2010

LEGISLATIVE ASSEMBLY OF THE NORTHERN TERRITORY

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

SERIAL No. 122

EXPLANATORY STATEMENT

Criminal Code Amendment (Mental Impairment and Unfitness for Trial) Bill 2010

GENERAL OUTLINE

This Bill amends Part IIA of the Criminal Code regarding supervision orders. 

The primary object of the Bill is to empower the Supreme Court to authorise, in its discretion, the use of restrictive practices to enforce a custodial or non custodial supervision order, or to prevent the supervised person from harming him or herself or another person. The amendments are introduced to respond to the effect of the ruling by the Chief Justice, the Hon Brian R Martin in R v Ebatarintja [2010] NTSC 06. The 
Chief Justice ruled that the use of restraint by any person other than prison or police officers is not authorised by Part llA of the Criminal Code.

The Bill also makes a number of amendments to correct ambiguities and procedural issues and amendments of a statute law revision nature.

NOTES ON CLAUSES

Part 1 Introduction
Division 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 Criminal Code Amendment (Mental Impairment and Unfitness for Trial) Act 2010.

Clause 2.	Act amended

The Bill will amend parts of the Criminal Code.

Clause 3.	Section 43A amended

Clause 3(1) provides a short hand reference to the Chief Executive Officer of the NT Government Agency that administers the Medical Services Act (NT), which, at the time of introduction of the Bill is the Department of Health and Families. The remaining references in s43A are updated to reflect this. 

Clause 3(3) defines ‘appropriate person’ in section 43A(d) as the Chief Executive Officer of the NT Government Agency that administers the Parole of Prisoners Act (NT), which, at the time of introduction of the Bill, is the Department of Justice.

Clause 4.	Section 43I amended

This clause replaces ‘appropriate place’ with ‘place the court considers appropriate’ to make it clear that a decision about what an appropriate place is is in the discretion of the court.

New subsection 43I(3A) will make it clear that custody in prison under an interim order made under subsection 43I(3)(b) is to be the option of last resort.

Clause 5.	Section 43O amended

This clause replaces ‘appropriate place’ with ‘place the court considers appropriate’ to make it clear that a decision about what an appropriate place is is in the discretion of the court.

Clause 6.	Section 43R amended

This clause replaces ‘appropriate place’ with ‘place a Judge considers appropriate’ to make it clear that a decision about what an appropriate place is is in the discretion of the Judge.

Clause 7.	Section 43Y amended

Clause 7(1) is a minor amendment of a statute law revision nature.

Clause 7(2) replaces ‘appropriate place’ with ‘place the court considers appropriate’ to make it clear that a decision about what an appropriate place is is in the discretion of the court.

New subsection 43Y(2) makes it clear that custody in prison under an interim order made under subsection (1) is to be the option of last resort.

Clause 8.	Section 43ZA amended

New subsection 43ZA(2A) applies to custodial supervision orders where a person is committed to custody in a ‘place the court considers appropriate’ that is not a prison, and to non custodial supervision orders.

The new subsection allows the Supreme Court to authorise persons approved by the CEO (Health) (‘authorised persons’), who are not police or prison officers, to use reasonable force and assistance in order to 

·	enforce a custodial or non custodial supervision order (for example to ensure the person takes medication); and 
·	take a person into custody or restrain a supervised person to prevent the supervised person from self harming or harming someone else.

New subsection 43ZA(2B) requires the CEO (Health) to make supervision directions by Gazette notice. The directions must cover an authorised person’s qualifications and the oversight and reporting mechanisms of any such use of reasonable force or assistance.  The supervision directions may also cover any other matter relating to the use of reasonable force.

New subsection 43ZA(2C) makes it clear that any use of reasonable force must be in accordance with supervision directions approved by the CEO (Health).

Clause 8(3) follows the naming convention in clause 3 of the Bill.

Clause 9.		Section 43ZB amended

This clause follows the naming convention in clause 3 of the Bill.

Clause 10.	Section 43ZD amended

Clause 10(1) is minor amendment of a statute law revision nature.

New subsection 43ZD(3A) gives the court the power to adjourn a hearing for an application to vary or revoke a supervision order if the court considers it appropriate to do so. 

New subsection 43ZD(3B) also allows the court to make interim orders which can include an order that the supervised person be remanded into custody in a place that the court considers appropriate.  New subsection 43ZD(3C) also makes it clear that custody in prison under an interim supervision order is to be the option of last resort.

New subsection 43ZD(3D) makes it clear that the making of an interim order, such as remanding into custody, does not revoke the current supervision order which continues to have effect unless the court otherwise directs.
 
Clause 10(3) is a minor amendment of a statute law revision nature.

Clause 11.	Section 43ZE amended

New subsection 43ZE(3A) gives the court the power to adjourn a hearing for an urgent application to vary a non custodial supervision order if the court considers it appropriate to do so. 

New subsection 43ZE(3B) also allows the court to make interim orders which can include an order that the supervised person be remanded into custody in a place that the court considers appropriate. Subsection 43ZE(3C) also makes it clear that custody in prison under an interim supervision order is to be the option of last resort.

New subsection 43ZE(3D) makes it clear that the making of an interim order, such as remanding into custody, does not revoke the current supervision order which continues to have effect unless the court otherwise directs.  

Clause 11(2) is a minor amendment of a statute law revision nature.

Clause 12.	Section 43ZG amended

Clause 12(1) makes a minor amendment of a statute law revision nature.

New subsection 43ZG(4A) resolves an ambiguity in the legislation arising out of the dual use of the word ‘supervision’ in subsections 43ZG (1) and (2). The new subsection clarifies that the word ‘supervision’ in subsection 43ZG(2) refers to a sentencing disposition that involves custody or other supervision of a court upon the finding of guilt of a person.  It does not refer to a fine that may be imposed. 

New subsection 43ZG(4B) allows the court to backdate a supervision order to a time that is earlier than the date the court makes the supervision order, and that can be the date the supervised person was first taken into custody.

New subsections 43ZG(5A) gives the court the power to adjourn a major review beyond the end of a term that is fixed under subsection 43ZG(1), if the court considers it appropriate to do so. Under new subsection 43ZG(5B), the court may also make interim orders for the supervised person to be remanded into custody or in a place that the court considers appropriate. Subsection 43ZG(5C) makes it clear that custody in prison under an interim supervision order is to be the option of last resort.

Subsection 43ZG(5B) also makes it clear that the supervision order continues to have effect until the completion of the review, unless the court otherwise directs.

Clause 12(4) makes a minor amendment of a statute law revision nature.

Clause 13.	Section 43ZK amended 

This clause resolves an ambiguity in the legislation, and makes it clear that a supervision order cannot expire, it can only be revoked.

Clause 14.	Section 43ZLA amended

This clause makes it clear that the principles in sections 43ZM and 43ZN(1) will apply to interim orders (such as remanding a supervised person in custody) made after a person is declared liable to supervision under sections 43ZD, ZE and ZG as amended by this Bill.

Clause 14(2) makes a minor amendment of a statute law revision nature.

Clause 15.	section 43ZN amended

This clause makes it clear that the principles in s43ZN(1)(a) and (1)(f) apply to orders made in respect of accused persons (who may, in the future, be the subject of a supervision order) as well as supervised persons. Presently, subsections 43ZA(1)(a) and (f) only refer to supervised persons, but it is clear that the principles apply to certain orders relating to accused persons as defined in section 43ZLA.   

Clause 16.	Section 43ZO amended

This clause allows a legal representative of an accused person or a supervised person to use their discretion in all proceedings under Part IIA, rather than solely in relation to an investigation or special hearing in respect of an accused person. 

Clause 17.		Section 43ZPA inserted

New section 43ZPA is an indemnity provision that provides for the protection of an authorised person who exercises reasonable force under new subsection 43ZA(2A), who acts in good faith while exercising a power or performing a function under the Act, that is, the Criminal Code.  This indemnity provision does not affect the liability the Territory would have for the act or omission. 

This ‘Act’ is defined in the Interpretation Act (NT) as including any subordinate legislation made under the principal Act.

New subsection 43ZPA(3) provides that ‘exercise of a power’ includes the purported exercise of the power, and ‘performance of a function’ includes the purported performance of the function. 

Clause 18.		Part XIII inserted 

New section 446 is a transitional provision that will make the amendments to sections 43ZD, 43ZE and 43ZG retrospective so they can apply to applications or review proceedings relating to a supervision order that have already commenced but have not been completed. 

The new section also makes the amendments to section 43ZO retrospective so that they apply to any proceedings that have already started but have not been completed.

Clause 18(3) defines ‘amending Act’ and ‘commencement’. Amending Act means the Criminal Code Amendment (Mental Impairment and Other Matters) Act 2010. Commencement means the commencement of the amending Act.