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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-11-17 Daily Xml
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Community Based Sentences (Interstate Transfer) Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Aboriginal Affairs and Reconciliation) (18:31): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

Introduction

The Community Based Sentences (Interstate Transfer) Bill 2015 provides for South Australia's participation in a scheme for the formal transfer and enforcement of community based sentences between Australian jurisdictions. Community based sentences are sentences that are served within the community, and can be supervised and administered in the local jurisdiction.

There are many reasons why offenders may wish to transfer to a new jurisdiction. Notable reasons may be proximity to improved family and community support, to escape domestic violence, or the prospect of increased choice of employment or study opportunities. Allowing a transfer to a new area in which the offender has good support increases the probability of the offender fulfilling the order, being positively re-integrated back into the community, and desisting from further offending.

A community based sentence is a sentence that is handed down by the Court that is a penalty other than imprisonment. Community based sentences include, but are not limited to, a South Australian Bond with Supervision handed down under the Criminal Law (Sentencing) Act 1988, or a South Australian Bond With Supervision (Suspended Sentence).

All community based sentences, such as Suspended Sentences and Bonds with Supervision issued in this State have a mandatory condition that the offender not leave the State of South Australia during the period of the Order.

There is currently national model legislation in place in all jurisdictions to enable the interstate transfer of prisoners, which in South Australia is the Prisoners (Interstate Transfer) Act 1982 (SA). There is also National model legislation in place in all jurisdictions to enable the interstate transfer of Parole Orders, which in South Australia is the Parole Orders (Transfer) Act 1983 (SA), both of these schemes operate extremely well.

National model legislation to enable the interstate transfer of other community based sentences such as Supervised Bonds has been discussed nationally for many years and is a regular item on the agenda of the Corrective Services Administrators' Council.

The model legislation was consulted and subsequently endorsed by the Corrective Services Administrators' Council and the Corrective Services Ministers' Conference. The Corrective Services Ministers' Conference at that time, resolved to submit the model legislation to the Standing Committee of Attorneys-General, now known as the Council on Law, Crime and Community Safety. The legislation was subsequently endorsed by all Ministers in 2010 and Attorneys-General in 2011.

The overall aim is to have national legislation in place in all States and Territories to enable the transfer of community based sentences (other than parole) in and out of Australian jurisdictions.

Bill in Detail

I move now to the detail of the Bill. The provisions in the Bill will apply only to community based sentences imposed on adults. Under the formal arrangements created by the Bill, an offender with a community-based sentence in South Australia will be able to transfer the supervision and administration of the sentence to a new jurisdiction on a voluntary basis, provided certain requirements are satisfied. The offender will then be managed in the new jurisdiction as though a court of the new jurisdiction had imposed the sentence, except for the purposes of appeal or review, which will remain the responsibility of the originating jurisdiction.

The formal arrangements will operate in much the same way as those established by the Prisoners (Interstate Transfer) Act 1982 (SA) and related interstate legislation.

It is acknowledged that community based sentences vary markedly across jurisdictions. In this regard, it has been agreed that some orders will simply not correspond, or 'substantially correspond', to that in a receiving jurisdiction. It is likely that in these cases, transfer simply may not be possible. It is anticipated that decisions about correspondence will be made via direct liaison between Corrective Services Departments in each jurisdiction.

The legislation also has provisions for Orders having multiple components (as is often the case in South Australia) providing that some components will need to be completed in the sending jurisdiction prior to any transfer taking place such as reparation to the community against which they offended (community service components) and fines.

Interstate authorities that administer corresponding legislation will have a designated local authority for that jurisdiction. Having one local authority for each jurisdiction will ensure that there is a single communication point between an offender and the supervising authority, establishing clear communication procedures and practices. The Bill provides that the local authority for South Australia is to be the Chief Executive of the Department for Correctional Services. Details of the transferred sentences will be recorded and maintained on a register.

The local authority will make decisions on the basis of information sent by the relevant interstate authority regarding the offender and sentence, provided specific criteria are satisfied. The criteria that the local authority will apply when deciding whether to accept a request for transfer are that the offender has consented to the order and has not withdrawn that consent; there is a sentence in South Australia that corresponds to the sentence imposed in the interstate jurisdiction; the offender can comply with the sentence in South Australia; and the sentence can be safely, efficiently, and effectively administered in South Australia. The local authority will be able to refuse a request for transfer if the criteria are not met, or otherwise at the local authority's discretion. This will be particularly relevant in a case when the local authority becomes aware of concerns expressed by an individual for his or her safety if the offender were to reside in South Australia. Discretion may also be exercised in a case when an offender poses an unacceptable administrative burden to South Australia because the offender has a history of not complying with directions issued by a supervising officer.

If deciding to accept a request for transfer, the local authority may choose to register the sentence, decline to register the sentence or require the offender to meet certain preconditions before registering the sentence. Imposing preconditions provides a means for the local authority to confirm the offender's ability and willingness to comply with the sentence in South Australia before registration and formal transfer occurs. A precondition may include the offender satisfying the local authority before a stated time that the offender is living in South Australia, or that the offender is reporting to a stated person in South Australia at a stated time and place. If the local authority decides to accept the request for transfer and registers the sentence, the offender will be supervised and administered by the Department for Correctional Services, as though the sentence had been imposed in South Australia.

The administration of a sentence includes managing a breach of the sentence. Therefore, if the offender does not comply with the conditions of a transfer order, he or she may be re-sentenced by a South Australian court according to the laws of this state, in which the offence was committed. The South Australian court may, however, refer to the penalty range and type that would have been applicable in the original jurisdiction, so as to ensure that the transfer does not serve to avoid the sentencing intentions of the original jurisdiction.

Registration of the sentence does not affect an offender's right to seek an appeal or review of the conviction or finding of guilt, or the imposition of a sentence, in the original jurisdiction. As a matter of practicality, if the offender seeks an appeal or amendment of the conviction or sentence, or the sentence relating to the conviction, the appeal will be made in the original jurisdiction and not to a South Australian court, even though South Australia is the jurisdiction supervising and administering the transferred sentence. In the case that an appeal or request for amendment of sentence is successful, the amended sentence will be administered and supervised in South Australia as though a South Australian court had upheld the appeal or made the amendment. It would be contrary to natural justice to prevent an offender from seeking an appeal or review of their conviction or sentence by virtue of registration in a jurisdiction other than the original jurisdiction.

Conclusion

The involvement of South Australia in the scheme highlights the contribution this State is making to the corrective services framework nationally by the framing of a cohesive national approach to corrective services provision and enforcement.

Allowing an offender to transfer to a new area in which the offender has good support or opportunities increases the probability of the offender fulfilling the order, being positively reintegrated back into the community, and being diverted from returning to the prison system.

The Government encourages the early passage of the Bill to ensure the prompt and efficient implementation of the formal arrangements in South Australia.

I commend this Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause provides the short title as the Community Based Sentences (Interstate Transfer) Act 2015.

2—Commencement

Commencement will be on a day fixed by proclamation.

3—Interpretation

This clause provides definitions for the purposes of the measure. Importantly, a community based sentence to which the measure applies is defined as meaning—

(a) a sentence of community service imposed under the Criminal Law (Sentencing) Act 1988; or

(b) a sentence of imprisonment suspended on condition that the defendant enter into a bond under section 38 of the Criminal Law (Sentencing) Act 1988; or

(c) a bond to be of good behaviour imposed under section 39 of the Criminal Law (Sentencing) Act 1988; or

(d) in relation to an interstate jurisdiction—a sentence that is a community based sentence under the corresponding law of the jurisdiction; or

(e) a prescribed sentence.

For the purposes of determining which States and Territories are included in the scheme, a participating jurisdiction means South Australia or a State or Territory of the Commonwealth prescribed by the regulations to be a participating jurisdiction.

4—Application of Act

This clause provides that the measure does not apply to the following:

(a) a sentence imposed by a court in this State, another State or a Territory, on a person who was not an adult at the time he or she committed the offence in relation to which the sentence was imposed; or

(b) a sentence in relation to which a prisoner has been released from prison to serve a period of home detention under Part 4 Division 6A of the Correctional Services Act 1982; or

(c) a parole order within the meaning of the Parole Orders (Transfer) Act 1983; or

(d) a sentence of a kind prescribed by regulation for the purposes of this section.

Part 2—Administration

5—Local authority

This clause provides that the local authority for this jurisdiction is the Chief Executive of the Department (being the administrative unit of the Public Service that is responsible for assisting a Minister in the administration of the measure).

6—Delegation

This clause provides for the delegation by the local authority of a function or power of the local authority provided under the measure.

7—Local register

This clause requires the local authority to establish and maintain a register (the local register) of interstate sentences registered under the measure.

Part 3—Registration of interstate sentences in this jurisdiction

8—Request for transfer of interstate sentence

This clause provides that the local authority may, in accordance with Part 3, register an interstate sentence in this jurisdiction at the request of the interstate authority for the interstate jurisdiction in which the sentence is in force.

9—Form of request for registration

This clause provides requirements as to the content and form of a request of an interstate authority under clause 8 including specific information and documentation which must accompany a request as follows:

(a) a copy of the interstate sentence certified by the interstate authority;

(b) a copy of the offender's consent for the registration of the sentence in this jurisdiction;

(c) a copy of any relevant pre-sentence report about the offender held by the interstate jurisdiction in relation to any offence committed by the offender for which the offender is subject to a sentence;

(d) a copy of any relevant psychological or other assessment of the offender held by the interstate authority;

(e) details of—

(i) the offender's criminal record (whether in or outside Australia); and

(ii) the offender's compliance with the interstate sentence and any other relevant non-custodial sentence;

(f) a statement by the interstate authority explaining what part of the sentence has been served in the interstate jurisdiction or any other interstate jurisdiction before the making of the request;

(g) a statement by the interstate authority that the authority has explained to the offender, in language likely to be readily understood by the offender, that, if the sentence is registered in this jurisdiction—

(i) the offender will be bound by the requirements of the law of this jurisdiction in relation to the sentence; and

(ii) a breach of the sentence may result in the offender being re-sentenced in this jurisdiction for the offence; and

(iii) the other consequences for a breach of the sentence in this jurisdiction may be different from the consequences for a breach of the sentence in the interstate jurisdiction, and that, in particular, the penalties for breach of the sentence may be different;

(h) a statement by the interstate authority that sets out the reasons given by the offender for requesting to register the interstate sentence in this jurisdiction;

(i) any other document reasonably required by the local authority.

10—Request for additional information

This clause provides that the local authority may request additional information from an interstate authority about an interstate sentence or an offender the subject of a request under clause 8.

11—Withdrawal of offender's consent

This clause provides that an offender who has consented to the registration of an interstate sentence in this jurisdiction may withdraw his or her consent at any time before (but not after) the registration of the sentence by giving written notice to the local authority.

12—Registration criteria

This clause provides the registration criteria for the purposes of determining a request for registration. The registration criteria are as follows:

(a) the offender has consented to the interstate sentence being registered in this jurisdiction and has not withdrawn that consent; and

(b) there is a corresponding community based sentence under the law of this jurisdiction; and

(c) the offender is capable of complying with the sentence in this jurisdiction; and

(d) the sentence is capable of being safely, efficiently and effectively administered in this jurisdiction.

13—Decision on request

This clause provides for a decision to be made on request under clause 8 such that the local authority may register the interstate sentence in this jurisdiction (with or without preconditions under clause 14) or may decline to register the sentence. In deciding whether to register an interstate sentence, the local authority must have regard to the registration criteria and may have regard to any matter prescribed by the regulations or any other relevant matter. The local authority may decline to register an interstate sentence even if satisfied the registration criteria are met and must not register an interstate sentence unless satisfied that the registration criteria are met.

14—Preconditions for registration

This clause provides that the local authority may impose preconditions for the registration of an interstate sentence that the offender must meet to show that the offender is capable of complying, and is willing to comply, with the sentence in this jurisdiction. Such preconditions may be that the offender must satisfy the local authority, before a specified time, that the offender is living in this jurisdiction or that the offender must report to a specified person in this jurisdiction at a specified time and place. The local authority must give written notice of the decision and the precondition to the offender and the interstate authority.

15—How interstate sentence is registered

If the local authority decides to register an interstate sentence in this jurisdiction for the registration of the sentence, the local authority must register the sentence by entering the required details in the local register. If preconditions have been imposed then the details must not be entered into the register unless the authority is satisfied that the precondition has been met. Required details are the details of the offender and the interstate sentence prescribed by the regulations.

16—Notice of registration

This clause provides that the local authority must give written notice of the registration of a sentence in this jurisdiction to the offender and the interstate authority which must include the date the sentence was registered.

17—Effect of registration generally

This clause provides that, if an interstate sentence is registered in this jurisdiction, the following provisions apply:

(a) the sentence becomes a community based sentence in force in this jurisdiction, and ceases to be a community based sentence in force in the interstate jurisdiction;

(b) the sentence is taken to have been validly imposed by the appropriate court of this jurisdiction;

(c) the sentence continues to apply to the offender in accordance with its terms despite anything to the contrary under the law of this jurisdiction;

(d) the offence for which the sentence was imposed on the offender (the relevant offence) is taken to be an offence against the law of this jurisdiction, and not an offence against the law of the originating jurisdiction;

(e) the penalty for the relevant offence is taken to be the relevant penalty for the offence under the law of the originating jurisdiction, and not the penalty for an offence of that kind (if any) under the law of this jurisdiction;

(f) any part of the sentence served in an interstate jurisdiction before its registration is taken to have been served in this jurisdiction;

(g) the offender may be dealt with in this jurisdiction for a breach of the sentence, whether the breach happened before, or happens after, the registration of the sentence;

(h) the law of this jurisdiction applies to the sentence and any breach of it with the changes (if any) prescribed by the regulations.

This clause does not affect any right, in the originating jurisdiction, of appeal or review (however described) in relation to the conviction or finding of guilt on which the interstate sentence was based or the imposition of the interstate sentence.

This clause does not apply to an interstate sentence to the extent to which—

(a) it imposes a fine or other financial penalty (however described); or

(b) it requires the making of reparation (however described).

Part 4—Registration of local sentences in interstate jurisdictions

18—Request for transfer of local sentence

This clause provides that the local authority may request the interstate authority for an interstate jurisdiction to register a local sentence in the interstate jurisdiction.

19—Response to request for additional information

This clause provides that the local authority may, at the request of an interstate authority or on its own initiative, give the interstate authority any additional relevant information about a local sentence or offender in relation to whom a request has been made under clause 18.

20—Effect of interstate registration

This clause provides that if a local sentence is registered in an interstate jurisdiction, the following provisions have effect:

(a) the sentence becomes a community based sentence in force in the interstate jurisdiction, and ceases to be a community based sentence in force in this jurisdiction;

(b) the offender may be dealt with in the interstate jurisdiction for a breach of the sentence, whether the breach happened before, or happens after, the registration of the sentence;

(c) if the sentence is registered in the local register—the sentence ceases to be so registered;

(d) proceedings against the offender may not be commenced or continued under the law of this jurisdiction in relation to any breach of the conditions attached to the sentence that occurred before it was registered in the interstate jurisdiction.

If this jurisdiction is the originating jurisdiction for a local sentence registered in an interstate jurisdiction, this clause does not affect any right of appeal or review (however described) within this jurisdiction in relation to the conviction or finding of guilt on which the sentence was based or the imposition of the sentence.

If this jurisdiction is the originating jurisdiction for the local sentence registered in an interstate jurisdiction, this clause does not affect the sentence to the extent to which it imposes a fine or other financial penalty (however described) or it requires the making of reparation (however described) and, to that extent, the sentence remains a sentence in force in this jurisdiction and may be enforced accordingly.

Part 5—Miscellaneous

21—Inaccurate information about local sentence registered interstate

This clause provides for an obligation on the local authority, where the local authority is aware that information about a sentence or an offender recorded in the register kept under the corresponding law of the interstate jurisdiction is not, or is no longer, accurate, to advise the interstate authority of that inaccuracy and how the information in the interstate register needs to be changed to be accurate.

22—Dispute about accuracy of information in interstate register

This clause provides that an offender who is registered in an interstate register after transfer from this jurisdiction may claim inaccuracy in information recorded about the sentence or the offender in the interstate register. If an offender makes a claim under this clause the interstate authority may send the local authority a copy of the claim and an extract from the interstate register containing the information that the offender claims is inaccurate. On receipt of a claim and extract under this clause, the local authority must check whether the information in the extract is accurate, having regard to the offender's claims and must inform the interstate authority if the information is accurate and, if it is not, must provide to the interstate authority the correct information.

23—Evidence of registration and registered particulars

This clause provides that a certificate that appears to be signed by or on behalf of the local authority or the interstate authority for an interstate jurisdiction, and states any of the following matters, is evidence of the matter:

(a) matter that appears in or can be ascertained from the register kept under the measure or a corresponding law;

(b) details of a community based sentence or the offender in relation to a community based sentence;

(c) details of any part of a community based sentence that has or has not been served;

(d) any matter prescribed by the regulations.

A court must accept a certificate mentioned in this clause as proof of the matters stated in it if there is no evidence to the contrary.

24—Regulations

This clause provides that the Governor may make regulations, not inconsistent with the measure, for or with respect to any matter that by this measure is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to the measure.

Debate adjourned on motion of Hon. J.S.L. Dawkins.

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