2011

LEGISLATIVE ASSEMBLY OF THE NORTHERN TERRITORY

MINISTER FOR CORRECTIONAL SERVICES

SERIAL No. 167

EXPLANATORY STATEMENT

Justice (Corrections) and Other Legislation Amendment Bill 2011

GENERAL OUTLINE

This Bill amends the Bail Act, Parole of Prisoners Act, Prisons (Correctional Services) Act, Sentencing Act, and the Motor Vehicles Act, and makes a number of minor amendments to the Workers Rehabilitation and Compensation Act and the Youth Justice Act.

The main purpose of the Bill is to introduce two new sentencing options in the Sentencing Act, called Community Based Orders and Community Custody Orders. It also provides for electronic monitoring to be part of such orders and of a bail conduct agreement under the Bail Act or as a parole option under the Parole of Prisoners Act. 

The Bill also makes a number of consequential amendments to the Motor Vehicles Act to provide that, where an offender who is sentenced to a Community Based Order or a Community Custody Order for an offence against the Traffic Act, which includes a requirement to complete a prescribed program targeting rehabilitating drug or drink driving or road safety, the offender may apply to the court for a special licence permitting them to drive, while on the order, for the purposes of practical training. 

In addition, once an offender has completed a Community Based Order or Community Custody Order, and completes certain requirements, the offender may apply to the court to have their licence disqualifications removed in the court’s discretion, enabling them to apply to the Registrar of Motor Vehicles to obtain a licence or a learner licence.

NOTES ON CLAUSES

Part 1 Preliminary matters
Clause 1.	Short title
This is a formal clause which provides for the citation of the Bill.  The Bill when passed may be cited as the Justice (Corrections) and Other Legislation Amendment Act 2011.

Clause 2.	Commencement
This clause outlines when the various parts of the Act will commence operation. Certain provisions will commence upon the Administrator’s assent. Other provisions will commence upon the date fixed by the Administrator by Gazette notice.

Part 2 Amendment of Bail Act
Clause 3.	Act amended
This Part of the Bill will amend the Bail Act.

Clause 4. 	Section 3 amended
This clause makes a minor amendment to the definition of ‘conduct agreement’ by referring to section 27(2)(a) where this definition is found. 

This clause also inserts a definition of ‘approved monitoring device’ by reference to section 5 of the Prisons (Correctional Services) Act (see clauses 18 and 21 of the Bill), ‘approved voice recognition system’ by reference to section 5 of the Prisons (Correctional Services) Act,  ‘conduct agreement’ by reference to section 27(2)(a) of the Prisons (Correctional Services) Act,  and ‘surveillance officer’ by reference to the definition of it in section 5 of the Prisons (Correctional Services) Act.

Clause 5.	Section 27 amended
This is a minor amendment that does not change the meaning of section 27(2)(a). Section 27(2)(a) refers to ‘specified requirements’ as to the accused person’s conduct while on bail. This clause clarifies that ‘specified requirements’ apply where a person is on a ‘conduct agreement’.  The requirements of a conduct agreement are found in section 27A.

Clause 6.	Section 27A amended
This clause inserts new subsections (1)(ia) and (1)(ib) into section 27A to enable a court granting bail to an accused person to order that the accused person be subject to electronic monitoring conditions. 

New subsection 27A(1)(ia) provides that a bail conduct agreement may be subject to a condition that the accused person must wear or have attached an approved monitoring device whilst on bail. This condition will ordinarily be ordered in addition to the condition that the accused person reside at a specified place under current subsection 27A(1)(f). ‘Approved monitoring device’ is one approved under new section 94BA of the Prisons (Correctional Services) Act.  New subsection 27A(1)(ia) will also permit the installation and removal of anything that is necessary to enable the monitoring device worn by the accused person to operate. As a result of this amendment the court will have the option of ordering that a person on bail must reside at a specified place under subsection 27A(1)(f) and wear an electronic monitoring device under new subsection (1)(ia), commonly known as ‘home detention bail’.

New subsection 27A(1)(ib) provides that the court may order that the accused person must give a voice sample for use with an approved voice recognition system.  In addition the accused person must comply with the reasonable directions of a surveillance officer in the use of the system for the effective monitoring of the accused person’s activities while on bail. The effect of this subsection is that the accused person on bail may be monitored, or may be required to fulfill their reporting requirements by voice recognition, via a telephone, from time to time. This condition may be ordered in addition to the requirement that the accused person reside at a specified place under subsection 27A(1)(f), but it need not. 

These two new subsections also provide that electronic monitoring and voice recognition conditions cannot be imposed by the Youth Justice Court, meaning that youths cannot be subject to these conditions while on bail, except where a youth is tried as an adult in the Supreme Court and the Supreme Court orders it.

Clause 7.	Section 27B inserted
This clause inserts new section 27B into the Bail Act. New section 27B will enable the monitoring powers of surveillance officers under Part 27, Division 1 of the Prisons (Correctional Services) Act to apply to the monitoring of an accused person on bail who is subject to the conditions in section 27A(1)(ia) or (ib) (inserted by clause 6). This means that an accused person who is released on bail on the condition they are subject to electronic monitoring or voice recognition conditions will be monitored by surveillance officers as defined in the Prisons (Correctional Services) Act. Surveillance officers will have the powers to monitor compliance outlined in clause 21 of the Bill.

Clause 8.	Section 28 amended
This clause inserts subsection (3) into section 28 of the Bail Act. New subsection 28(3) will provide that a court may only impose the conditions in new section 27A(1)(ia) or (ib), namely that an accused person wear an approved monitoring device or be subject to voice recognition monitoring, if the court has considered a report from the Director of Correctional Services as to the suitability of the accused for the condition.

Clause 9 	Section 53 Amended
This clause repeals section 53(3) which formerly provided that the maximum penalty that could be imposed for a breach of a regulation made under the Bail Act was $500. The penalty for a breach of a regulation will now rely on the default penalty in section 38F of the Interpretation Act, namely 100 penalty units (a penalty unit at the time of introduction of the Bill is $133).  

Clause 10	Act further amended
This clause gives effect to the amendments in Schedule 1 to the Bill. The Schedule makes minor amendments to the Bail Act of a statutory law revision nature.

Part 3 Amendment of Parole of Prisoners Act
Clause 11 	Act amended
This Part of the Bill amends the Parole of Prisoners Act.

Clause 12 	Section 3 amended
This clause inserts a new definition of ‘approved monitoring device’ and ‘approved voice recognition system into section 3(1) of the Parole of Prisoners Act by reference to section 5 of the Prisons (Correctional Services) Act (see clauses 18 and 21 of the Bill).

Clause 13		Section 4 inserted
This clause inserts new section 4 into the Parole of Prisoners Act. New section 4 provides that Part 27, Division 1 of the Prisons (Correctional Services) Act applies so that parole officers have the same powers as surveillance officers under the Prisons (Correctional Services) Act to monitor a person subject to a parole order (a ‘parolee’) which is subject to the conditions in new sections 5(5C)(a) or (b).  These conditions are introduced by clause 14 of the Bill, and are the conditions that the parolee wear an electronic monitoring device or be subject to voice recognition.

The effect of this amendment is that the parole officers will have powers to monitor compliance with the conditions in new section 5(5A)(a) or (b) (see clause 14), and the powers will be the same as those for surveillance officers as provided by clause 21 of the Bill.

Clause 14	Section 5 amended
This clause inserts new subsections 5(5A), 5(5B) and 5(5C) into the Parole of Prisoners Act. 

New subsection 5(5A) provides that a parole order may be subject to either or both conditions in that subsection, namely that the parolee reside at a specified place or be subject to monitoring conditions in subsection (5C). 

New subsection 5(5B) clarifies that this section does not apply to a person if they are not an adult, unless the person is a youth who has been dealt with as an adult in the Supreme Court and found guilty of the offence.  

New subsection 5(5C) details what the monitoring conditions may be, namely:

(a) that the Parole Board may order that the parolee be subject to electronic monitoring where the parolee must wear or have attached an approved monitoring device while on parole or a lesser period fixed by the Parole Board. The subsection will also permit the installation and removal of anything that is necessary to enable the monitoring device worn by the accused person to operate. As a result of this amendment the Parole Board will have the option of ordering that a person on parole must reside at a specified place and wear an electronic monitoring device, commonly known as ‘home detention parole’;

(b) that the Parole Board may order that the parolee must give a voice sample for use with a voice recognition system.  In addition, the parolee must comply with the reasonable directions of a parole officer in the use of the system while on parole. The effect of this subsection is that the parolee may be monitored, or may be required to fulfill their reporting requirements by voice recognition via a telephone, from time to time. 

Clause 15	Act further amended
This clause provides that the amendments in Schedule 2 to the 
Parole of Prisoners Act come into effect. The Schedule makes minor amendments to the 
Parole of Prisoners Act of a statutory law revision nature.

Part 4 Amendment of Prisons (Correctional Services) Act
Clause 16 	Act amended
This Part of the Bill amends the Prisons (Correctional Services) Act.

Clause 17 	Section 4 repealed
This clause repeals current section 4 of the Prisons (Correctional Services) Act because it is no longer necessary given it is a transitional provision for the Act which came into effect in 1981.

Clause 18	 Section 5 amended
This clause repeals the current definition of ‘monitoring device’ in section 5 of the Prisons (Correctional Services) Act, and inserts new definitions for ‘approved monitoring device’, which means a device approved by the Director under new section 94BA of the Prisons (Correctional Services) Act (see clause 21), and a definition of ‘approved voice recognition system’ which means a voice recognition system also approved by the Director under new section 94BA.

Section 5 will also include a definition of ‘community based order’ which will be found in new section 39B(1) of the Sentencing Act (inserted by clause 28 of this Bill); and a ‘community custody order’ which will be found in new section 48B(1) of the Sentencing Act (inserted by clause 29 of this Bill). 

Section 5 will also include a new definition of ‘monitoring order’ which includes a community based order, a community custody order, or a home detention order in Part 3 Division 5 Subdivision 2 of the Sentencing Act.  

Clause 19 	Section 7 replaced
Section 7 currently provides for the power to delegate the responsibilities of the Director of Correctional Services. This section is redrafted and simplified so that it complies with modern drafting style. This clause does not amend the effect of the current section 7.

Clause 20 	Section 65G amended
Section 65G of the Prisons (Correctional Services) Act is amended so that the current penalty for breaching an interstate custodial permit will be changed from $10,000 to a maximum penalty of 200 penalty units (which at the time of introduction of the Bill is 200 x $133), in addition to the already existing 2 years imprisonment. 

Clause 21	Section 94B and 94C replaced
This clause replaces sections 94B and 94C of the Prisons (Correctional Services) Act. These amendments make changes to and clarify the procedures currently in the Act. By virtue of clauses 4,12 and 20 of this Bill, these powers apply to surveillance officers supervising accused persons subject to electronic monitoring and voice recognition bail conditions, parolees subject to electronic monitoring and voice recognition conditions while on parole, and to offenders on community based orders, community custody orders and home detention orders under the Sentencing Act.

New section 94B provides that the Director may appoint a person who is not a probation officer under the Act to be a paid or unpaid surveillance officer to ensure that a person complies with monitoring orders made in respect of him or her. The amendment retains the effect of current section 94B(1).

New section 94BA enables the Director of Correctional Services to approve a monitoring device or voice recognition system for helping to monitor the activities of persons for whom monitoring orders are made. The definition of monitoring order is found in section 5 as amended by clause 18 of the Bill. 

New subsection 94BA(2) provides that approval may be given for a monitoring device or a voice recognition system whether or not it is used with another device, machine or equipment.

New subsection 94BA(3) defines ‘monitoring device’ and ‘voice recognition system’. ‘Monitoring device’ means an electronic device, attached to or worn by a person to enable the person’s geographical location to be monitored. A ‘voice recognition system’ means a system which uses computer hardware and software that is programmed to verify the voice of a particular person and enable the person’s geographical location to be monitored.

By virtue of clauses 4, 12 and 25 of the Bill, these definitions will apply to terms as used in the 
Bail Act, the Parole of Prisoners Act and the Sentencing Act  respectively.

New section 94C provides surveillance officers with powers to monitor compliance with monitoring orders, which are defined in section 5 to include community based orders, community custody orders and home detention orders. 

New section 94C(1) provides surveillance officers with the power to enter and search a place where a person is residing in accordance with an order, search the person, place on or attach to the person an approved monitoring device,  install, place, inspect and retrieve an approved monitoring device and anything necessary for the effective operation of the device, and require the offender to submit to monitoring tests. This may be done at any time and without a warrant, but only for the purposes of ensuring a person for whom a monitoring is made is complying with the order. 

For the purposes of requiring a person to submit to a monitoring test, new section 94C(2) permits a surveillance officer to carry out a breath test and permits a surveillance officer to take the person to a police station and detain them there for the police to carry out a breath test or a breath analysis or both of the tests , or to a hospital or health centre and detain them there in order to have a monitoring test carried out, for example a blood test.  

New subsection 94C(3) provides that surveillance officers who are not probation officers must not exercise a power under subsection 94C(1) or (2) unless in accordance with a direction given by the Director of Correctional Services.

New subsection 94C(4) permits a police officer to detain a person at the police station and carry out a breath test or a breath analysis (or both), or to take a person to a hospital or health centre and detain the person there, for monitoring tests to be carried out, if the surveillance officer takes the person to a police station under new subsection (2)(b)(i).

The effect of new subsection 94C(5) is that a surveillance officer can exercise a power under subsection 94C(1) or (2) with the force and help that is necessary and reasonable, and a police officer may exercise the powers under subsection (4) with the force and help that is necessary and reasonable. 

New subsection 94C(6) provides that a person who carries out a monitoring test at a hospital or health centre is protected from civil and criminal liability for anything reasonably done while carrying out the tests. 

New subsection 94C(7) is an evidentiary provision. It provides that in any legal proceedings, a certificate signed by a prescribed person stating matters relating to a monitoring test is evidence of the matters stated in the certificate and the facts on which the matters are based. 

New section 94C(8) enables Regulations to be made regarding the carrying out of monitoring tests and the arrest of persons so those tests can be carried out. 

New subsection 94C(9) provides that ‘blood test’, ‘breath analysis’ and ‘breath test’ have the same meaning as those terms have in the Traffic Act. ‘Monitoring test’ is defined to include a breath test, breath analysis, blood test, urine test and a saliva test. This subsection also provides that a ‘prescribed person’ is a person prescribed by regulation.

Clause 22	Section 101 amended
Subsection 101(3) sets out the matters in respect of which the Administrator may make regulations with respect to the Prisons (Correctional Services) Act.  

This subsection has been redrafted and restructured so that it is clearer.  It has also been expanded to provide that Regulations are able to be made in relation to a community based order and a community custody order which are introduced by clauses 28 and 29 respectively. 

Clause 23	Act further amended
This clause provides that the amendments in Schedule 3 to the Act come into effect. The Schedule makes minor amendments to the Prisons (Correctional Services) Act of a statutory law revision nature.

Part 5 Amendment of Sentencing Act
Clause 24	Act amended
This Part of the Bill amends the Sentencing Act.

Clause 25	Section 3 amended
This clause repeals the current definition of ‘monitoring device’ in section 3 of the Sentencing Act, and inserts a new definition of ‘approved monitoring device’ and ‘approved voice recognition system’ by reference to their definitions in section 5 of the Prisons (Correctional Services) Act (see clauses 18 and 21). 

This clause also inserts new definitions for  ‘community based order’, which is the new sentencing option in new section 39B(1) in Part 3 Division 4A, and for ‘community custody order’ which is the new sentencing option in new section 48B(1) in Part 3, Division 5, Subdivision 2A (introduced by clauses 28 and 29 of this Bill, respectively).  This clause also inserts a new definition for ‘prescribed program’ for the purposes of a community based order or community custody order, which is a course, training, education or similar activity prescribed by regulation for the order.

This clause also inserts a definition of ‘pre-sentence report’ for the purposes of a community based order in Part 3, Division 4A of the Sentencing Act and for a community custody in Part 3, Division 5, Subdivision 2A. ‘Pre-sentence report’ here means the report of the Director of Correctional Services in current sections 103 or 105 of the Sentencing Act.

Clause 26 	Section 5 amended
This clause inserts new subsection 5(2)(k) into the Sentencing Act. New subsection 5(2)(k) will allow the sentencing court to take into account, when deciding the sentence to impose, the time the offender spent on bail subject to the conditions that the offender reside at a particular place and was required to wear a monitoring device under new section 27A(1)(ia) of the Bail Act inserted by clause 6 of the Bill.  

Clause 27	Section 7 amended
New section 7(f) will insert a power for the sentencing court to impose a new non custodial sentencing option called a community based order. A community based order will be able to be made with or without recording a conviction.

New section 7(j) will insert a new power for the court to impose a new custodial sentencing option called a community custody order.

Clause 28 	Part 3, Division 4A inserted
This clause inserts a new Division 4A into Part 3 of the Sentencing Act to introduce a new 
non-custodial sentencing option called a community based order (CBO). 

New section 39A provides that the division applies if a court, other than the Youth Justice Court, convicts a person of an offence, which is not:
·	a sexual offence;
·	a violent offence; 
·	an assault under section 188(1) of the Criminal Code if a circumstance of aggravation specified in section 188(2) of the Code exists; or
·	another offence prescribed by regulation.

Subsection (2) provides for the following definitions for the types of offences that are excluded in subsection (1):
·	‘sexual offence’ has the same meaning as the term does in section 3 of the 
Sexual Offences (Evidence and Procedure) Act, namely, it “means an indictable offence involving: 
(a)	sexual intercourse or sexual penetration; or 
(b)	a sexual relationship; or 
(c)	sexual abuse; or 
(d)	indecent touching or an indecent assault; or 
(e)	any other indecent act directed against a person or committed in the presence of a child; or 
(f)	the making, collection, exhibition or display of an indecent object or indecent material; or 
(g)	sexual servitude or any other form of sexual exploitation; or 
(h)	an attempt to commit, an act of procuring, or any other act preparatory to the commission of, any of the above. “

·	‘violent offence’ means an offence involving the use, or threatened use, of violence.

This means that CBOs are not available to be imposed on sex or violent offenders. CBOs are also unavailable to be imposed on youths being tried in the Youth Justice Court, but may be available to be imposed on a youth if that youth is tried as an adult for an indictable offence in the Supreme Court.

New section 39B(1) provides that a court may only order a CBO for an offender if it receives a pre-sentence report.  New section 39B(2) provides the CBO may also be ordered in addition to imposing a fine on the offender but not in addition to a sentence of a term of imprisonment.

New section 39C provides that a copy of a CBO made must be provided to the offender and the Director of Correctional Services.

Pursuant to new section 39D, the CBO may only be made for a maximum period of two years. 

New section 39E(1) sets out the ‘statutory conditions’ that are included in every CBO. Those conditions are that the offender must:
·	not commit another offence punishable on conviction by imprisonment;
·	be subject to the ongoing supervision of a surveillance officer and report to a probation officer within two days of the CBO coming into effect;
·	tell a probation officer of any change of address or employment within two clear working days;
·	not leave the Territory except with permission of a probation officer;
·	be subject to monitoring by voice recognition from time to time and thereby provide a voice sample and be subject to directions in relation to the use of a voice recognition system; 
·	comply with Regulations made for CBOs, and all lawful directions and instructions given by probation officers.

New sections 39E(2) permits the Director of Correctional Services, from time to time, to direct by written notice to the offender that he or she must reside at a specified place,  wear or have attached an approved monitoring device and allow the placing or installation and retrieval of anything necessary for the efficient operation of the monitoring device, for the ‘temporary monitoring period’.
  
These conditions can only be imposed for a temporary monitoring period of up to 14 days under new subsection 39E(4), and under new subsection 39E(3), it is only permitted if the court has not ordered electronic monitoring under section 39F(2) and if the Director is satisfied that there is a material risk that the offender will not comply with another lawful instruction or direction relating to the offender’s activities. The direction under this new subsection may apply in situations where an offender is at risk if he or she travels to a certain place for a certain event, and a probation officer has directed the offender not to travel. The direction is not intended to be for a long duration and if the offender’s circumstances change so that longer or permanent electronic monitoring is warranted, the Director may apply to the court for a review under section 39L. 

In addition to the statutory conditions, under new section 39F(1), the court may impose at least one (but may impose more than one) court-ordered conditions listed in that subsection. These conditions include:
·	the offender must undertake prescribed programs as directed by the Director for a minimum period of one month and a maximum of one year;
·	the offender undergo certain assessments and treatments;
·	the offender must not consume or purchase alcohol or a drug (except those prescribed by a doctor or health practitioner).

In addition, under section 39F(2) the court may impose a condition that the offender reside at a specified place, and wear or have attached an approved monitoring device and allow the placing or installation and retrieval of anything necessary for the efficient operation of the monitoring device, while on the CBO or a lesser period ordered by the court.  As a result of this amendment the court will be able to order that an offender must reside at a specified place under new subsection (2)(a) and wear an electronic monitoring device under new subsection (2)(b). 

In addition, under new section 39F(3) the court may impose any other condition on a CBO that is necessary or desirable. The court cannot impose an additional condition regarding the making of restitution or payment of compensation, costs or damages.

New subsections 39F(4) and (5) provide that a prescribed program specified in a CBO must be deigned to address the personal factors that contributed to the offender’s criminal behaviour, and may be residential or community-based.

New section 39G allows the court to also impose a condition that the offender perform community work as directed by the Director of Correctional Services. Community work for this section has the same meaning as community work orders in Division 4 of Part 3 of the Sentencing Act. Subsection 39G(2) highlights that the purpose of imposing a community work condition is to allow for the adequate punishment of the offender in the community.

Under new subsection 39G(3) the maximum number of hours for which an offender may be required to undertake community work is 250 hours for each year the CBO is in force. In addition, the number of community work hours in any week is not to exceed 20 hours (subsection (4)) but if the offender requests and signs a consent, the maximum may be 40 hours in a week (subsection (5)).

New section 39H(1) provides that where a court makes separate CBOs for two or more offences committed by the offender, the conditions of the orders are to be served concurrently unless the court otherwise directs.  In addition, new section 39H(2) provides that, unless the court otherwise directs, the conditions of one CBO made in respect of an offender are to be served concurrently with the conditions of another CBO already in force in respect of the same offender, and under new section 39H(3), any direction given by the court as to whether conditions of a CBO are to be served concurrently or cumulatively must not result in the limit in hours for community work in section 39G being exceeded.

New section 39J(1) provides that where an offender has changed his or her place of residence, or for another reason it is not convenient for the offender to report at the place specified in the CBO, the Director of Correctional Services may direct that the offender report at another place. If the Director does so direct, under new subsection 39J(2) the direction takes effect as though it were originally stipulated in the CBO.

New section 39K(1) provides that, if requested by the offender, and where the Director of Correctional Services is satisfied that an offender is ill or other exceptional circumstances exist, the Director may, by written notice to the offender, suspend the operation of the CBO or any condition of it for a period of time. Further, new section 39K(2) provides that if the CBO is suspended, the period of the suspension does not count towards the duration of the CBO.

New section 39L provides that the Director of Correctional Services or the offender may apply for a review of the CBO. 

New sections 39L(1) and (2) provide that if the court is satisfied that :
·	the offender is unable to comply with a condition of the order because of a material change in the offender’s circumstances, or
·	material information was not presented to the Director for preparing the pre-sentence report given to the court, 

the court may either:
·	revoke the CBO and deal with the offender as if the offender had come before the court for sentence for the offence for which the CBO was made; or
·	vary the conditions of the CBO.

If the court makes an order under new section 39L(1)(a) revoking the CBO,  it must, in accordance with subsection (5), take into account the extent to which the offender complied with the CBO, any fine imposed when the CBO was made and any report of the Director. In addition, subsection (6) provides that the court may take into account:
·	whether the offender is in custody on a charge for another offence; or
·	whether the offender’s behaviour is such that the carrying out of the terms of the CBO is impracticable.

New subsection 39L(3) provides that if the Director of Correctional Services makes an application under this section, the court must summons the offender to appear before the court, and provides that the court may issue a warrant for the offender’s arrest if the offender does not appear in answer to that summons. New section 39L(4) provides that if the offender makes the application, the court must give notice to the Director of the application and the time and place fixed for hearing. 

New section 39M(1) provides that if a Justice is satisfied on information on oath that (a) the offender has breached a condition of the CBO that is still in force, or (b) breached a condition of the order when it was in force and the breach proceeding is brought within two years after the CBO ceased to be in force,  the Justice may, under subsection (2), issue a summons directing the offender to appear and show cause, or, if the Justice is satisfied that proceedings by summons may not be effective, the Justice may issue a warrant for the arrest of the offender. Under subsection (3), if the offender fails to attend before the court in accordance with the summons, the court may issue a warrant for the arrest of the offender.  

New section 39M(4) provides that a police officer, who suspects on reasonable grounds that the offender has breached a condition of the order, may arrest the offender without a warrant, and new section 39M(5) provides that a police officer may enter a premises or other place to arrest the offender and may use reasonable force if necessary to do so.  New section 39M(6) provides that for the purposes of sections 137 (time for bringing an arrested person before a Justice or a court) and 138 (determining a reasonable period for bringing an arrested person before a Justice or a court) of the Police Administration Act, a breach of the CBO is taken to be an offence.

New section 39N provides for the orders a court may make upon the finding of a breach of the CBO. Under subsection (2) if the court is satisfied the offender breached the CBO and the CBO is still in force, the court may vary the conditions of the order, or confirm or revoke the order.  

If the court revokes the order under subsection (2)(c), subsection (7) provides that the court may deal with the offender for the offence for which the CBO was made as if it had just found the offender guilty.

If the CBO is no longer in force, subsection (3) provides that the court may deal with the offender for the offence for which the CBO was originally made as if it had just found the offender guilty, or confirm the discharge of the CBO and take no further action. 

New subsection (8) provides that in deciding how to deal with the offender under subsection (3)(a), or under subsection (7), the court must take into account the extent to which the offender had complied with the order, any sentence of imprisonment or fine imposed when the CBO was made, and any report by the Director of Correctional Services.

The effect of new subsection 39N(4) is that if the court revokes the CBO and it made an order under section 25M of the Motor Vehicles Act (see clause 36), it may revoke that order, or, if the CBO is no longer in force and the court had made an order under section 25R of the Motor Vehicles Act, that order may also be revoked.  

Subsection (5) provides that if the court revokes an order under section 25M or 25R of the 
Motor Vehicles Act (referred to as ‘the MVA order’) and a licence was granted because of an application for a licence made under the order, that licence is cancelled and the court must give notice of the cancellation to the Registrar of Motor Vehicles.  If the court revokes an order under section 25R of the Motor Vehicles Act, all licence disqualifications applying to that offender at the time the MVA order was made are reinstated and all demerit points applying to the offender at the time of the MVA order are reactivated. 

New subsection 39N(6) clarifies that, in relation to reinstatement of licence disqualification, the period from the making of the MVA order to its revocation must be disregarded. This means that time does not continue to run in respect of a disqualification period after the making of the MVA order, and the disqualification period as at the date of the order is reinstated.

For example, if an offender has a three year licence disqualification remaining when an order under section 25R is made, that disqualification ceases to have effect under section 25S of the Motor Vehicles Act (see clause 36).  If, 12 months after having been granted the order under section 25R, the offender is found to have breached their CBO or CCO, the licence may be cancelled.  At this point, the three year licence disqualification will be reinstated.  It is not the case that the 12 months that passed between the person being granted the order under section 25R and that licence being cancelled under section 39N of the Sentencing Act is deducted from their licence disqualification so that they only have two years’ disqualification remaining.  

New section 39P provides that matters contained in records generated by or through a monitoring device, approved voice recognition system, or records comprising the notebooks or diaries of a surveillance officer produced to a court are, so far as is applicable to the offender, evidence of the activities of the offender. This is relevant in particular to proving a breach of a CBO.

New section 39Q provides that if a breach of a CBO involves the destruction of or damage to a monitoring device or associated machine or equipment, the offender is liable to pay the costs of restoring or replacing it and those costs may be recoverable as a debt payable to the Territory.

New section 39R provides that if the Director of Correctional Services is satisfied that the offender has complied with the conditions of the CBO, the Director must give a certificate that the CBO is discharged, and upon the issue of that certificate the CBO is discharged.

Clause 29	Part 3, Division 5, Subdivision 2A inserted
This clause inserts a new Subdivision 2A into Division 5,  Part 3 of the Sentencing Act to provide for a new custodial sentencing order called a community custody order (CCO).

New section 48A(1) provides that the subdivision applies if a court, other than the Youth Justice Court:

·	convicts an offender of an offence to which the Subdivision applies, which, according to subsection (2) is not a sexual offence, a violent offence, an assault under section 188(1) of the Criminal Code if a circumstance of aggravation specified in section 188(2) of the Code exists, or another offence prescribed by regulation; and
·	decides to impose a sentence of imprisonment of not more than 12 months.

Subsection (2) provides for the following definitions for the types of offences that are excluded in subsection (1):
·	‘sexual offence’ has the same meaning as the term does in section 3 of the 
Sexual Offences (Evidence and Procedure) Act, namely, it “means an indictable offence involving: 
(a)	sexual intercourse or sexual penetration; or 
(b)	a sexual relationship; or 
(c)	sexual abuse; or 
(d)	indecent touching or an indecent assault; or 
(e)	any other indecent act directed against a person or committed in the presence of a child; or 
(f)	the making, collection, exhibition or display of an indecent object or indecent material; or 
(g)	sexual servitude or any other form of sexual exploitation; or
(h)	an attempt to commit, an act of procuring, or any other act preparatory to the commission of, any of the above. “

·	 ‘violent offence’ means an offence involving the use, or threatened use, of violence.

This means that CCOs are not available to be imposed on sex or violent offenders. CCOs are also unavailable to be imposed on youths being tried in the Youth Justice Court, but may be available to be imposed on a youth if that youth is tried as an adult for an indictable offence in the Supreme Court.

New section 48B(1) provides that a court may order a sentence of imprisonment be served by way of CCO only if it receives a pre-sentence report. 

New section 48B(2) provides that the court must not make the CCO if the court suspends the sentence of imprisonment.  In addition, under new subsection (3), the court may only make a CCO for an offender who is convicted of more than one offence in the same proceeding if the total period of imprisonment imposed for all offences does not exceed the maximum of 
12 months imprisonment. 

New subsection 48B(4) provides that the court may make a CCO in addition to a fine.

New section 48C provides that the court must give a copy of the CCO to the offender and to the Director of Correctional Services.

New section 48D provides that the period of a CCO is the equivalent of the term of imprisonment imposed by the court under section 48A(1)(b) which is up to 12 months.

New section 48E provides that every CCO is subject to statutory conditions which are that the offender must:
·	not commit another offence punishable on conviction by imprisonment during the period of the order;
·	a community work and program condition in new subsection (2);
·	report to a probation officer within 2 days of the CCO coming into effect;
·	report to, and receive visits from, a probation officer at least twice during each week the order is in force or shorter period as specified in the CCO;
·	tell a probation officer of any change of address or employment within 2 working days;
·	not leave the Territory except with permission of a probation officer;
·	be subject to monitoring by voice recognition from time to time and thereby provide a voice sample and be subject to directions in relation to the use of a voice recognition system; 
·	comply with regulations and all lawful instructions and directions of probation officers.

New subsection (2) provides that the offender must attend a place specified for 12 hours each week to perform a minimum of eight hours per week of unpaid community work, but no more than eight hours in a day, and spending any balance of hours undergoing counselling or treatment as directed by the Director, or undertaking a prescribed program. New subsection (5) provides that the counselling or treatment in (2)(b) must relate to the offender’s psychiatric or psychological problem, or their misuse of alcohol or drugs

Subsection (2) is subject to new subsection (3), which provides that the Director of Correctional Services may increase the number of hours to 20 hours per week by written notice. New subsection (4) provides for the criteria upon which the Director may increase those hours, namely, if it is appropriate in the offender’s circumstances (including whether or not the offender is employed), and only to require the offender to perform community work or a combination of community work and undertaking a prescribed program targeting employment skills. The total number of hours combined under (2) and (3) cannot exceed 20 hours per week. 

.New sections 48E(6) and (7) permit the Director of Correctional Services, from time to time, to direct by written notice to the offender, that he or she must reside at a specified place, and wear or have attached an approved monitoring device and allow the placing or installation and retrieval of anything necessary for the efficient operation of the monitoring device, for the ‘temporary monitoring period’. 

These conditions can only be imposed for a temporary monitoring period of up to 14 days under new subsection (5) and, under new subsection (4)(a), is only permitted if the court has not ordered electronic monitoring under section 48F(2), and if the Director is satisfied that there is a material risk that the offender will not comply with another lawful instruction or direction relating to the offender’s activities.

This direction may apply in situations where an offender is at risk if he or she travels to a certain place for a certain event, and a probation officer has directed the offender not to travel. The direction is not intended to be for a long duration and if the offender’s circumstances change so that longer or permanent electronic monitoring is warranted, the Director may apply to the court for a review under section 48J. 

New section 48F provides for conditions that the court may order in addition to the core conditions of the CCO. Under this section the court may impose any of the following:
·	that the offender undertake one or more specified prescribed programs during the period of the CCO or a shorter period if the pre-sentence report recommends such a condition;
·	that the offender must not consume alcohol or a drug (other than that prescribed by a doctor or health practitioner).
·	In addition, under section 48F(2) the court may impose a condition that the offender reside in a specified place, and wear or have attached an approved monitoring device and allow the placing or installation and retrieval of anything necessary for the efficient operation of the monitoring device, while on the CCO or a lesser period ordered by the court.  

New subsection 48F(3) provides that a prescribed program specified in the CCO must be designed to address the personal factors that contribute to the offender’s criminal behaviour, and new subsection 48F(4) provides that a prescribed program may be residential or community based.

New section 48G provides that where an offender has changed his or her place of residence or for another reason it is not convenient for the offender to report to a particular place, the Director of Correctional Services may direct that the offender report at another place. If the Director does so direct, the direction takes effect as though it were originally stipulated in the CCO.

New section 48H provides that, upon the request of the offender, and where the 
Director of Correctional Services is satisfied that an offender is ill or other exceptional circumstances exist, the Director may by written notice to the offender, suspend the operation of the CCO or any condition of it for a period of time. Subsection (2) clarifies that the period of suspension of the order does not count towards the period of time for which the order is to remain in force or a condition is to be complied with.

New section 48J provides that the Director or offender may apply for a review of the CCO.  If the court is satisfied under subsection (2) that:
·	the offender is unable to comply with a condition of the order because of a material change in the offender’s circumstances; or
·	material information was not presented to the Director for preparing the pre-sentence report given to the court,

the court may, under subsection (1), either:
·	revoke the CCO and order the sentence of imprisonment be quashed and deal with the offender as if the offender had come before the court for the sentence for the offence for which the community custody order was made; or
·	vary the conditions of the CCO.

If the court makes an order under subsection (1)(a) to revoke the CCO, it must, in accordance with subsection (5), take into account the extent to which the offender complied with the CCO, any fine imposed when the order was made, and any report of the Director. 

New subsection 48J(3)(a) provides that if the Director of Correctional Services makes an application for review under this section, the court must summons the offender to appear before the court at a specified time and place for hearing the application. Subsection (3)(b) enables the court to issue a warrant for the offender’s arrest if the offender does not appear in answer to that summons. 

New subsection 48J(4) provides that if the offender makes the application, the court must give notice to the Director of the application and the time and place fixed for hearing. 

New section 48K(1) provides that if a Justice is satisfied on information on oath that the offender has breached a condition of the CCO that is still in force, or, within two years after the expiry of the CCO the Justice is satisfied that the offender breached a condition of the order when it was in force (even if a certificate of discharge was given under section 48Q),  the Justice may, under subsection (2) issue a summons directing the offender to appear and show cause as to why he or she should not be dealt with further under Subdivision 2A. Alternatively, if the Justice is satisfied that proceedings by summons may not be effective, the Justice may issue a warrant for the arrest of the offender. Under subsection (3), if the offender fails to attend before the court in accordance with the summons, the court may issue a warrant for the arrest of the offender. 

New subsection 48K(4) provides that a police officer who suspects on reasonable grounds that the offender has breached a condition of the order may arrest the offender without a warrant. Subsection (5) provides that a police officer may enter a premises or other place to arrest the offender and may use reasonable force if necessary to do so.  Subsection (6) provides that for the purposes of sections 137 (time for bringing an arrested person before a Justice or a court) and 138 (determining a reasonable period for bringing an arrested person before a Justice or a court) of the Police Administration Act, a breach of the CCO is taken to be an offence.

New section 48L provides for orders a court may make if the court is satisfied the offender has breached a CCO by committing an offence punishable by imprisonment. If an offender is convicted of an offence committed during the CCO the court must, unless it would be unjust to do so because of exceptional circumstances that have arisen since the order was made, revoke the order if it is still in force, and whether or not it is in force, sentence the offender to imprisonment for the unexpired portion of the term of the CCO, starting from the date of the breach of the condition not to commit an offence punishable by imprisonment (ie the date of the offence).

The effect of new subsection 48L(3) provides that, additionally, where the CCO is still in force and  the court previously made an order under section 25M of the Motor Vehicles Act  that order must be revoked, and where the CCO is no longer in force and the court made an order under section 25R of the Motor Vehicles Act, the court must also revoke that order.  

New subsection 48L(4) provides that where a licence was granted because of an application enabled by sections 25M or 25R of the Motor Vehicles Act (referred to as ‘the MVA order’), the effect of revoking the orders is that the licence is cancelled and the court must give notice of the cancellation to the Registrar of Motor Vehicles.  If the court revokes an order under section 25R of the Motor Vehicles Act, all licence disqualifications applying to the offender are reinstated and all demerit points applying to the offender are reactivated. 

New subsection 48L(5) clarifies that in relation to reinstatement of licence disqualification, the period from the making of the MVA order to its revocation must be disregarded. This means that time does not continue to run in respect of a disqualification period after the making of the MVA order and the disqualification period as at the date of the order is reinstated.

For example, if an offender has a three year licence disqualification remaining when an order under section 25R is made, that disqualification ceases to have effect under section 25S of the Motor Vehicles Act (see clause 36).  If, 12 months after having been granted the order under section 25R, the offender is found to have breached their CBO or CCO, the licence granted will be cancelled.  At this point, the entire three year licence disqualification will be reinstated.  It is not the case that the 12 months that passed between the person being granted an order under section 25R and that licence being cancelled under section 39N of the Sentencing Act is deducted from their licence disqualification so that they only have two years’ disqualification remaining.  

New subsection 48L(6) provides that, if the court sentences the offender to imprisonment for the unexpired portion of the CCO, it must be served immediately and cumulatively on another term of imprisonment previously imposed on the offender by any other court.

New subsection 48L(7) provides if the court is satisfied there are exceptional circumstances in subsection (2), the court may vary or confirm the CCO if it is still in force, or confirm the order is discharged and take no further action if the CCO is no longer in force. 

New section 48M provides for the orders a court may make upon the finding that an offender breached the CCO, other than a breach by the commission of an offence punishable by imprisonment. If the order is still in force and the court is satisfied the offender breached another condition of the CCO the court may, under subsection (2) vary, confirm or revoke the order and sentence the offender to imprisonment for the unexpired portion of the term of the CCO, starting from the date of the breach of the condition.

New subsection 48M(3) provides that if the CCO is no longer in force, the court may sentence the offender to imprisonment for the unexpired portion of the term of the CCO, starting from the date of the breach of the condition, or confirm the discharge of the order and take no further action. 

New subsection (7) provides that if the court sentences the offender to imprisonment for the unexpired portion of the order under subsection (2)(c) or (3)(a), the term of imprisonment must be served immediately and cumulatively on any other term of imprisonment imposed by any court.

New subsection 48M(4) provides that if the court revokes the CCO and it made an order under section 25M of the Motor Vehicles Act, it may revoke that order, or, if the CCO is no longer in force and the court had made an order under section 25R of the Motor Vehicles Act, that order may also be revoked.  

Subsection 48M(5) provides that if the court revokes an order under section 25M or 25R of the Motor Vehicles Act (referred to as ’the MVA order’) and a licence was granted because of an application enabled by an order under an MVA order, that licence is cancelled and the court must give notice of the cancellation to the Registrar of Motor Vehicles.   If the court revokes an order under section 25R of the Motor Vehicles Act, all licence disqualifications applying to the offender are reinstated and all demerit points applying to the offender are reactivated.

New subsection 48M(6) clarifies that in relation to reinstatement of licence disqualification, the period from the making of the MVA order to its revocation must be disregarded. This means that time does not continue to run in respect of a disqualification period after the making of the MVA order, and the disqualification period as at the date of the order is reinstated.

For example, if an offender has a three year licence disqualification remaining when an order under section 25R is made, that disqualification ceases to have effect under section 25S of the Motor Vehicles Act (see clause 36).  If, 12 months after having been granted the order under section 25R, the offender is found to have breached their CBO or CCO, the licence will be cancelled.  At this point, the entire three year licence disqualification will be reinstated.  It is not the case that the 12 months that passed between the person being granted an order under section 25R and that licence being cancelled under section 39N of the Sentencing Act is deducted from their licence disqualification so that they only have two years’ disqualification remaining.  

New section 48N provides that matters contained in records generated by or through a monitoring device, approved voice recognition system or records comprising the notebooks or diaries of a surveillance officer produced to a court are, so far as is applicable to the offender, evidence of the activities of the offender.

New section 48P provides that if a breach of a CCO involves the destruction of or damage to a monitoring device or associated machine or equipment, the offender is liable to pay the costs of restoring or replacing it and those costs may be recoverable as a debt payable to the Territory.

New section 48Q provides that if the Director of Correctional Services is satisfied that the offender has complied with the conditions of the CCO, the Director must give a certificate that the CCO is discharged, and upon the issue of that certificate the CCO is discharged.

Clause 30	Section 102A amended
This clause amends section 102A(1) of the Sentencing Act to add community work orders, CBOs, CCOs and home detention orders to the list of orders to which this section applies. Subsection 102A(2) provides that on making of one of the orders listed in subsection 102A(1), the offender must not leave the court without signing the order.

Clause 31	Section 127 repealed
This clause repeals section 127 of the Sentencing Act because it is redundant. Section 25 of the Interpretation Act provides for procedures for the service of documents, which are more extensive procedures than current section 127 of the Sentencing Act.

Clause 32 	Part 12, Division 4 inserted
This clause inserts new section 132 into the Sentencing Act which provides transitional provisions for the new CBOs and CCOs. It makes it clear that the new orders may be imposed on an offender after commencement of the amendments creating those orders, even if the offence for which those orders are imposed was committed prior to the commencement.

Clause 33	Act further amended
This clause provides that the amendments in Schedule 4 to the Act come into effect. The Schedule makes minor amendments to the Sentencing Act of a statute law revision nature.

Part 6 Amendment of other laws
Division 1 Motor Vehicles Act

Clause 34	Act amended
This Division amends the Motor Vehicles Act.

Clause 35	Section 5 amended
This clause inserts several new signifiers into section 5(1) of the Motor Vehicles Act, referring to the sections that define them.  The definitions of ‘community order’, ‘driving program’, ‘licence disqualification’ and ‘licensed driver’ are to be found in new section 25J. The definition of  ‘offender’ is to be found in new section 25K(1)(a). 

The definitions of ‘previously licensed offender’ and ‘unlicensed offender’ are to be found in new sections 25L(1)(a) and (1)(b) respectively.

Clause 36	Part 2A inserted
This clause inserts new Part 2A into the Motor Vehicles Act to make special provisions for licence disqualifications for offenders under community based and community custody orders .

Division 1 of Part 2A sets out preliminary matters for the purposes of Part 2A, namely important definitions and the circumstances in which Part 2A applies.

New section 25J provides the following definitions for the purposes of new Part 2A:
·	‘community order’ means (a) a community based order under Part 3, 
Division 4A of the Sentencing Act which is inserted by clause 28 of the Bill, or (b) a community custody order under Part 3 Division 5, Subdivision 2A of the Sentencing Act which is inserted by clause 29 of the Bill;
·	‘driving program’ for a community order means a prescribed program as defined in section 3(1) of the Sentencing Act (as amended by clause 25 of the Bill) that requires the offender for whom the order is made to undertake a program targeting rehabilitating drink or drug driving, or road safety; and
·	‘licence disqualification’ means a disqualification applicable to the offender preventing them from holding, obtaining or renewing a licence. This may be a disqualification imposed because of the provisions of the Traffic Act .
·	‘licensed driver’ means a person who holds a licence to drive a motor vehicle other than a learner licence or a licence that is provisional under section 10A, or an equivalent licence granted in a state or another territory.

‘Offender’ is defined in new section 25K(1)(a), ‘previously licensed offender’ is defined in new section 25L(1)(a), and ‘unlicensed offender’ is defined in new section 25L(1)(b).

New section 25K describes the circumstances in which Part 2A applies. It applies if:
·	an offender has committed an offence against the Traffic Act;
·	because of the finding of guilt for that offence the offender incurs a licence disqualification under the Traffic Act. Licence disqualification is defined in new section 25J;
·	all of the offender’s unexpired licence disqualifications total less than five years. These disqualifications include disqualifications incurred previously and unrelated to the present offence for which the finding of guilt was made, provided the disqualification is still in effect;
·	a community order was made for the offender, regardless of whether the order was also made in respect of another offence that did not involve contravention of the Traffic Act. A community order is defined in new section 25J; and
·	the community order requires the offender to undertake a driving program. Driving program is defined in new section 25J.

New subsection 25K(2) clarifies that Part 2A applies despite provisions in the 
Traffic Act which provide for the cancellation or suspension of the offender’s licence or a licence disqualification applying to the offender.

The Bill inserts a new Division 2 into new Part 2A of the Motor Vehicles Act which provides for court orders for licences while a community order is in force. 

New section 25L(1) provides that, in order for the offender to be permitted to undertake practical training as part of a driving program under a community order without technically committing an offence for driving while disqualified, an offender may apply to the court that made the community order for an order that the Registrar of Motor Vehicles grant a licence to the offender while the community order is still in force.  

Under new section 25L(1)(a), if the offender is a ‘previously licensed offender’, that is, an offender who held a licence to drive a motor vehicle (either in the Territory or elsewhere) when the disqualification in section 25K(1)(b) took effect, the offender may apply to the Court for an order that the Registrar must grant the offender a licence of a stated class while the community order is still in force.  Under new section 25L(1)(b), if the offender is an ‘unlicensed offender’, that is, an offender who has not previously held a licence to drive a motor vehicle in the Territory or anywhere else when the disqualification in new section 25K(1)(b) took effect, the offender may apply for an order that the Registrar of Motor Vehicles must accept and deal with an application by the offender for a learner licence.  The unlicensed offender must still comply with section 9 of the Motor Vehicles Act, such as, for example, the requirement to pass a theory test (section 9(4)) in order to obtain the learner licence.

New subsection 25L(2) makes it clear an offender cannot apply for a licence to drive a commercial passenger vehicle or a motor cycle under new section 25L(1).  

New subsection 25L(3) provides that an application must be made to the court that made the community order for the offender.

New subsection 25L(4) provides that the clerk or Registrar of the court to which the application in section 25L is made must give immediate written notice of the application to the Director of Correctional Services.  

New section 25M provides that a court may make the order sought by the offender under new section 25L if it is satisfied it is appropriate to do so in the circumstances. 

New section 25N explains the effect of an order made by the court under new section 25M in respect of a previously licensed offender (which is defined in new section 25L(1)(a)).  If the order is made by the court under section 25M, the Registrar of Motor Vehicles must grant the offender a licence to drive a motor vehicle. Subsection 25N(3) provides that the licence granted under section 25M is valid only for the duration of the community order, and, under subsection (4) is subject to the condition that the offender may drive a vehicle of the stated class only while under the direct supervision of a fully licensed driver (which is defined in new section 25J(a)). The purposes for which the previously licensed driver can obtain the licence is  for undertaking practical training as part of the driving program under the community order, and, after successfully completing the driving program, for undertaking further practical driver training. This will enable the previously licensed offender to continue to drive after the driving program while supervised, and may enable them to do so for the purposes of employment, for example.

New section 25P explains the effect of an order made by the court under new section 25M in respect of an unlicensed offender (which is defined in new section 25L(1)(b)). Subsection 25P(2) provides that if the order is made by the court under new section 25M, the Registrar of Motor Vehicles must accept and deal with an application from the offender for a licence to drive a motor vehicle of the class stated in the order. This means the unlicensed offender must comply with the requirements of section 9 of the Motor Vehicles Act (which deals with learner licences) and apply to the Registrar of Motor Vehicles for a learner licence in the usual course. New subsection 25P(3) provides that if the Registrar grants a learner licence to the offender, the licence is valid for the duration of the community order, and new subsection 25P(4) provides that the duration of the licence under subsection 25P(3) applies despite section 9(2) of the 
Motor Vehicles Act which states that the validity of a learner licence is for two years.

Further, under subsection (5), the licence granted under new section 25M to the unlicensed driver is subject to the condition that the offender may only drive while supervised by a fully licensed driver (defined in section 25J(a)) for the class of motor vehicle. The purposes for which the licence may be used are for undertaking practical training as part of the driving program under the community order, and, after successfully completing the driving program, for undertaking further practical driver training until the end of the order. This enables the learner to undertake continuous practical driving training to meet the requirements of continuous practice in section 10(1A) of the Motor Vehicles Act.

The Bill also inserts new Division 3 into new Part 2A to provide for orders for licence applications after a community order is discharged. 

New section 25Q provides that, in order to permit the offender to obtain a licence to drive a motor vehicle on the discharge of the community order, an offender may apply to the court for an order that the Registrar of Motor Vehicles accept and deal with an application by the offender for a licence to drive a motor vehicle of a stated class. Subsection 25Q(2) provides that the application under this section can only be made to the court that made the original community order, and subsection 25Q(3) provides that the clerk or Registrar of the court must immediately give the Director of Correctional Services notice of the application.

Under new section 25R the court may only make the order sought if:
·	it is satisfied that it is appropriate in the circumstances to make the order for the offender and the court must take into account a number of factors in subsection 25R(2) in making this decision;
·	a certificate of discharge has been given under section 39R or 48Q of the Sentencing Act for the community order (see clauses 28 and 29 of the Bill); and
·	a statement has been given to the court by the provider of the driving program undertaken by the offender that the offender has successfully completed the program. Driving program is defined in new section 25J(a).

When deciding whether to make an order under new section 25R(1) the court must have regard to the matters outlined in subsection (2), namely:
·	the type and seriousness of the offence for which the offender is disqualified from obtaining a licence;
·	the safety of the community, including matters relating to the offender’s rehabilitation;
·	the offender’s need for a licence to drive a motor vehicle of the class stated in the application in the course of the offender’s employment, or to get to the offender’s place of employment; and
·	the offender’s employment prospects if the offender has a licence to drive a motor vehicle of the class stated in the application.

New subsection 25R(3) provides that the making of an order under this section does not abrogate any disqualification under Part V of the Traffic Act on the offender from obtaining any other licence than an AIL licence. This means that, if the offender is under such a disqualification, even though the disqualification period ceases to apply, the offender may only apply for an AIL licence under section 10(4A) to (4D) of the Motor Vehicles Act. In addition, new subsection (4) also provides that an unlicensed offender can only apply for a learner licence.

New subsection 25R(5) provides that the court must refuse to make the order under this section if the Registrar of Motor Vehicles would be required to refuse to grant a licence under section 102AA of the Motor Vehicles Act. Section 102AA requires the traffic offender to undertake certain courses, such as a Drink Driver Education course before obtaining a licence.

New section 25S outlines the effect of an order under section 25R. 
New subsection 25S(1) provides that if the court makes an order under new section 25R:
·	all licence disqualifications applying to the offender cease to have effect except, as outlined in subsection (2), the disqualification under the Traffic Act from holding or obtaining any licence other than an AIL licence; and
·	all demerit points that the offender might have accrued under Part 3 of the 
Motor Vehicles Act cease to be active. 

The note for subsection 1(b) clarifies that demerit points which are made inactive under section 25S(1)(b) can be become active again pursuant to sections 39N(5)(c)(ii), section 48L(4)(c)(ii) or section 48M(5)(c)(ii) of the Sentencing Act(see clauses 28 and 29 of this Bill) if the order under section 25R of the Motor Vehicles Act is revoked under 39N(4), 48L(3) or 48M(4) of the Sentencing Act.

Under new subsection (1)(c) the Registrar of Motor Vehicles must then accept an application from the offender for a licence to drive a motor vehicle of the class stated in the order. Whether the Registrar accepts and deals with an application is subject to: 
·	new section 25T below which provides that the licence granted may be required to be subject to an undertaking to be of good driving behaviour  in some circumstances; and
·	new subsections 25S(3), (4) and (5) which provide that if, as a result of a court order under new section 25M, the offender had applied for and had been granted a learner licence under new section 25P(2) while on a community order, and the Registrar is satisfied that the offender undertook further practical driver training after the completion of the driving program until the end of the CBO or CCO, the learner -
·	is taken to understand the laws in force relating to the regulation of road traffic for section 9(4) so that they do not have to undertake the theory test again;  and
·	is given credit for the period of time they held a learner licence while on a community order toward minimum duration of the learner licence which is at least six months under section 10(1A).

New section 25T provides that if an offender applies for a licence under new 
section 25Q, and the offender has a disqualification period applicable to them as a result of demerit points accruing under Part 3 of the Motor Vehicles Act, the offender must lodge with that application an undertaking to be of good driving behaviour for one year, which is called the ‘good driving period’.  Under new subsection 25T(2), the undertaking lodged with the application must be in the approved form. New subsection 25T(3) provides that if the Registrar grants the licence applied for, the good driving period starts on the day the licence granted by the Registrar starts.
  
New subsection 25T(4) provides that if the offender incurs two or more demerit points during the good driving period, the Registrar must serve on the offender a suspension notice specifying a suspension period that is double the suspension period the offender had previously incurred in respect of the accrual of demerit points under Part 3 of the Motor Vehicles Act which had been waived as a result of an order under new section 25R. ‘Suspension notice’ and ‘suspension period’ are those referred to in section 26 of the Motor Vehicles Act.

Clause 37 	Section 28 amended
This clause redrafts a note after section 28 of the Motor Vehicles Act, which relates to active demerit points and sets out the circumstances in which demerit points may cease to be active.  The note clarifies that, in addition to the circumstances set out in section 28, demerit points may cease to be active on the making of an order by a court under section 25S(1)(b) (see clause 36 above).

Division 2 Workers Rehabilitation and Compensation Act

Clause 38	Act amended
This Division amends the Workers Rehabilitation and Compensation Act.

Clause 39	Section 3 amended
Subclause (1) amends section 3(4) of the Workers Rehabilitation and Compensation Act so that ‘worker’ for the purposes of this Act includes youths and adults who perform community work under community court orders. 
‘Community court order’ is defined in new subsection 3(4A) of the Act, inserted by subclause (2) , to include the following orders:
·	a community work order imposed under the Fines and Penalties (Recovery) Act, Sentencing Act or Youth Justice Act; or
·	a CCO or CBO under the Sentencing Act (see clauses 28 and 29 of the Bill).

Division 3 Youth Justice Act

Clause 40			Act amended
This Division amends the Youth Justice Act. 

Clause 41			Section 83 amended
Clause 41 amends section 83 of the Youth Justice Act, which sets out the orders that the 
Youth Justice Court can make.  Sub-section 83(1)(m) currently provides that the Youth Justice Court may ‘make any other order in respect of the youth that another court could make if the youth were an adult convicted of that offence’.  Clause 41 amends subsection 83(1)(m) so that it does not allow the Youth Justice Court to order a CCO or CBO under the Sentencing Act.  

Division 4 Other laws
Clause 42 	Other laws amended
This clause gives effect to the amendments in Schedule 5 to the Bill. The Schedule makes minor amendments of a statute law revision nature to the Bail Regulations and the Supreme Court Rules.

Part 7 Expiry of Act
Clause 43 	Expiry

This clause provides that the Bill once enacted will make the amendments contained in it and then expire immediately after.

Schedule 1 Bail Act further amended
This Schedule makes minor amendments of a statute law revision nature to the 
Bail Act.  The amendments are to change the numbering in headings in the Act from roman numerals to ordinary numbers, in accordance with current drafting style.

Schedule 2 Parole of Prisoners Act further amended
This Schedule makes various minor amendments of a statute law revision nature to the 
Parole of Prisoners Act.  In particular, the Schedule inserts Division numbers and descriptions to conform to current drafting style, inserts a heading for section 3A ‘Parole Board Established’, and changes references to ‘constables’ to ‘police officers’.

Schedule 3 Prisons (Correctional Services) Act further amended
This Schedule makes minor amendments to the Prisons (Correctional Services) Act. In particular it renames the heading for Part 27 to ‘Powers, procedures and related matters for orders under the Sentencing Act and Alcohol Reform (Substance Misuse Assessment and Referral for Treatment Court) Act’. The Substance Misuse Assessment and Referral for Treatment Court (the Smart Court) replaces the Alcohol Court currently referred to in that Part of the Sentencing Act by virtue of the  Alcohol Reform (Substance Misuse Assessment and Referral for Treatment Court) Bill which will be passed in 2011 and commenced prior to this Bill.

Schedule 4 Sentencing Act further amended
This Schedule makes minor amendments of a statute law revision nature to the Sentencing Act.

Schedule 5 Other laws amended
This Schedule makes minor amendments of a statute law revision nature to the 
Bail Regulations and to the Supreme Court Rules to change numbering of headings from roman numerals to ordinary numbers, in accordance with current drafting style.