
because of concerns about his or her mental fitness; or where the
court is concerned about the safety and welfare of co-residents or
the community because of concerns about the offender's mental
state.
Sub-section (5) prohibits the court from ordering a home
detention assessment report or a medical or psychological or
psychiatric examination for the purposes of assessment for home
detention of the offender has indicated that he or she does not
wish to be considered for such an order.
Sub-section (6) provides for the court to stay the execution of the
sentence of imprisonment imposed in the proceedings when it
orders a home detention assessment report. It also empowers the
court to remand the offender in custody or grant bail, pending
consideration of the home detention assessment report.
The stay of execution of the sentence ends under sub-section (7)
when the court decides whether or not to make the home
detention order.
In proposed section 18ZZ sub-section (1) sets out the written
undertakings that the offender must give before a home detention
order may be made. These undertakings are--
(a) that the offender will comply with the obligations under the
Subdivision;
4
(b) that the offender will agree to monitoring or reasonable
testing required or directed to ensure compliance.
All offenders on the program will be required to be
subjected to the home detention monitoring procedures
established by the Department of Justice;
(c) that the offender will pay any incidental costs incurred by
the offender as a result of the home detention order and
determined by the Secretary to the Department of Justice.
The costs of the home detention device, most of the calls
and the programs will be met by the Department of Justice.
However, there will be some incidental costs that the
offender will be required to pay, such as tram fares, and
some telephone calls to the supervising officer, rental of the
telephone line (where the offender had already had access
to a telephone at the approved residence). Special
arrangements may be made by the Secretary to the
Department of Justice for individuals unable to afford these
costs. For example, the Department may agree to pay for
the installation and rental of a telephone line where no line
previously operated from the approved residence.
Proposed section 18ZZA states the obligations of an offender
while serving the home detention order.
Proposed section 18ZZB sets out the core conditions of a home
detention order. The core conditions refer throughout to the
Secretary to the Department of Justice. It is anticipated that the
Secretary will delegate his or her functions under this provision
to a community corrections officer, who is the offender's
supervising officer for the home detention order.
These conditions cannot be varied.
Paragraph (a) requires the offender to be of good behaviour and
not to offend during the period of the order.
Paragraph (b) requires the offender to advise the Secretary to the
Department of Justice if arrested or detained by police.
Paragraph (c) states that the offender must reside only at
premises approved by the Secretary. It is intended that where
co-residents withdraw their consent to the offender residing at the
approved residence, or the approved residence becomes unfit to
live in, the offender will be permitted to leave the residence (as
set out in paragraph (d)), and notify the Secretary to the
Department of Justice as soon as practicable of his or her
departure (paragraph (f)). It is intended that the supervising
5
officer and the offender will have developed a risk management
strategy so that where the offender is unable to remain at the
approved residence, an alternative residence will have been
identified and be swiftly made the "approved residence" for the
purpose of complying with the order.
Paragraph (e) states that during absences the offender must
adhere to the specified activity plan approved or arranged by the
Secretary. This specified activity plan will set out the hours of
curfew, and those activities the offender is expected to undertake
outside of curfew hours. Such activities may include
employment or education commitments or attendance upon one
of the program conditions identified by the supervising officer or
court as necessary to address offending behaviours.
Under the terms of paragraph (g), the offender must accept visits
from the Secretary at any time.
Paragraph (h) states that the offender must submit to searches of
places or things under the immediate control of the offender.
This requirement likely will impact on co-residents where there is
shared control of places or things. However, if the court has
made a home detention order the co-residents will have
acknowledged in writing that they are prepared to live in
conformity with the requirements of the home detention order
(pursuant to section 18ZU(2)(b)).
Paragraph (i) requires the offender to comply with the relevant
operational requirement of the electronic monitoring system
which will be used in the pilot. It is envisaged that the
monitoring system will oblige the offender to wear a transmitting
device on his or her wrist or ankle, and facilitate the installation
of a receiving unit at his or her place of residence. The offender
will be advised upon the operation of the system and will be
expected to comply with all instructions given by the Secretary to
the Department of Justice in relation to the operation of the
system. Paragraph (j) provides that the offender is not to tamper
with, damage or disable monitoring equipment.
Paragraph (k) requires an offender to comply with reasonable
directions of the Secretary in relation to association with
specified persons. These may include persons that the Secretary
to the Department of Justice considers to be likely to obstruct the
offender's rehabilitation.
6
Paragraphs (l) and (m) require the offender not to consume
alcohol, not to use prohibited drugs, not to obtain drugs
unlawfully and not to abuse drugs of any kind while subject to
the order. This condition will be enforced by way of
conventional testing procedures, as set out in paragraph (n).
Paragraphs (o), (p) and (q) relate to the intention that the home
detention order promote rehabilitation and reintegration.
The Secretary to the Department of Justice may give reasonable
directions to the offender in relation to his or her employment or
opportunities for employment and the offender must allow for the
Secretary to contact his or her employer. The offender must
inform his or her employer of the home detention order.
Paragraph (r) requires the offender at the discretion of the
Secretary to engage in counselling or other programs to address
offending behaviours and to promote rehabilitation.
Paragraph (s) allows for the Secretary to direct the offender to
undertake unpaid community work when not otherwise
employed.
Paragraph (t) prohibits the offender from possessing or having in
his or her control firearms, prohibited or controlled weapons or
dangerous articles as defined by the Control of Weapons Act
1990.
Paragraph (u) requires the offender to comply with any order
made under section 84 (restitution order) or 86(1) (compensation
order) in relation to the offence for which the home detention
order is made.
Paragraph (v) is a general requirement that the offender comply
with all reasonable directions of the Secretary to the Department
of Justice.
Proposed section 18ZZC empowers the court to impose any
special conditions that it considers appropriate. These conditions
could include a requirement that the offender attend a particular
program to address his or her offending behaviour such as drug
or alcohol abuse. Other requirements could include attendance
upon an employment readiness program or gambling counselling.
The court can vary or revoke these special conditions at any time
upon appropriate notification being given to the offender,
Secretary to the Department of Justice and Director of Public
Prosecutions.
7
Proposed section 18ZZD states that while the offender is subject
to the home detention order he or she is not precluded from
accessing pensions and other welfare benefits.
Proposed section 18ZZE empowers the co-residents to withdraw,
at any time, their consent to the offender using their residence as
the approved residence for the order. This notice must be served
in writing on the Secretary of the Department of Justice.
In practice, the supervising officer will have a supply of
notification forms that co-residents may use to provide their
written notice and give it to the supervising officer, who will
accept it on behalf of the Secretary. The Secretary will notify the
offender and the offender will be required to leave the residence
immediately.
In proposed section 18ZZF, sub-section (1) empowers the
Secretary to the Department of Justice to apply to the Adult
Parole Board for the revocation of the home detention order
should the offender lose his or her accommodation.
Sub-section (2) obliges the Secretary of the Department of Justice
to notify the offender should an application for revocation of the
home detention order be made.
Sub-section (3) provides that the notice is not required to be
given to the offender of the Adult Parole Board is satisfied that
the matter is urgent.
Sub-section (4) allows for an offender subject to a home
detention order to apply to the Adult Parole Board for revocation
of the order.
Sub-section (5) obliges the offender making an application for
revocation to notify the Secretary to the Department of Justice.
Sub-section (6) enables the Secretary to the Department of
Justice to make written submissions to the Adult Parole Board in
order to assist the Board in considering revocation of the home
detention order.
Sub-section (7) enables the offender to make written submissions
to the Adult Parole Board in relation to an application made by
the offender or of which the offender is given notice this section.
Sub-section (8) allows the Adult Parole Board to give the
offender an opportunity to be heard in person when it is
considering revocation of the order.
8
Sub-section (9) empowers the Adult Parole Board to revoke the
home detention order. This sub-section also requires the Board
to consider any submissions from the Secretary to the
Department of Justice and the offender before determining
whether or not to revoke the order.
Sub-section (10) makes provision for the Adult Parole Board to
issue a warrant for the arrest of the offender should the Board
decide to revoke the home detention order. The warrant will
direct that upon arrest, the offender is to be taken to prison.
Proposed section 18ZZG requires the Secretary to the
Department of Justice to act upon allegations that the offender
has breached a condition of the home detention order.
The Secretary must investigate this allegation and give the
offender an opportunity to explain.
Proposed section 18ZZH sets out the procedure where an
offender breaches a home detention order, but it is not a serious
breach. The Secretary to the Department of Justice may impose
either a formal warning, or a more stringent application of the
conditions of the order and must advise the offender of the
decision taken.
In proposed section 18ZZI, sub-section (1) requires the Secretary
to the Department of Justice to apply to the Adult Parole Board
for a revocation or variation of the home detention order where
there is a serious breach of a condition.
Sub-section (2) requires the Secretary to the Department of
Justice to notify the offender if an application to the Adult Parole
Board for revocation or variation of the home detention order is
made.
Sub-section (3) provides that notice is not required to be given to
the offender if the offender has breached certain core conditions
of the home detention order.
Sub-section (4) allows the Secretary to the Department of Justice
to make written submissions to the Adult Parole Board when an
application for revocation or variation of the home detention
order is made.
Sub-section (5) enables the offender to make written submissions
to the Adult Parole Board in relation to an application of which
the offender is given notice under sub-section (2).
9
Sub-section (6) defines what constitutes a serious breach of the
order. Serious breaches are those which--
(a) compromise the safety and security of the community, any
person residing with the offender or the offender's family;
or
(b) involve the commission of an offence; or
(c) involve non-compliance with an order made under
section 84 (restitution order) or 86(1) (compensation order);
or
(d) occur after repeated failure to comply with the conditions of
the order; or
(e) a breach of a core condition of a home detention order set
out in section 18ZZB(d) or section 18ZZB(e).
Sub-section (7) provides that the Secretary to the Department of
Justice is not required to treat a minor breach of a core condition
under section 18ZZB(e) as a serious breach
In proposed section 18ZZJ, sub-section (1) provides that the
Adult Parole Board may require the offender to appear in person
if the Board is considering revocation of the order because a
serious breach has been committed. The Board must advise the
offender in writing of the time date and venue of the proposed
hearing.
Sub-section (2) allows for the Adult Parole Board to proceed in
the absence of the offender should he or she fail to appear in
accordance with the notice issued under sub-section (1).
In proposed section 18ZZK, sub-section (1) provides that the
Board is to consider evidence submitted by the offender and by
the Secretary to the Department of Justice in considering a
serious breach of the conditions of a home detention order.
Sub-section (2) empowers the Adult Parole Board to revoke the
home detention order where it is satisfied that there has been a
serious breach and to issue a warrant authorising a member of the
police force to arrest the offender and take him or her to prison.
Sub-section (3) gives the Adult Parole Board additional powers
to deal with the serious breach of the home detention order
should it decide not to revoke the order. The Board can formally
warn the offender, or add to or vary special conditions in the
order. The added or varied conditions could require the offender
10
either to address behaviours of concern by attending counselling
or to expiate the breach by undertaking unpaid community work
for a determined period.
Sub-section (4) requires the Adult Parole Board to send written
notification to the offender of the revocation of the order or any
sanction imposed under that section.
Sub-section (5) provides that the Adult Parole Board may be
satisfied of a breach if there is non-compliance with an order
under section 84 (restitution order) or 86(1) (compensation order)
whether or not a step has been taken to enforce the order.
Sub-section (6) provides that a revocation or sanction under
section 18ZZK for non-compliance with an order under
section 84 or 86(1) does not affect the enforcement of that order.
Proposed section 18ZZL sets out the effect of a revocation of the
home detention order by the Adult Parole Board.
Sub-section (1) states that the offender must be taken to prison to
serve a period of imprisonment that is equal to the period from
the effective date of revocation in prison to the date of expiry of
the term of imprisonment imposed by the court.
Sub-section (2) states that the effective date of revocation of the
order is the date the Adult Parole Board makes that decision,
unless the Board directs otherwise under sub-section (3).
Sub-section (3) empowers the Board to order that the effective
date of revocation is the date that the breach occurred, or any
later date up to the date of the hearing.
Sub-section (4) states that if the home detention order is revoked
upon the application of the Secretary to the Department of Justice
or upon the application of the offender under section 18ZZF, the
offender must be taken to prison to serve a period of
imprisonment that is equal to the period from the effective date of
revocation in prison to the date of expiry of the term of
imprisonment imposed by the court.
Sub-section (5) requires the Governor of the prison to which the
offender is taken to notify the Secretary within 7 days of
receiving the person in prison.
11
Proposed section 18ZZM permits the Adult Parole Board to
rescind an earlier decision to revoke the home detention order in
the absence of an offender it had directed to appear before it or if
the offender was not notified of the application for revocation.
Sub-section (1) provides that the section applies if the Adult
Parole Board had ordered the offender to appear before it under
section 18ZZJ and the offender did not do so or notice was not
given to the offender of an application for revocation under
section 18ZZF or section 18ZZK and the Board exercised its
authority under section 18ZZF or 18ZZK to revoke the home
detention order.
Sub-section (2) provides that the Adult Parole Board must notify
the offender in writing that he or she has 14 days from service of
the notice to apply for a re-hearing in respect of the revocation.
Sub-section (3) empowers the Adult Parole Board to rescind its
earlier decision to revoke the home detention order, after
considering evidence submitted to it by the offender and any
other information and reports before it.
Sub-section (4) provides that if the Adult Parole Board rescinds
the revocation of the home detention order under sub-section (2),
the home detention order is to be taken not to have been revoked.
Sub-section (5) allows the Adult Parole Board to determine not to
make a document or part of a document considered under sub-
section (3) available to the offender.
Sub-section (6) provides that the section does not limit the
operation of section 18ZZN.
Proposed section 18ZZN provides for the Adult Parole Board to
rescind its decision to revoke the home detention order under
section 18ZZF should the offender subsequently secure a
residence approved by the Secretary to the Department of Justice.
Sub-section (1) enables the offender to apply to the Adult Parole
Board for the order of revocation to be rescinded. In the
application, the offender must demonstrate that an approved
residence has become available.
Sub-section (2) empowers the Adult Parole Board to rescind its
decision to revoke the home detention order only if it is satisfied
that a residence, that has been approved by the Secretary to the
Department of Justice, is available, and that the rescission is not
prohibited under sub-section (3) and that it is appropriate in all
12
the circumstances to do so. It is expected that in approving the
residence, the Secretary to the Department of Justice will apply
the same level of investigations as were applied when
considering the suitability of the residence when the assessment
of suitability for the home detention order was first conducted.
Sub-section (3) applies the provisions of section 18ZZU (dealing
with the consent of co-residents) to the decision to rescind the
revocation.
Sub-section (4) states that if the revocation of the home detention
order is rescinded, the home detention order is to be taken as not
to have been revoked.
Proposed section 18ZZO sets out the effect of a revocation of the
home detention order by a court where it deals with another
offence committed by the offender.
Sub-section (1) allows the court to revoke the home detention
order when it imposes a sentence on the offender for another
matter.
Sub-section (2) requires the court to revoke the home detention
order if it imposes a sentence of imprisonment to be served in
prison for another matter.
Sub-section (3) provides that if the court revokes the home
detention order under sub-section (2), the court must commit the
offender to prison. The length of time the offender must serve in
prison in relation to the home detention order is to be the length
of the unexpired portion of the sentence at the time of revocation
of the order. Considerations about the eligibility of parole upon
the expiration of the minimum term, if any, will be made in
relation to the time served on revocation, in the same way as if an
offender had served all of his or her sentence in prison.
Proposed section 18ZZP confirms that the home detention order
expires at the end of the minimum term of imprisonment imposed
by the court.
Proposed section 18ZZQ provides that notices that are required
to be served on the offender may be served either personally or
by post to the offender's approved residence. Where an offender
is in custody, the notice must be served on the Secretary to the
Department of Justice, who is required to notify the offender of
the notice.
13
Section 18ZZR requires the Secretary to the Department of
Justice to include in the Department's Annual Report certain
information relating to functioning of the home detention
program.
Clause 6 inserts a new Division 2A into Part 6 of the Sentencing Act
relating to home detention assessment reports as follows--
Proposed section 99F provides that if the court orders a home
detention assessment report, the Secretary must prepare the
report. It is anticipated that the Secretary will delegate this
assessment to an officer under Part 9 of the Corrections Act.
The provision sets out the purpose of the report and the
investigations that may be undertaken.
Proposed section 99G sets out the matters that must be included
in the home detention assessment report. It also provides the
Secretary with the discretion to take into account any other
relevant matters for preparing the assessment report.
Proposed section 99H provides for the distribution of the home
detention assessment report.
Sub-section (1) requires the report to be filed with the court by
the time directed by the court.
Sub-section (2) requires the Secretary to the Department of
Justice to serve a copy of the assessment report on the offender
and his or her legal representative and on the prosecution prior to
the court hearing.
Proposed section 99I provides a mechanism for disputing the
home detention assessment report.
Sub-section (1) enables the defence or prosecution to file with the
court a notice of intention to dispute the whole or any part of the
assessment report.
Sub-section (2) prevents the court from making the home
detention order until the party filing the notice under sub-section
(1) has had the opportunity lead evidence on the disputed matters
and to question in person the author of the report about details of
that report.
14
In proposed section 99J, sub-section (1) makes it an offence to
disclose the home detention assessment report, or the information
obtained for the purpose of preparing the home detention
assessment report to any person, except to comply with
section 99H. The penalty for non-compliance is 5 penalty units.
Sub-section (2) identifies the circumstances where sub-section
(1) does not apply: (a) disclosures made to the Secretary to the
Department of Justice or an employee of the Department are
permitted to assist in the carrying out of a duty under the Act;
and (b) disclosures with the leave of the court which requested
the report.
Sub-section (3) permits the court to review the material to
determine whether or not to grant leave under sub-section (2)
without providing it to the applicant for leave.
Sub-section (4) states that in considering an application for leave,
the court must take into account the likelihood, and the nature or
extent, of harm that would be caused to any person if the
information is disclosed.
Sub-section (5) permits the court to grant leave to produce the
whole or part of a document.
This provision operates in conjunction with section 91 of the
Corrections Act. That provision prohibits disclosure of
information gained because of an officer's position except to
certain groups including the court. Section 91 would operate in
relation to information obtained about the offender during the
conduct of the order. Section 99J relates to the home detention
assessment report and information obtained for the purpose of
preparing that report.
Clause 7 provides a regulation making power for any matter relating to
home detention.
Clause 8 inserts a new section 127A to provide that the Sentencing Act as
amended by the Bill will apply to all sentences imposed after
commencement of the amendments, irrespective of the date on
which the offence was committed. It is provided that a sentence
imposed by an appellate court is to be taken to have been
imposed at the time that the original sentence was imposed.
15
Clause 9 the amendments made to the Sentencing Act by the Bill are
intended to be operative for a three year pilot period.
Accordingly, this clause provides for the repeal of the
amendments. The repeal will occur on the third anniversary of
the commencement of the amendments (see clause 2).
Clause 10 In spite of the repeal of the provisions at the end of the three year
pilot period, proposed clause 127B inserted by clause 10 provides
for the provisions to continue to apply to those home detention
orders that are in force before the repeal.
PART 3--AMENDMENTS TO THE CORRECTIONS ACT
Clause 11 inserts definitions into the Corrections Act 1986.
Clause 12 amends section 6C of the Corrections Act 1986 to provide that a
prisoner who is serving a sentence of imprisonment by way of
home detention is not in the custody of the Secretary to the
Department of Justice.
Clause 13 amends section 30A of the Corrections Act 1986 to provide for
a primary victim to be notified of a prisoner's release on home
detention.
Clause 14 inserts a new Division 4 into Part 8 of the Corrections Act 1986
relating to home detention orders. This Division provides for
persons serving terms of imprisonment in prison to be released
on home detention ("back end home detention").
In proposed section 59, sub-section (1) empowers the Adult
Parole Board to make a home detention order. In making such an
order, the Board must receive an application from the prisoner
who must satisfy the following requirements by the date the order
takes effect: the prisoner must have served at least 2/3 of his or
her sentence; and the prisoner must be eligible for parole or
release within six months. At the time of the application, the
prisoner must be classified as a minimum security prisoner.
Sub-section (2) prevents the Adult Parole Board from making the
home detention order if the prisoner is serving an indefinite
sentence, or is eligible for parole but has not been granted parole,
or is on parole.
Sub-section (3) provides that while the prisoner is subject to the
home detention order he or she is not precluded from accessing
pensions or other welfare benefits.
16
Proposed section 60 prevents the Adult Parole Board from
making the home detention order if the co-residents object.
This section mirrors proposed section 18ZU of the Sentencing
Act 1991.
Sub-section (1) provides that an order is not to be made unless
the Board is satisfied that in relation to co-residents of or over the
age of 18 years--
(a) the Secretary to the Department of Justice or a person
authorised by the Secretary has consulted with the co-
residents independently of the offender; and
(b) the co-residents have acknowledged in writing that they
understand the requirements of the home detention order
and their willingness to live in conformity with them; and
(c) having been duly consulted, where co-residents are
content for the offender to reside with them under a home
detention order, the co-residents have consented in
writing to this.
Sub-section (2) requires the Board to ascertain the wishes and
feelings of any person under the age of 18 years who will reside
with the offender under the order.
Sub-sections (3) and (4) allow the Board to dispense with the
consent of an adult co-resident if the Board is satisfied that the
person lacks capacity to consent. The Board must be satisfied
that--
(a) the wishes and feelings of the person have been
ascertained; and
(b) these have been considered in light of the understanding
of the person.
Proposed section 60A specifies the offences that preclude the
making of a home detention order.
This section mirrors proposed section 18ZV of the Sentencing
Act 1991.
Proposed section 60B mirrors proposed section 18ZW of the
Sentencing Act 1991.
Sub-section (1) sets out the preconditions to the making of the
order, being--
(a) the Adult Parole Board must be satisfied the person is a
suitable candidate for home detention;
17
(b) the Adult Parole Board must be satisfied that home
detention is an appropriate means by which the sentence is
to be served. In determining whether it is satisfied of the
matters referred to in paragraphs (a) and (b), it is
anticipated that the Adult Parole Board will take into
particular account the safety and welfare of co-residents;
(c) the Adult Parole Board must be provided with written
advice from the Secretary to the Department of Justice that
there is a place available in the home detention program for
the prisoner from the commencement of the prisoner's
home detention order; and the program must be sufficiently
close to the prisoner's home to ensure adequate support and
supervision. This assessment will be made on a case by
case basis depending on the particular needs of the prisoner
and the assessment of the supervising officer;
(d) the prisoner must provide written consent to the making of
the order, and must provide written undertakings in
accordance with section 60H;
(e) a home detention assessment report must have been
prepared by the Secretary to the Department of Justice.
Under section 8 of the Corrections Act, the Secretary may
delegate to any employee of the Department of Justice, or
any officer under Part 5 or Part 9 of that Act (which
includes community corrections officers) any function,
power, duty or responsibility under any Act. It is
anticipated that the Secretary will delegate this assessment
to a community corrections officer, who is the prisoner's
supervising officer for the home detention order.
Sub-sections (2) to (4) require the Adult Parole Board to consider
a home detention assessment report when deciding whether or
not to make an order. The Adult Parole Board may only make
the order if the prisoner is recommended as a suitable candidate.
The Adult Parole Board does not have to make an order for home
detention if the assessment report recommends the prisoner for
such an order.
Proposed section 60C provides for the copies of the home
detention order to be distributed to the Adult Parole Board, to the
Secretary of the Department of Justice, to the prisoner and to the
Governor of the relevant prison from where the prisoner is to be
released.
18
Proposed section 60D requires the Adult Parole Board to request
the Secretary to the Department of Justice to prepare a home
detention assessment report if it is considering making a home
detention order. The section defines the purpose of the report
and the investigations that may be conducted.
Proposed section 60E sets out the matters that must be included
in the home detention assessment report. It also provides the
Secretary to the Department of Justice with the discretion to take
into account any other relevant matters for preparing the
assessment report. This provision mirrors proposed section 99G
of the Sentencing Act 1991.
Proposed section 60F prohibits the disclosure of certain
information except with the leave of the Adult Parole Board.
This provision mirrors proposed section 99J of the Sentencing
Act 1991.
Sub-section (1) makes it an offence to disclose the home
detention assessment report, or the information obtained for the
purpose of preparing the home detention assessment report to any
person, except to comply with section 60C. The penalty for
non-compliance is 5 penalty units.
Sub-section (2) identifies the circumstances where sub-section
(1) does not apply: (a) disclosures made to the Secretary to the
Department of Justice or an employee of the Department are
permitted to assist in the carrying out of a duty under the Act; and
(b) disclosures with the leave of the Adult Parole Board.
Sub-section (3) permits the Board to review the material to
determine whether or not to grant leave under sub-section (2)
without providing it to the applicant for leave.
Sub-section (4) states that in considering an application for leave,
the Adult Parole Board must take into account the likelihood, and
the nature or extent, of harm that would be caused to any person
if the information is disclosed.
Sub-section (5) permits the Adult Parole Board to grant leave to
produce the whole or part of a document.
This provision operates in conjunction with section 91 of the
Corrections Act 1986. That provision prohibits disclosure of
information gained because of an officer's position except to
certain groups including the Adult Parole Board. Section 91
would operate in relation to information obtained about the
19
prisoner during the conduct of the order. Section 60F relates to
the home detention assessment report and information obtained
for the purpose of preparing that report.
Proposed section 60G empowers the Adult Parole Board to
arrange for a medical examination of the prisoner in deciding
whether to make, vary, or revoke the home detention order.
Such a report may be obtained, for example, where the Adult
Parole Board is concerned about the suitability of the prisoner to
the order because there are concerns about his or her mental
fitness; or where the Adult Parole Board is concerned about the
safety and welfare of co-residents or the community because of
concerns about the prisoner's mental state.
This section mirrors the provisions of proposed section 18ZY of
the Sentencing Act 1991.
Proposed section 60H requires the prisoner to make certain
undertakings in order to be placed on a home detention order.
This provision mirrors proposed section 18ZZ of the Sentencing
Act 1991.
Sub-section (1) sets out the written undertakings that the prisoner
must give before a home detention order may be made.
These undertakings are--
(a) that the prisoner will comply with the obligations under the
Subdivision;
(b) that the prisoner will agree to monitoring or reasonable
testing required or directed to ensure compliance.
All prisoners on the program will be required to be
subjected to the home detention monitoring procedures
established by the Department of Justice;
(c) that the prisoner will pay any incidental costs incurred by
the offender as a result of the home detention order and
determined by the Secretary to the Department of Justice.
The costs of the home detention device, most of the calls
and the programs will be met by the Department of Justice.
However, there will be some incidental costs that the
prisoner will be required to pay, such as tram fares, and
some telephone calls to the supervising officer, rental of
the telephone line (where the offender had already had
access to a telephone at the approved residence).
Special arrangements may be made by the Secretary to the
Department of Justice for individuals unable to afford these
costs. For example, the Department may agree to pay for
20
the installation and rental of a telephone line where no line
previously operated from the approved residence.
Sub-section (2) requires that these undertakings to be in written
form and set out the obligations of the offender.
Proposed section 60I states the obligations of the offender while
serving the home detention order. This section mirrors the
provisions of proposed section 18ZZA of the Sentencing Act
1991.
Proposed section 60J sets out the core conditions of a home
detention order and mirrors the provisions of proposed
section 18ZZB of the Sentencing Act 1991.
The core conditions refer throughout to the Secretary to the
Department of Justice. It is anticipated that the Secretary will
delegate his or her functions under this provision to a community
corrections officer, who is the offender's supervising officer for
the home detention order.
These conditions cannot be varied.
Paragraph (a) requires the offender to be of good behaviour and
not offend during the period of the home detention order.
Paragraph (b) requires the offender to advise the Secretary to
Department of Justice if arrested or detained by police.
Paragraph (c) states that the offender must reside only at
premises approved by the Secretary. It is intended that where
co-residents withdraw their consent to the offender residing at the
approved residence, or the approved residence becomes unfit to
live in, the offender will be permitted to leave the residence (as
set out in paragraph (d)), and notify the Secretary to the
Department of Justice as soon as practicable of his or her
departure (paragraph (f)). It is intended that the supervising
officer and the offender will have developed a risk management
strategy so that where the offender is unable to remain at the
approved residence, an alternative residence will have been
identified and be swiftly made the "approved residence" for the
purpose of complying with the order.
Paragraph (e) states that during absences the offender must
adhere to a specified activity plan approved or arranged by the
Secretary. This specified activity plan will set out the hours of
curfew, and those activities the offender is expected to undertake
outside of curfew hours. Such activities may include
21
employment or education commitments or attendance upon one
of the program conditions identified by the supervising officer or
court as necessary to address offending behaviours.
Under the terms of paragraph (g), the offender must accept visits
from the Secretary to the Department of Justice at any time.
Paragraph (h) states that the offender must submit to searches of
places or things under the immediate control of the offender.
This requirement likely will impact on co-residents where there is
shared control of places or things. However, if the Adult Parole
Board has made a home detention order co-residents will have
acknowledged in writing that they are prepared to live in
conformity with the requirements of the home detention order
(pursuant to section 60(1)(b)). This core condition is one of
those requirements to which the co-residents have agreed.
Paragraph (i) requires the offender to comply with the relevant
operational requirement of the electronic monitoring system
which will be used in the pilot. It is envisaged that the
monitoring system will oblige the offender to wear a transmitting
device on his or her wrist or ankle, and facilitate the installation
of a receiving unit at his or her place of residence. The offender
will be advised upon the operation of the system and will be
expected to comply with all instructions given by the Secretary to
the Department of Justice in relation to the operation of the
system. Paragraph (j) provides that the offender is not to tamper
with, damage or disable monitoring equipment.
Paragraph (k) requires the offender to comply with a reasonable
direction of the Secretary in relation to association with specified
persons. These may include persons that the Secretary to the
Department of Justice considers to be likely to obstruct the
offender's rehabilitation.
Paragraphs (l) and (m) require the offender not to consume
alcohol or use prohibited drugs and not to obtain drugs
unlawfully and not to abuse drugs of any kind while subject to
the order. This condition will be enforced by way of
conventional testing procedures, as set out in paragraph (n).
Paragraphs (o), (p) and (q) relate to the intention that the home
detention order promote rehabilitation and reintegration.
The Secretary to the Department of Justice may give reasonable
directions to the offender in relation to his or her employment or
opportunities for employment and the offender must allow for the
22
Secretary to contact his or her employer. The offender must
inform the employer of the home detention order.
Paragraph (r) requires the offender, at the discretion of the
Secretary, to engage in counselling or other programs to address
offending behaviours and to promote rehabilitation.
Paragraph (s) allows for the Secretary to direct the offender to
undertake unpaid community work when not otherwise
employed.
Paragraph (t) prohibits the offender from possessing or having in
his or her control firearms, prohibited or controlled weapons or
dangerous articles as defined by the Control of Weapons Act
1990.
Paragraph (u) requires the offender to comply with any order
made under section 84 (restitution order) or 86(1) (compensation
order) of the Sentencing Act 1991 in relation to the offence for
which the home detention order is made.
Paragraph (v) is a general requirement that the offender comply
with all reasonable directions of the Secretary to the Department
of Justice.
Proposed section 60K empowers the Adult Parole Board to
impose any special conditions that it considers appropriate.
This provision mirrors proposed section 18ZZC of the
Sentencing Act 1991.
Special conditions are given to the offender in writing and could
include a requirement that the offender attend a particular
program to address his or her offending behaviour such as drug
or alcohol abuse. Other requirements could include attendance
upon an employment readiness program or gambling counselling.
The Adult Parole Board can vary or revoke these special
conditions at any time upon appropriate notification being given
to the offender, Secretary to the Department of Justice and
Director of Public Prosecutions.
Proposed section 60L provides for the withdrawal of consent by
the co-residents. This provision mirrors proposed section 18ZZE
of the Sentencing Act 1991. This provision empowers the
co-residents to withdraw, at any time, their consent to the
offender using their residence as the approved residence for the
order. This notice must be served on the Secretary of the
23
Department of Justice. In practice, the supervising officer will
have a supply of notification forms that co-residents may use to
provide their written notice and give it to the supervising officer,
who will accept it on behalf of the Secretary. The Secretary will
notify the offender and the offender will be required to leave the
residence immediately.
Proposed section 60M sets out the circumstances, procedures and
requirement for the revocation of the home detention order upon
the application of the Secretary to the Department of Justice or
the offender. This provision mirrors proposed section 18ZZF of
the Sentencing Act 1991.
Sub-section (1) empowers the Secretary to the Department of
Justice to apply to the Adult Parole Board for the revocation of
the home detention order should the offender lose his or her
accommodation.
Sub-section (2) requires the Secretary of the Department of
Justice to notify the offender should an application for revocation
of the home detention order be made.
Sub-section (3) provides that notice is not required to be given to
the offender if the Adult Parole Board is satisfied that the matter
is urgent.
Sub-section (4) allows an offender subject to a home detention
order to apply to the Adult Parole Board for revocation of the
order.
Sub-section (5) requires the offender making an application for
revocation to notify the Secretary to the Department of Justice.
Sub-section (6) enables the Secretary to the Department of
Justice to make written submissions to the Adult Parole Board in
order to assist the Board in considering revocation of the home
detention order.
Sub-section (7) enables the offender to make written submissions
to the Adult Parole Board in relation to an application made by
the offender or of which the offender is given notice under this
section.
Sub-section (8) allows the Adult Parole Board to give the
offender an opportunity to be heard in person when it is
considering revocation of the order.
24
Sub-section (9) empowers the Adult Parole Board to revoke the
home detention order. This sub-section also requires the Board
to consider any submissions from the Secretary to the
Department of Justice and the offender before determining
whether or not to revoke the order.
Sub-section (10) makes provision for the Adult Parole Board to
issue a warrant for the arrest of the offender should the Board
decide to revoke the home detention order. The warrant will
direct that upon arrest, the offender is to be taken to prison.
Proposed section 60N requires the Secretary to the Department of
Justice to act upon allegations that the offender has breached a
condition of the home detention order. This provision mirrors
proposed section 18ZZG of the Sentencing Act 1991.
Under the terms of this provision, the Secretary to the
Department of Justice must investigate the allegation and give the
offender an opportunity to explain.
Proposed section 60O sets out the procedure where an offender
breaches a home detention order, but it is not a serious breach.
This provision mirrors section 18ZZH of the Sentencing Act
1991.
This section empowers the Secretary to the Department of Justice
to impose either a formal warning, or a more stringent application
of the conditions of the order. The Secretary to the Department
of Justice must advise the offender of the decision taken.
Proposed section 60P requires the Secretary to the Department
of Justice to apply to the Adult Parole Board for revocation
or variation of the home detention order where there is a
serious breach. This section also defines "serious breach".
This provision mirrors proposed section 18ZZI of the Sentencing
Act 1991.
Sub-section (1) requires the Secretary to the Department of
Justice to apply to the Adult Parole Board for a revocation or
variation of the home detention order where there is a serious
breach of a condition.
Sub-section (2) requires the Secretary to the Department of
Justice to notify the offender if an application to the Adult Parole
Board for revocation or variation of the home detention order is
made.
25
Sub-section (3) provides that notice is not required to be given to
the offender if the offender has breached certain core conditions
of the home detention order.
Sub-section (4) allows the Secretary to the Department of Justice
to make written submissions to the Adult Parole Board when an
application for revocation or variation of the home detention
order is made.
Sub-section (5) enables the offender to make written submissions
to the Adult Parole Board in relation to an application of which
the offender is given notice under sub-section (2).
Sub-section (6) defines what constitutes a serious breach of the
order. Serious breaches are those which--
(a) compromise the safety and security of the community, any
persons residing with the offender or the offender's family;
or
(b) involve the commission of an offence; or
(c) involve non-compliance with an order made under
section 84 (restitution order) or 86(1) (compensation order)
of the Sentencing Act 1991; or
(d) occur after repeated failure to comply with the conditions of
the order; or
(e) involve a breach of a core condition of a home detention
order set out in section 60J(d) or section 60J(e).
Sub-section (7) provides that the Secretary to the Department of
Justice is not required to treat a minor breach of a core condition
under section 60J(e) as a serious breach.
Proposed section 60Q empowers the Adult Parole Board to
require the offender to appear before it if it is considering
revocation of the home detention order because it is alleged a
serious breach has been committed. This provision mirrors
proposed section 18ZZJ of the Sentencing Act 1991.
Sub-section (1) provides that the Adult Parole Board may require
the offender to appear in person if the Board is considering
revocation of the order because the Secretary to the Department
of Justice has made an application under section. The Board
must advise the offender in writing of the time date and venue of
the proposed hearing.
26
Sub-section (2) allows for the Adult Parole Board to proceed in
the absence of the offender should he or she fail to appear in
accordance with the notice issued under sub-section (1).
Proposed section 60R identifies the powers of the Adult Parole
Board in deciding upon a breach allegation brought before it
under proposed section 60P or section 60Q. This provision
mirrors proposed section 18ZZK of the Sentencing Act 1991.
Sub-section (1) provides that the Board is to consider evidence
submitted by the offender and by the Secretary to the Department
of Justice in considering a serious breach of the conditions of a
home detention order.
Sub-section (2) empowers the Adult Parole Board to revoke the
home detention order where it is satisfied that there has been a
serious breach and to issue a warrant authorising a member of the
police force to arrest the offender and take him or her to prison.
Sub-section (3) gives the Adult Parole Board additional powers
to deal with the serious breach of the home detention order
should it decide not to revoke the order. The Board can formally
warn the offender, or add to or vary special conditions in the
order. The conditions could require the offender either to address
behaviours of concern by attending counselling or to expiate the
breach by undertaking unpaid community work for a determined
period.
Sub-section (4) requires the Adult Parole Board to send written
notification to the offender of the revocation of the order or any
sanction imposed under this section.
Sub-section (5) provides that the Adult Parole Board may be
satisfied of a breach if there is non-compliance with an order
under section 84 (restitution order) or 86(1) (compensation order)
of the Sentencing Act 1991 whether or not a step has been taken
to enforce the order.
Sub-section (6) provides that a revocation or sanction under
section 60R for non-compliance with an order under section 84
or 86(1) of the Sentencing Act 1991 does not affect the
enforcement of that order.
27
Proposed section 60S sets out the effect of a revocation of the
home detention order by the Adult Parole Board. This provision
mirrors section 18ZZL of the Sentencing Act 1991.
Sub-section (1) states that the offender must be returned to prison
to serve a period of imprisonment that is equal to the period from
the effective date of revocation in prison to the date of expiry of
the sentence of imprisonment imposed by the court.
Sub-section (2) states that the effective date of revocation of the
order is the date the Adult Parole Board makes that decision,
unless the Board expressly directs otherwise under
sub-section (3).
Sub-section (3) empowers the Board to order that the effective
date of revocation is the date that the breach occurred, or any
later date up to the date of the hearing.
Sub-section (4) states that if the home detention order is revoked
upon the application of the Secretary to the Department of Justice
or upon the application of the offender under section 60M, the
offender must be taken to prison to serve a period of
imprisonment that is equal to the period from the effective date of
revocation in prison to the date of expiry of the sentence of
imprisonment imposed by the court.
Sub-section (5) requires the Governor of the prison to which the
offender is taken to notify the Secretary within 7 days of
receiving the person in prison.
Proposed section 60T the Adult Parole Board to rescind an earlier
decision to revoke the home detention order in the absence of an
offender it had directed to appear before it or if the offender was
not notified of the application for revocation. This provision
mirrors proposed section 18ZZM of the Sentencing Act 1991.
Sub-section (1) provides that the section applies if the Adult
Parole Board had ordered the offender to appear before it under
section 60Q and the offender did not do so or notice was not
given to the offender of an application for revocation under
section 60M or 60P and the Board exercised its authority under
section 60M or 60R to revoke the home detention order.
Sub-section (2) provides that the Adult Parole Board must notify
the offender in writing that he or she has 14 days from the service
of the notice to apply for a re-hearing in respect of the revocation.
28
Sub-section (3) empowers the Adult Parole Board to rescind its
earlier decision to revoke the home detention order, after
considering evidence submitted to it by the offender and any
other information and reports before it.
Sub-section (4) provides that if the revocation of the home
detention order is rescinded under sub-section (2), the home
detention order is to be taken not to have been revoked.
Sub-section (5) allows the Adult Parole Board to determine not to
make a document or part of a document considered under sub-
section (3) available to the offender.
Sub-section (6) provides that the section does not limit the
operation of section 60U.
Proposed section 60U provides for the Adult Parole Board to
rescind its decision to revoke the home detention order under
section 60M should the offender subsequently secure a residence
approved by the Secretary to the Department of Justice.
This provision mirrors section 18ZZN of the Sentencing Act
1991.
Sub-section (1) enables the offender to apply to the Adult Parole
Board for the order of revocation to be rescinded. In the
application, the offender must demonstrate that an approved
residence has become available.
Sub-section (2) empowers the Adult Parole Board to rescind its
decision to revoke the home detention order only if it is satisfied
that a residence, that has been approved by the Secretary to the
Department of Justice, is available and that the rescission is not
prohibited under sub-section (3) and that it is appropriate in all
the circumstances to do so. In approving the residence, it is
anticipated that the Secretary to the Department of Justice will
apply the same standard of investigation that was applied when
considering the suitability of the residence when the assessment
of suitability for the home detention order was first conducted.
Sub-section (3) applies the provisions of section 60 (dealing with
the consent of co-residents) to the decision to rescind the
revocation of the home detention order.
Sub-section (4) states that if the revocation of the home detention
order is rescinded, the home detention order is to be taken not to
have been revoked.
29
Proposed section 60V sets out the effect of a revocation of the
home detention order by a court where it deals with another
offence committed by the offender. This provision mirrors
section 18ZZO of the Sentencing Act 1991.
Sub-section (1) allows the court to revoke the home detention
order when it imposes a sentence on the offender for another
matter.
Sub-section (2) requires the court to revoke the home detention
order if it imposes a sentence of imprisonment to be served in
prison for another matter.
Sub-section (3) provides that if the court revokes the home
detention order under sub-section (2), the court must commit the
offender to prison. The length of time the offender must serve in
prison in relation to the home detention order is to be the length
of the unexpired portion of the sentence at the time of revocation
of the order. Considerations about the eligibility for parole upon
expiration of the minimum term, if any, will be made in relation
to the time served on revocation, in the same way as if the
offender had served all of his or her sentence of imprisonment in
prison.
Proposed section 60W states that the home detention order
expires at the end of the minimum term of imprisonment that is
imposed by the court. This provision mirrors proposed
section 18ZZP of the Sentencing Act 1991.
Proposed section 60X provides that notices that are required to be
served on the offender may be served either personally or by post
to the offender's approved residence. Where an offender is in
custody, the notice must be served on the Secretary, who is
required to notify the offender of the notice. This provision
mirrors proposed section 18ZZQ of the Sentencing Act 1991.
Clause 15 inserts into section 69 of the Corrections Act 1986 additional
functions of the Adult Parole Board.
Clause 16 amends section 70 of the Corrections Act 1986 to require
employees of the Department of Justice involved in the
administration of that Act to assist the Adult Parole Board.
Clause 17 specifies matters that must be included in the Adult Parole
Board's Annual Report. The matters mirror the matters included
in proposed section 18ZZR of the Sentencing Act 1991.
30
Clause 18 inserts reference to home detention orders into section 73 of the
Corrections Act 1986.
Clause 19 provides a regulation making power for any matter relating to
home detention.
Clause 20 the amendments made to the Corrections Act by the Bill are
intended to be operative for a three year pilot period.
Accordingly, this clause provides for the repeal of the
amendments. The repeal will occur on the third anniversary of
the commencement of the amendments (see clause 2).
Clause 21 In spite of the repeal of the provisions at the end of the three year
pilot period, proposed section 116 inserted by clause 21 provides
for the provisions to continue to apply to those home detention
orders that are in force before the repeal.
31