Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Act 2019 (ACT)
Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Act 2019
A2019-31
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Legislation amended 2
Part 2Bail Act 1992
4 Entitlement to bail—breach of sentence obligationsNew section 8A (1) (aa) 3
Part 3Births, Deaths and Marriages Registration Act 1997
5 Definitions—div 3.2Section 22A, definition of restricted person, paragraph (a) 4
Part 4Corrections Management Act 2007
6 When test sample positiveSection 133 (1) 5
7 Section 133 (1) (d) 5
8 Section 133 (5), new definition of drug and alcohol treatment order 5
Part 5Crimes (Sentence Administration) Act 2005
9 New chapter 5A 6
10 Meaning of community-based sentenceNew section 264 (1) (a) (ia) 9
11 Dictionary, new definition of drug and alcohol treatment order 9
Part 6Crimes (Sentencing) Act 2005
12 Meaning of offenderSection 8, definition of offender, paragraph (b) 10
13 New section 8 (2) 10
14 Suspended sentencesNew section 12 (7) 10
15 New section 12A 11
16 Section 22 14
17 Non-association and place restriction orders—maximum periodSection 24 (1) (a) (i) 15
18 New part 4.2B 15
19 Application—pt 5.2Section 64 (2), definition of excluded sentence of imprisonment, new paragraph (aa) 19
20 New part 5.4A 20
21 Dictionary, definition of assessor, new paragraph (c) 47
22 Dictionary, new definition of core conditions 47
23 Dictionary, definition of court 47
24 Dictionary, new definitions 48
Part 7Supreme Court Act 1933
25 Exercise of jurisdiction by associate judgeNew section 9 (1) (c) 49
26 New part 2AA 49
27 Dictionary, new definitions 51
Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Act 2019
A2019-31
An Act to amend legislation about sentencing, and for other purposes
The Legislative Assembly for the Australian Capital Territory enacts as follows:
Part 1Preliminary
Name of Act
This Act is the Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Act 2019.
Commencement
(1)This Act commences on a day fixed by the Minister by written notice.
Note 1The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).
Note 2A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).
(2)If this Act has not commenced within 12 months beginning on its notification day, it automatically commences on the first day after that period.
(3)The Legislation Act, section 79 (Automatic commencement of postponed law) does not apply to this Act.
Legislation amended
This Act amends the following legislation:
· Bail Act 1992
· Births, Deaths and Marriages Registration Act 1997
· Corrections Management Act 2007
· Crimes (Sentence Administration) Act 2005
· Crimes (Sentencing) Act 2005
· Supreme Court Act 1933.
Part 2Bail Act 1992
Entitlement to bail—breach of sentence obligations
New section 8A (1) (aa)insert
(aa)a treatment order obligation under the Crimes (Sentencing) Act 2005; or
Part 3Births, Deaths and Marriages Registration Act 1997
Definitions—div 3.2
Section 22A, definition of restricted person, paragraph (a)after
intensive correction order
insert
, drug and alcohol treatment order
Part 4Corrections Management Act 2007
When test sample positive
Section 133 (1)omit
when directed under this Act or the Crimes (Sentence Administration) Act 2005
substitute
when directed under this Act, the Crimes (Sentence Administration) Act 2005 or the Crimes (Sentencing) Act 2005
Section 133 (1) (d)
omit
for a person serving a term of imprisonment by intensive correction—
substitute
for a person serving a term of imprisonment by intensive correction, or suspended under a drug and alcohol treatment order—
Section 133 (5), new definition of drug and alcohol treatment order
insert
drug and alcohol treatment order—see the Crimes (Sentencing) Act 2005, section 12A.
Part 5Crimes (Sentence Administration) Act 2005
New chapter 5A
insert
Chapter 5ADrug and alcohol treatment orders
Part 5A.1Preliminary
Application—ch 5A
This chapter applies if the Supreme Court makes a drug and alcohol treatment order in relation to an offender.
Part 5A.2Drug and alcohol treatment orders—undertaking treatment
82ADrug and alcohol treatment order—drug and alcohol tests
(1)The responsible director-general may direct an offender, orally or in writing, to give a test sample during the term of the offender’s drug and alcohol treatment order.
(2)The provisions of the Corrections Management Act 2007 relating to alcohol and drug tests apply in relation to a direction under this section and any sample given under the direction.
(3)In this section:
health director-general—see the Crimes (Sentencing) Act 2005, dictionary.
responsible director-general means 1 or both of the following:
(a)the health director-general;
(b)the director-general responsible for this Act.
Part 5A.3Drug and alcohol treatment orders—effect of cancellation
82BApplication—pt 5A.3
This part applies to a decision made by the Supreme Court under the following provisions of the Crimes (Sentencing) Act 2005:
(a)section 80ZB (1) (e) provisionally cancelling the suspension of a sentence under a treatment order;
(b)section 80ZB (1) (f), section 80ZD (2) (d) (i) or section 80ZE (2) (a) cancelling the treatment order;
(c)section 80ZB (1) (g), section 80ZD (2) (d) (ii) or section 80ZE (2) (b) cancelling the treatment order and resentencing the offender.
82CDrug and alcohol treatment order—effect of cancellation
(1)This section applies to a decision of the court to suspend or cancel the offender’s drug and alcohol treatment order.
(2)The decision takes effect as stated in the court order suspending or cancelling the drug and alcohol treatment order.
(3)If the decision is to suspend the offender’s drug and alcohol treatment order, the offender—
(a)must be imprisoned under full-time detention during the suspension; and
(b)is taken to comply with the offender’s treatment order obligations while serving the full-time detention.
(4)If the decision is to cancel the offender’s drug and alcohol treatment order, the cancellation ends the drug and alcohol treatment order and the offender must serve the remainder of the sentence of imprisonment—
(a)by full-time detention until when the sentence of imprisonment suspended under the drug and alcohol treatment order would have ended apart from the cancellation; or
(b)if the court orders otherwise—in accordance with the court’s order.
Part 5A.4Drug and alcohol treatment orders—reporting and records
82DRecord-keeping by director-general
The director-general must keep data of—
(a)each drug and alcohol treatment order made in relation to an offender; and
(b)the offence for which each treatment order is made; and
(c)each treatment order that is cancelled, suspended or discharged including the reasons for the cancellation, suspension or discharge.
82EAuthorised person may access data
The director-general—
(a)may authorise a person, in writing, to have access to the data mentioned in section 82D for research, analysis and evaluation of drug and alcohol treatment orders; but
(b)must not allow access to the data in any form that would allow the identity of anyone who is the subject of a drug and alcohol treatment order to be worked out.
Meaning of community-based sentence
New section 264 (1) (a) (ia)insert
(ia)a drug and alcohol treatment order;
Dictionary, new definition of drug and alcohol treatment order
insert
drug and alcohol treatment order—see the Crimes (Sentencing) Act 2005, section 12A.
Part 6Crimes (Sentencing) Act 2005
Meaning of offender
Section 8, definition of offender, paragraph (b)substitute
(b)for—
(i)part 4.2 (Pre-sentence reports)—see section 40; and
(ii)part 4.2A (Intensive correction assessments)—see section 46B; and
(iii)a treatment order provision—see section 46I.
New section 8 (2)
insert
(2)In this section:
treatment order provision means the following:
(a)section 12A (Drug and alcohol treatment orders);
(b)part 4.2B (Drug and alcohol treatment assessments);
(c)part 5.4A (Drug and alcohol treatment orders).
Suspended sentences
New section 12 (7)insert
(7)To avoid doubt, a sentence of imprisonment suspended under the custodial part of a drug and alcohol treatment order is not a suspended sentence order.
New section 12A
in part 3.2, insert
12ADrug and alcohol treatment orders
(1)This section applies if—
(a)an offender pleads guilty to an eligible offence; and
NoteA reference to an offender in this section does not include a young offender (see s 8 (b)).
(b)the Supreme Court convicts the offender of the offence and imposes a sentence of imprisonment of at least 1 year but not more than 4 years; and
(c)the offender is not subject to a sentencing order for another offence.
(2)The court may make an order (a drug and alcohol treatment order) that fully suspends a sentence of imprisonment for an eligible offence on condition that the offender agrees to complete a treatment program, but only if—
(a)the court is satisfied on the balance of probabilities that—
(i)the offender is dependent on alcohol or a controlled drug; and
(ii)the offender’s dependency substantially contributed to the commission of the offence; and
(iii)the offender will live in the ACT for the term of the sentence except as directed by the court; and
(b)the court considers the order appropriate, taking into account—
(i)the relevant sentencing considerations applying to the offender; and
(ii)any information given to the court relating to the concerns of a victim about the victim’s safety or welfare; and
(iii)the matters set out under section 80O; and
NoteSection 80O sets out the object of a drug and alcohol treatment order.
(c)the offender gives informed consent to the order being made after the offender is given—
(i)a clear explanation of the treatment order that contains sufficient information to enable the offender to make a balanced judgement about whether or not to consent to serve the sentence under the order; and
(ii)an opportunity to ask any questions about the order, and those questions have been answered and the offender appears to have understood the answers.
(3)If the court makes a treatment order for an offence (the primary offence), the court may extend the order to an associated offence, but only if the total period of imprisonment liable to be served under any consecutive sentences imposed for all offences to which the order relates, is not more than 4 years.
(4)To remove any doubt––
(a)if the court extends a treatment order to an associated offence, the offender must not be subject to more than 1 treatment order for all offences at any particular time; and
(b)an associated offence to which the court extends a treatment order may be an offence for which the court imposes a sentence of imprisonment of less than 1 year; and
(c)sentences for multiple offences may be served concurrently or consecutively (or partly concurrently and partly consecutively), subject to subsection (3).
NoteWords in the singular number include the plural (see Legislation Act, s 145 (b)).
(5)The court must not impose a lesser sentence of imprisonment on the offender than the circumstances of the offence would ordinarily require only to allow the court to make a treatment order.
(6)If the court makes a treatment order, the court must, as soon as practicable after the order is made, ensure that written notice of the order, together with a copy of the order, is given to the offender.
(7)Failure to comply with subsection (6) does not invalidate the treatment order.
(8)This section is subject to part 5.4A (Drug and alcohol treatment orders).
NoteA treatment order may not be made in relation to an offender who is under 18 years old (see s 46I).
(9)In this section:
associated offence, for an extended treatment order, means an eligible offence—
(a)to which the offender pleads guilty; and
(b)for which the offender is sentenced to imprisonment; and
(c)dealt with in the same sentencing proceeding as the primary offence.
eligible offence means an offence that is not—
(a)a serious violence offence; or
(b)a sexual offence.
sentencing order means any of the following:
(a)an order for imprisonment by full-time detention;
(b)a suspended sentence order;
(c)an intensive correction order;
(d)a deferred sentence order;
(e)a parole order;
(f)an order under a law in force in Australia that corresponds to an order mentioned in paragraphs (a) to (e).
serious violence offence means an offence against any of the following provisions of the Crimes Act 1900:
(a)section 12 (Murder);
(b)section 15 (Manslaughter);
(c)section 19 (Intentionally inflicting grievous bodily harm);
(d)section 20 (Recklessly inflicting grievous bodily harm).
sexual offence means an offence against the Crimes Act 1900, part 3.
Section 22
substitute
Application—pt 3.4
This part applies if a court makes any of the following orders for an offender in relation to an offence:
(a)an intensive correction order;
(b)a drug and alcohol treatment order;
(c)a good behaviour order.
Non-association and place restriction orders—maximum period
Section 24 (1) (a) (i)after
intensive correction order
insert
or a drug and alcohol treatment order
New part 4.2B
insert
Part 4.2BDrug and alcohol treatment assessments
46HMeaning of assessor—pt 4.2B
In this part:
assessor means—
(a)a public servant whose functions include preparing drug and alcohol treatment assessments; or
(b)a person with similar functions under the law of a State.
NoteState includes the Northern Territory (see Legislation Act, dict, pt 1).
46IApplication—pt 4.2B
(1)This part applies if—
(a)either of the following applies to a person who is an adult (the offender):
(i)the offender pleads guilty to an offence;
(ii)the offender indicates to the court an intention to plead guilty to an offence; and
(b)the offence is an eligible offence.
(2)In this section:
eligible offence—see section 12A (9).
46JDrug and alcohol treatment assessments—order
(1)This section applies if the court is considering whether to make a drug and alcohol treatment order for an offender.
(2)The court may—
(a)order an assessment of the offender (a drug and alcohol treatment assessment); and
(b)adjourn the proceeding for the assessment to be prepared; and
(c)order the responsible director-general to provide a copy of the assessment to the court or any other person.
(3)However, the court must order the responsible director-general to prepare the drug and alcohol treatment assessment before making a drug and alcohol treatment order.
(4)The responsible director-general must arrange for an assessor to prepare a drug and alcohol treatment assessment ordered by the court.
(5)The drug and alcohol treatment assessment must address the matters mentioned in section 46K.
(6)In this section:
responsible director-general means 1 or both of the following:
(a)the health director-general;
(b)the director-general responsible for this Act.
46KDrug and alcohol treatment assessments—drug and alcohol treatment assessment matters
For section 46J (5), the matters for assessing the offender’s suitability to comply with a drug and alcohol treatment order are the matters mentioned in table 46K, column 2.
Table 46KAssessment of suitability—drug and alcohol treatment order
| column 1 item | column 2 matter | column 3 indication of unsuitability |
| 1 | degree of dependence on alcohol or a controlled drug | major problem with alcohol or a controlled drug unlikely to change under drug and alcohol treatment order |
| 2 | psychiatric or psychological condition | major psychiatric or psychological disorder likely to prevent compliance with a drug and alcohol treatment order |
| 3 | medical condition | medical condition likely to prevent compliance with a drug and alcohol treatment order |
| 4 | criminal record and response to previous court orders | serious criminal record or substantial noncompliance with previous court orders |
| 5 | employment and personal circumstances | potential impracticability of compliance with a drug and alcohol treatment order |
| 6 | participation and degree of compliance with drug and alcohol treatment assessment | substantial noncompliance with assessment |
| 7 | living circumstances of the offender | inability or refusal to live in ACT member of offender’s household does not consent to living with the offender while the offender is subject to a drug and alcohol treatment order |
46LDrug and alcohol treatment assessments—powers of assessors
(1)In preparing the drug and alcohol treatment assessment for the offender, the assessor may—
(a)investigate any matter the assessor considers appropriate; and
(b)ask any of the following to provide information for the purpose of the assessment:
(i)an administrative unit;
(ii)a territory authority;
(iii)a statutory office-holder;
(iv)for an assessment for an offender to be sentenced for a family violence offence—an approved crisis support organisation under the Domestic Violence Agencies Act 1986;
(v)a victim of the offence;
(vi)any other entity.
(2)If an entity mentioned in subsection (1) (b) (i), (ii) or (iii) is asked to provide information, the entity must comply with the request as soon as practicable.
(3)If an entity gives information honestly and with reasonable care in response to a request under subsection (1), the giving of the information is not—
(a)a breach of confidence, professional etiquette, ethics or a rule of professional misconduct; or
(b)a ground for a civil proceeding for defamation, malicious prosecution or conspiracy.
(4)This section does not limit any other power of the assessor to obtain information for the purpose of the drug and alcohol treatment assessment.
(5)A regulation may make provision in relation to the preparation and provision of drug and alcohol treatment assessments.
(6)In this section:
information includes a document.
46MDrug and alcohol treatment assessments—provision to court
The drug and alcohol treatment assessment may be given to the court either orally or in writing.
46NDrug and alcohol treatment assessments—cross‑examination
(1)The prosecutor and the defence may cross-examine the assessor who prepared the drug and alcohol treatment assessment given to the court.
(2)In this section:
defence means—
(a)any lawyer representing an offender; or
(b)if the offender is not legally represented—the offender.
Application—pt 5.2
Section 64 (2), definition of excluded sentence of imprisonment, new paragraph (aa)insert
(aa)a sentence of imprisonment suspended under the custodial part of a drug and alcohol treatment order; or
New part 5.4A
insert
Part 5.4ADrug and alcohol treatment orders
Division 5.4A.1 Preliminary
80MDefinitions—pt 5.4A
In this part:
core conditions, of a treatment order—see section 80Y.
member means—
(a)in relation to the treatment and supervision team—an entity included in the team; and
(b)in relation to the treatment order team—an entity included in the team.
treatment and supervision team means the following entities:
(a)the court;
(b)the health director-general;
(c)the director-general responsible for this Act;
(d)an entity prescribed by regulation.
treatment order obligations, of an offender subject to a treatment order—see section 80P.
treatment order team means the following entities:
(a)the court;
(b)the director‑general;
(c)the health director‑general;
(d)the director of public prosecutions;
(e)the legal aid commission;
(f)the chief police officer;
(g)an entity the court considers necessary to include in the team for a particular treatment order;
(h)an entity prescribed by regulation.
Examples of entity for par (g)
1the director‑general responsible for the Housing Assistance Act 2007
2an Aboriginal and Torres Strait Islander representative
3an entity that administers or provides services in relation to drug and alcohol treatment assessments or treatment orders
4if the offender subject to a treatment order is legally represented other than as a result of a grant of legal aid—the lawyer representing the offender
treatment program conditions, of a treatment order—see section 80Z.
80NApplication—pt 5.4A
This part applies if the court is considering making, or makes, a treatment order for an offender.
80OObjects of drug and alcohol treatment orders
The objects of making a treatment order in relation to an offender is to—
(a)facilitate the rehabilitation of the offender by providing a judicially supervised, therapeutically oriented and integrated treatment regime; and
(b)reduce the offender’s dependency on alcohol or a controlled drug; and
(c)reduce the health risks associated with the offender’s dependency on alcohol or controlled drugs; and
(d)assist with the offender’s integration into the community; and
(e)promote community safety by reducing the level of criminal activity caused by alcohol or controlled drug dependence in offenders.
Division 5.4A.2 Drug and alcohol treatment orders—general
80PDrug and alcohol treatment orders—offender obligations
The obligations of an offender subject to a treatment order (the treatment order obligations) are to comply with—
(a)the core conditions and treatment program conditions of the order; and
(b)an obligation created by any other order made by the court in relation to the treatment order.
80QCourt may make ancillary orders to achieve object of treatment order
(1)The court may make any order that is not inconsistent with this Act or the Crimes (Sentence Administration) Act 2005, that the court considers appropriate to achieve the object of a treatment order.
(2)Without limiting subsection (1), the court may make an order—
(a)rewarding the offender in 1 or more of the following ways:
(i)decreasing how often the offender must undergo counselling, treatment or other supervision under the treatment order;
(ii)decreasing how often the offender must be tested for alcohol or drugs under the treatment order;
(iii)another way prescribed by regulation; or
(b)sanctioning the offender in 1 or more of the following ways:
(i)increasing how often the offender must undergo counselling, treatment or other supervision under the treatment order;
(ii)increasing how often the offender must be tested for alcohol or drugs under the treatment order;
(iii)another way prescribed by regulation.
Division 5.4A.3 Drug and alcohol treatment orders—eligibility and suitability
80RApplication—div 5.4A.3
This division applies if the court is considering whether to make a treatment order when sentencing an offender for an offence.
80SDrug and alcohol treatment orders—eligibility
The court must not make a treatment order for an offender unless satisfied that—
(a)a treatment order is suitable for the offender under section 80T; and
(b)it is appropriate for the offender to serve a sentence suspended in accordance with a treatment order; and
(c)appropriate arrangements for the administration of a treatment order are practicable.
NoteA treatment order may not be made for a young offender (see s 8 and s 12A)
80TDrug and alcohol treatment orders—suitability
(1)The court must not make a treatment order for an offender unless the court has considered—
(a)a pre-sentence report, if any, prepared for the offender in the proceeding; and
(b)a drug and alcohol treatment assessment for the offender.
NoteThe court cannot make a treatment order if the court sentences the offender to a term of imprisonment of less than 1 year or more than 4 years (see s 12A).
(2)In deciding whether to make a treatment order for the offender, the court must consider the following:
(a)any recommendations in the drug and alcohol treatment assessment;
(b)any medical report about the offender given to the court;
(c)any evidence given by an assessor who prepared the drug and alcohol treatment assessment;
(d)any evidence given, or submission made, by a member of the treatment order team about the offender.
(3)Subsection (2) does not limit the matters that the court may consider.
(4)In considering the drug and alcohol treatment assessment, the court must consider any indicators of unsuitability mentioned in table 46K, column 3 that are stated in the assessment to apply to the offender.
(5)The court may make, or decline to make, a treatment order for the offender despite—
(a)any recommendation in the drug and alcohol treatment assessment; or
(b)any evidence given by the person who prepared the drug and alcohol treatment assessment; or
(c)any evidence given, or submission made, by a member of the treatment order team.
(6)The court must record reasons for its decision to make, or decline to make, a treatment order for the offender if the drug and alcohol treatment assessment recommends that the offender—
(a)is suitable but the court decides not to make a treatment order for the offender; or
(b)is not suitable but the court decides to make a treatment order for the offender.
(7)Failure to comply with subsection (6) does not invalidate the treatment order.
80UCourt may remit proceeding
(1)This section applies if—
(a)the court declines to make a treatment order for a particular offender; and
(b)the offence for which the offender is to be sentenced could have been dealt with summarily by the Magistrates Court; and
(c)the offender was committed to the court only because the offender refused consent to the offence being dealt with summarily by the Magistrates Court.
(2)The offender or the director of public prosecutions may apply to the court for an order to remit the proceeding for the offence to the Magistrates Court.
(3)The court must make the order if it is satisfied that the offender refused consent to the offence being dealt with summarily for the purpose of seeking assessment for a treatment order.
(4)The court may otherwise make the order if it is satisfied the order is in the interests of justice.
(5)If the court makes an order under this section, the court must, as soon as practicable after the order is made, ensure that written notice of the order, together with a copy of the order, is given to—
(a)the offender; and
(b)any other person who the court considers should receive the notice.
(6)Failure to comply with subsection (5) does not invalidate the order.
Division 5.4A.4 Drug and alcohol treatment orders—content
80VContent of treatment orders
A treatment order must—
(a)state the offence to which the order relates; and
(b)record the offender’s conviction for the offence; and
(c)state the total period for which the order is in force; and
(d)include—
(i)a custodial part; and
(ii)a treatment and supervision part; and
(e)require the offender to sign an undertaking to comply with the order and any other obligations under the Crimes (Sentence Administration) Act 2005 for the period the order is in force.
NoteWords in the singular number include the plural (see Legislation Act, s 145 (b)).
Division 5.4A.5 Drug and alcohol treatment orders—custodial part
80WCustodial part of treatment orders
(1)A treatment order must include a part (the custodial part) that—
(a)imposes a sentence of imprisonment of at least 1 year but not more than 4 years; and
(b)fully suspends the sentence of imprisonment, unless the court under this part either provisionally cancels the suspension or cancels the treatment order.
(2)Despite section 65 (Nonparole periods—court to set), the court must not set a nonparole period for a sentence of imprisonment imposed on an offender under the custodial part of the treatment order.
(3)A sentence of imprisonment suspended under the custodial part is to be served by full-time detention at a correctional centre only if the court makes an order under this part cancelling the treatment order and imposing the sentence of imprisonment.
NoteThe court may cancel a treatment order and sentence an offender to full-time detention or decide to resentence an offender to a different sentence including full-time detention (see s 80ZB, s 80ZD and s 80ZE).
(4)If the court makes an order under this part cancelling the treatment order and imposing a sentence of imprisonment, the court—
(a)must state when the period of full-time detention starts and ends; and
(b)despite section 65, may set a nonparole period for the period of full-time detention if the period of full-time detention is more than 30 days.
(5)Part 5.2 (Imprisonment—nonparole periods) applies to a nonparole period set under paragraph (4) (b) as if the nonparole period had been set under that part.
NotePt 5.2 deals with setting and review of nonparole periods.
Division 5.4A.6 Drug and alcohol treatment orders—treatment and supervision part
80XTreatment and supervision part of treatment orders
(1)A treatment order must include a part (the treatment and supervision part) that imposes the order’s—
(a)core conditions; and
(b)treatment program conditions.
(2)The treatment and supervision part of a treatment order is in force for the period that—
(a)starts when the treatment order is made; and
(b)ends—
(i)on a day stated by the court; or
(ii)if the order is earlier cancelled by the court under this part—on the day the court cancels the order.
(3)However, the treatment and supervision part of a treatment order must not end later than the day the custodial part of the order ends.
80YCore conditions
(1)The core conditions, of a treatment order, while the treatment and supervision part of the order is in force, are that an offender subject to the order—
(a)must not commit another offence against a law in force in Australia or elsewhere; and
(b)if the offender is charged with an offence against a law in force in Australia or elsewhere—must tell the responsible director‑general about the charge as soon as possible, but within 2 days after the day the offender becomes aware of the charge; and
(c)must report to a member of the treatment and supervision team for the treatment order at the places and times directed by a member of the team; and
(d)must receive visits from a member of the treatment and supervision team for the treatment order at the times directed by a member of the team; and
(e)if the offender’s contact details change—must tell the responsible director-general about the change as soon as possible, but not later than 1 day after the day the offender becomes aware of the change of details; and
(f)must not—
(i)leave or stay outside the ACT without the permission of the court for a continuous period of more than 24 hours; and
(ii)if the court grants the offender permission to leave or stay outside the ACT—fail to comply with any condition of the court’s permission; and
(g)must—
(i)appear before the court at the times directed by the court; and
(ii)comply with the directions of the court; and
(h)must comply with any other reasonable direction of—
(i)a member of the treatment and supervision team for the order; or
(ii)a person prescribed by regulation.
(2)The court must not amend a condition mentioned in subsection (1).
(3)In this section:
contact details, of an offender, means the offender’s—
(a)home address or phone number; and
(b)work address or phone number; and
(c)mobile phone number.
positive, for a test sample—see the Corrections Management Act 2007, dictionary.
responsible director-general means 1 or both of the following:
(a)the health director-general;
(b)the director-general responsible for this Act.
80ZTreatment program conditions
(1)The treatment program conditions of a treatment order, while the treatment and supervision part of the order is in force, are that an offender subject to the order—
(a)must complete a program of treatment in relation to the alcohol or drug dependency of the offender (a treatment program); and
(b)must comply with any other condition imposed by the court as necessary to achieve the purpose of the treatment program.
(2)Without limiting subsection (1) (b), the court may impose 1 or more of the following conditions, requiring the offender to:
(a)submit to medical, psychiatric or psychological treatment that is relevant to the offender’s alcohol or drug dependency;
(b)submit to detoxification at a stated facility that is not a correctional centre;
(c)participate in counselling or programs for treatment relevant to—
(i)the offender’s alcohol or drug dependency; or
(ii)the offending behaviour of the offender;
(d)attend meetings with a stated person or class of person for the treatment order;
(e)participate in vocational, educational or employment programs or courses;
(f)submit to alcohol and drug testing;
(g)not return a positive test sample under alcohol and drug testing;
(h)wear a device that detects alcohol or drug usage by the offender;
(i)install a device or equipment at the offender’s home address;
(j)live at a stated place for a stated period.
80ZAGood behaviour order to apply after treatment and supervision part ends
If the treatment and supervision part of a treatment order ends before the end of the sentence of imprisonment suspended under the custodial part, the court must make a good behaviour order that—
(a)begins on the day after the treatment and supervision part ends; and
(b)ends on the day the custodial part ends.
Division 5.4A.7 Drug and alcohol treatment orders—breaches
80ZBBreach of treatment order—other than commission of offence
(1)If the court is satisfied on the balance of probabilities that an offender subject to a treatment order has breached a condition of the treatment order, other than by the commission of an offence, the court must make 1 or more of the following orders:
(a)confirming the treatment and supervision part of the order with no further action to be taken on the breach;
(b)give the offender a warning about the need to comply with the offender’s treatment order obligations;
(c)amending the treatment and supervision part in accordance with subsection (2);
(d)requiring the offender to comply with 1 or more of the following conditions:
(i)stay at a stated place, other than a correctional centre, for a stated period of up to 14 days;
(ii)stay at the stated place between stated hours for a stated period;
(iii)surrender a firearm in the offender’s possession or control;
(iv)not acquire a firearm;
(v)not consume alcohol or take drugs;
(vi)not drive a motor vehicle under particular circumstances, or at all;
(e)provisionally cancelling the suspension of the sentence of imprisonment under the custodial part, for a period of at least 3 days but not more than 14 days, and reinstating the suspension at the end of the period;
(f)cancelling the treatment order and imposing, in full or in part, the sentence of imprisonment that was suspended under the custodial part of the treatment order;
(g)cancelling the treatment order and resentencing the offender for each offence in relation to which the treatment order was made in any way in which the court could deal with the offender if, at the time of resentencing, it had convicted the offender of each offence, other than by making an order under section 12A (Drug and alcohol treatment orders).
(2)The treatment and supervision part of the order may be amended by adding, modifying or removing treatment program conditions.
Examples—treatment program condition
1 frequency of treatment
2 degree of supervision
3 frequency of drug and alcohol testing
(3)If the court is satisfied on the balance of probabilities that an offender who is subject to an order made under subsection (1) has breached the order, the court must—
(a)confirm or amend the order; or
(b)cancel the order and make another order under subsection (1).
(4)The court may make an order under this section on its own initiative or on application by—
(a)the offender; or
(b)the director of public prosecutions; or
(c)a member of the treatment and supervision team; or
(d)a person prescribed by regulation.
(5)If the court makes an order under this section, the court must, as soon as practicable after the order is made, ensure that written notice of the order, together with a copy of the order, is given to—
(a)the offender; and
(b)any other person who the court considers should receive the notice.
(6)Failure to comply with subsection (5) does not invalidate the treatment order.
(7)In this section:
firearm—see the Firearms Act 1996, section 6.
motor vehicle—see the Road Transport (General) Act 1999, dictionary.
80ZCProvisional breach of treatment order—offender in custody
(1)This section applies if the court is satisfied that an offender to whom a treatment order applies—
(a)has been charged with an offence against a law in force in Australia or elsewhere; and
(b)is in custody waiting for criminal proceedings for the offence to be decided.
(2)The court must make an order provisionally suspending the treatment and supervision part of the order until—
(a)the offender is no longer in custody for the offence; or
(b)the court makes an order under this division cancelling the treatment order.
(3)Time served by the offender on remand for the offence counts toward the sentence imposed under the custodial part of the treatment order.
NoteThe court may review a treatment order at any time and for any reason if it is in the interests of justice (see s 80ZH).
(4)In this section:
in custody means—
(a)remanded in custody under a law in force in Australia or elsewhere; or
(b)detained at a place under the Mental Health Act 2015, or a corresponding law in force in Australia or elsewhere.
80ZDBreach of treatment order—commission of offence
(1)This section applies if the court—
(a)convicts an offender subject to a treatment order of an offence punishable by imprisonment (a further offence); or
(b)is satisfied that an offender subject to a treatment order was convicted by another court, in the ACT or elsewhere, of an offence punishable by imprisonment (also a further offence).
(2)If the sentence imposed on the offender for the further offence is not a sentence of imprisonment, the court may—
(a)make no order in relation to the treatment order; or
(b)give the offender a warning about the need to comply with the offender’s treatment order obligations; or
(c)make an order amending the treatment and supervision part of the order; or
(d)make an order cancelling the treatment order and either—
(i)impose the sentence of imprisonment that was suspended under the custodial part of the treatment order; or
(ii)if the court considers it appropriate in the circumstances—resentence the offender for each offence in relation to which the treatment order was made and in any way in which the court could deal with the offender if it had convicted the offender of each offence at the time of resentencing, other than by making an order under section 12A (Drug and alcohol treatment orders).
(3)If the sentence imposed on the offender for the further offence is a sentence of imprisonment, the court must make an order cancelling the treatment order and imposing the sentence of imprisonment that was suspended under the custodial part of the treatment order.
NoteA sentence of imprisonment suspended under a treatment order is not part of a suspended sentence order (see s 12 (7)).
(4)If the court orders the imposition of a sentence of imprisonment under this section, the court—
(a)must order that the offender serve all or part of the sentence by full-time detention at a correctional centre; and
(b)may reduce the sentence by any period served in custody under the treatment and supervision part of the treatment order, taking into account the extent to which the offender complied with that part of the order.
(5)The court may make an order under this section on its own initiative or on application by—
(a)the offender; or
(b)the director of public prosecutions; or
(c)a member of the treatment and supervision team; or
(d)a person prescribed by regulation.
(6)If the court makes an order under this section, the court must, as soon as practicable after the order is made, ensure that written notice of the order, together with a copy of the order, is given to—
(a)the offender; and
(b)any other person the court considers should receive the notice.
(7)Failure to comply with subsection (6) does not invalidate the treatment order.
80ZECancellation of treatment order—unsatisfactory circumstances
(1)The court may cancel a treatment order if it is satisfied on the balance of probabilities that—
(a)before the order was made, inaccurate or misleading information about the offender or the offender’s circumstances was given to the court or an assessor who prepared a drug and alcohol treatment assessment in relation to the offender, and as a result of the information, the making of the order was inappropriate; or
(b)the offender will not be able to comply with a condition of the offender’s treatment order because the circumstances of the offender have materially changed since the order was made; or
(c)the offender is unwilling or unlikely to comply with a condition of the offender’s treatment order; or
(d)the continuation of the treatment and supervision part of the order is not likely to achieve the objects of the order; or
(e)the offender withdraws the offender’s consent to the treatment order; or
(f)the offender poses an unacceptable risk to the safety or welfare of a person.
(2)If the court decides to cancel a treatment order under subsection (1) the court must make an order cancelling the treatment order and, taking into account the extent to which the offender has complied with the treatment and supervision part of the order, either—
(a)impose the sentence of imprisonment that was suspended under the custodial part of the treatment order; or
(b)if the court considers it appropriate in the circumstances—resentence the offender for each offence in relation to which the treatment order was made and in any way in which the court could deal with the offender if it had convicted the offender of each offence at the time of resentencing, other than by making an order under section 12A (Drug and alcohol treatment orders).
(3)If the court orders the imposition of a sentence of imprisonment under this section, the court—
(a)must order whether the offender is to serve all or part of the sentence by full-time detention at a correctional centre; and
(b)may reduce the sentence by any period served in custody under the treatment and supervision part of the treatment order, taking into account the extent to which the offender complied with that part of the order.
(4)The court may make an order under this section on its own initiative or on application by—
(a)the offender; or
(b)the director of public prosecutions; or
(c)a member of the treatment and supervision team; or
(d)a person prescribed by regulation.
(5)This section applies in addition to section 80ZB and section 80ZD.
(6)If the court makes an order under this section, the court must, as soon as practicable after the order is made, ensure that written notice of the order, together with a copy of the order, is given to—
(a)the offender; and
(b)any other person the court considers should receive the notice.
(7)Failure to comply with subsection (6) does not invalidate the order.
80ZFCancellation of treatment order—satisfactory circumstances
(1)The court may, on its own initiative, make an order cancelling the treatment and supervision part of a treatment order if it is satisfied on the balance of probabilities that—
(a)the offender has fully or substantially complied with the conditions of the offender’s treatment order; and
(b)the continuation of the treatment order is no longer necessary to achieve the objects of the order.
(2)To avoid doubt, a treatment order that is only made up of a custodial part because of an order of the court under subsection (1) is taken to be a treatment order for this part.
(3)If the court makes an order under this section, the court must, as soon as practicable after the order is made, ensure that written notice of the order, together with a copy of the order, is given to the offender.
(4)Failure to comply with subsection (3) does not invalidate the order.
NoteThe court must make a good behaviour order in relation to an offender who is the subject of a treatment order if the treatment and supervision part of the order ends before the sentence of imprisonment suspended under the custodial part of the order (see s 80ZA).
Division 5.4A.8 Drug and alcohol treatment orders—review by court
80ZGApplication—pt 5.4A.8
This division applies to the review of a treatment order.
80ZHDrug and alcohol treatment orders—review
(1)The court may review a treatment order for an offender at any time and for any reason if it is satisfied the review is in the interests of justice.
NoteThe court may also review the offender’s bail at any time, see the Bail Act 1992, s 41A.
(2)The court may review a treatment order—
(a)on its own initiative; or
(b)on application by—
(i)the defence; or
(ii)any other member of the treatment order team.
(3)The court may carry out a review under this division in any way it considers appropriate.
(4)However, the court must conduct a hearing for a review in which the court is considering making an order under—
(a)section 80ZB (1) (e) provisionally cancelling the suspension of a sentence under a treatment order; or
(b)section 80ZB (1) (f), section 80ZD (2) (d) (i) or section 80ZE (2) (a) cancelling the treatment order; or
(c)section 80ZB (1) (g), section 80ZD (2) (d) (ii) or section 80ZE (2) (b) cancelling the treatment order and resentencing the offender.
(5)An entity mentioned in subsection (2) (b) may appear at a hearing of the review.
(6)The court may, on the review, confirm or amend the order as the court considers appropriate.
(7)If the court amends the order, the court must, as soon as practicable, ensure that written notice of the review decision, together with a copy of the amended treatment order is given to—
(a)the offender; and
(b)any other person who the court considers should receive the notice.
(8)Failure to comply with subsection (7) does not invalidate the order as amended.
(9)In this section:
defence means—
(a)any lawyer representing an offender; or
(b)if the offender is not legally represented—the offender.
80ZIDrug and alcohol treatment orders—notice of review
(1)The court must, as far as practicable, give written notice of a proposed review of the offender’s treatment order to the defence and the other members of the treatment order team.
(2)The notice must set out—
(a)the reasons for the review; and
(b)if a hearing for the review is to be conducted—the time and place for the review.
(3)Failure to comply with this section does not invalidate the review.
(4)In this section:
defence means—
(a)any lawyer representing an offender; or
(b)if the offender is not legally represented—the offender.
Division 5.4A.9 Drug and alcohol treatment orders—miscellaneous
80ZJArrest warrant—breach of treatment order obligations
(1)A judge may issue an arrest warrant if satisfied, by information on oath, that an offender subject to a treatment order has failed to comply, or will fail to comply, with the offender’s treatment order obligations.
(2)The warrant must—
(a)be in writing signed by the judge; and
(b)be directed to all police officers or a named police officer; and
(c)state briefly the matter on which the information is based; and
(d)order the offender’s arrest and bringing the offender before the court.
(3)A police officer who arrests the offender under the warrant must, as soon as practicable, bring the offender before the court.
80ZKArrest without warrant—breach of treatment order obligations
(1)This section applies if a police officer believes, on reasonable grounds, that—
(a)an offender has failed to comply, or will fail to comply, with any of the offender’s treatment order obligations; and
(b)it is not practicable under the circumstances for the officer to obtain a warrant under section 80ZJ.
(2)The police officer may arrest the offender without a warrant.
(3)If the police officer arrests the offender, the police officer must, as soon as practicable, bring the offender before the court.
80ZLDrug and alcohol treatment orders—outstanding warrants
(1)This section applies if a warrant is issued for an offender’s arrest under this division.
(2)Any period for which the warrant is outstanding and the offender is not in custody does not count toward the sentence imposed under the custodial part of the order.
(3)In this section:
in custody means—
(a)remanded in custody under a law in force in Australia or elsewhere; or
(b)detained at a place under the Mental Health Act 2015, or a corresponding law in force in Australia or elsewhere.
80ZMImmunity from criminal liability
(1)An offender’s admission of guilt in relation to a relevant drug offence is not admissible in evidence in a proceeding in relation to that offence if the admission was made during—
(a)the preparation of a drug and alcohol treatment assessment of the offender; or
(b)administering a treatment order for the offender.
(2)The admission, and any evidence obtained as a result of the admission, is not admissible in a criminal proceeding against the offender for the relevant drug offence.
(3)However, subsections (1) and (2) do not prevent a criminal proceeding against the offender for the relevant drug offence if evidence of the offence exists in a form other than the admission made by the offender or the evidence obtained as a result of the admission.
(4)In this section:
relevant drug offence means the following:
(a)an offence against the Criminal Code, section 618;
(b)an offence against the Drugs of Dependence Act 1989, section 162, section 164, section 169 or section 171;
(c)an offence against the Medicines, Poisons and Therapeutic Goods Act 2008, section 26 (2), section 34 (1) or (2), section 37 (2) or section 43 (3);
(d)an offence prescribed by regulation.
80ZNNo appeal against particular decisions
(1)No appeal may be made against a decision of the court—
(a)not to order a drug and alcohol treatment assessment; or
(b)not to make a treatment order; or
(c)that an offender breached a condition of a treatment order; or
(d)to amend the treatment and supervision part of a treatment order.
(2)Subsection (1) applies despite any other territory law.
80ZOEvidentiary certificates
(1)A certificate that appears to be signed by or for any of the following and which states any matter relevant to anything done or not done under this part in relation to a person, is evidence of the matter:
(a)the director-general;
(b)the health director-general;
(c)the director-general responsible for the Corrections Management Act 2007;
(d)an analyst.
(2)The court must accept a certificate mentioned in subsection (1) as proof of the matters stated in it if there is no evidence to the contrary.
(3)The director-general may appoint analysts for this part.
NoteFor the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.
(4)An appointment under subsection (3) is a notifiable instrument.
NoteA notifiable instrument must be notified under the Legislation Act.
(5)In this section:
analyst means a person who is appointed as an analyst under subsection (3).
80ZPInformation exchanges—treatment order team
(1)This section applies to personal information about an offender held by a member of the treatment order team that was obtained as a result of a drug and alcohol treatment assessment, or the administration or making of a treatment order for the offender.
(2)A member of the treatment order team may give the information to another member of the treatment order team for the purposes of the other member.
(3)This section is additional to any other Act that provides for information to be given by, or to, a member of the treatment order team.
NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).
(4)In this section:
personal information, about an offender, means any information or opinion relating to the offender, whether true or not, and whether recorded in a document or not.
80ZQReview of drug and alcohol treatment order provisions
(1)The Minister must—
(a)review the operation and effectiveness of provisions of this Act and any other territory law relating to drug and alcohol treatment orders, as soon as practicable after the end of 3 years after this section commences; and
(b)present a report of the review to the Legislative Assembly before the end of the section’s 4th year of operation.
(2)This section expires 5 years after the day it commences.
Dictionary, definition of assessor, new paragraph (c)
insert
(c)for part 4.2B (Drug and alcohol treatment assessments)—see section 46H.
Dictionary, new definition of core conditions
insert
core conditions, of a treatment order, for part 5.4A (Drug and alcohol treatment orders)—see section 80Y.
Dictionary, definition of court
substitute
court means—
(a)for this Act generally, if a court has sentenced an offender, made an order or given a direction—the same court, however constituted; and
(b)for part 4.2B (Drug and alcohol treatment assessments) and part 5.4A (Drug and alcohol treatment orders)—the Supreme Court.
Dictionary, new definitions
insert
custodial part, of a treatment order—see section 80W.
drug and alcohol treatment assessment—see section 46J.
drug and alcohol treatment order—see section 12A.
health director-general means the director-general responsible for the Health Records (Privacy and Access) Act 1997.
member—
(a)in relation to the treatment and supervision team, for part 5.4A (Drug and alcohol treatment orders)—see section 80M; and
(b)in relation to the treatment order team, for part 5.4A (Drug and alcohol treatment orders)—see section 80M.
treatment and supervision part, of a treatment order—see section 80X.
treatment and supervision team, for part 5.4A (Drug and alcohol treatment orders)—see section 80M.
treatment order, means a drug and alcohol treatment order.
treatment order obligations, of an offender subject to a treatment order, for part 5.4A (Drug and alcohol treatment orders)—see section 80P.
treatment order team, for part 5.4A (Drug and alcohol treatment orders)—see section 80M.
treatment program, for part 5.4A (Drug and alcohol treatment orders)—see section 80Z.
treatment program conditions, of a treatment order, for part 5.4A (Drug and alcohol treatment orders)—see section 80Z.
Part 7Supreme Court Act 1933
Exercise of jurisdiction by associate judge
New section 9 (1) (c)insert
(c)the jurisdiction of the court under part 2AA (Drug and alcohol treatment order jurisdiction).
New part 2AA
insert
Part 2AADrug and alcohol treatment order jurisdiction
37SADefinitions—pt 2AA
In this part:
drug and alcohol treatment order—see the Crimes (Sentencing) Act 2005, section 12A.
member—
(a)in relation to the treatment and supervision team—see the Crimes (Sentencing) Act 2005, section 80M; and
(b)in relation to the treatment order team—see the Crimes (Sentencing) Act 2005, section 80M.
treatment and supervision team—see the Crimes (Sentencing) Act 2005, section 80M.
treatment order judge means a judge exercising the jurisdiction of the court under this part.
treatment order team—see the Crimes (Sentencing) Act 2005, section 80M.
37SBDrug and alcohol treatment order jurisdiction
(1)The court has jurisdiction under this part to hear and decide all matters relating to a drug and alcohol treatment order in relation to an offender.
(2)Without limiting subsection (1), a matter relating to an offender’s drug and alcohol treatment order includes the following:
(a)the making of the order;
(b)the conditions of the order;
(c)an amendment of the order;
(d)the offender’s compliance with the order;
(e)the cancellation or suspension of the order;
(f)any matter reasonably necessary for the proper administration, operation of, or compliance with, the order.
37SCCourt not bound by rules of evidence
When exercising its jurisdiction under this part, the court is not bound by the rules of evidence and may inform itself of anything in a manner it thinks appropriate.
37SDTreatment order judge may convene case conference
(1)The treatment order judge may, from time to time, convene a case conference with the treatment order team or the treatment and supervision team in relation to any matter relating to a drug and alcohol treatment order, including the following:
(a)the making, amending or cancelling the order;
(b)giving directions that are reasonably necessary to achieve the object of the order;
(c)consulting with other members of the treatment and supervision team or members of the treatment order team;
(d)monitoring the progress of the offender subject to the order;
(e)managing the work of the court in relation to drug and alcohol treatment orders.
(2)It is not a requirement of a case conference under this section that the offender or the offender’s lawyer be present unless the court directs otherwise.
Dictionary, new definitions
insert
drug and alcohol treatment order, for part 2AA (Drug and alcohol treatment order jurisdiction)—see the Crimes (Sentencing) Act 2005, section 12A.
member, for part 2AA (Drug and alcohol treatment order jurisdiction)—
(a)in relation to the treatment and supervision team—see the Crimes (Sentencing) Act 2005, section 80M; and
(b)in relation to the treatment order team—see the Crimes (Sentencing) Act 2005, section 80M.
treatment and supervision team, for part 2AA (Drug and alcohol treatment order jurisdiction)—see the Crimes (Sentencing) Act 2005, section 80M.
treatment order, for part 2AA (Drug and alcohol treatment order jurisdiction)—see the Crimes (Sentencing) Act 2005, dictionary.
treatment order judge, for part 2AA (Drug and alcohol treatment order jurisdiction)—see section 37SA.
treatment order team, for part 2AA (Drug and alcohol treatment order jurisdiction)—see the Crimes (Sentencing) Act 2005, section 80M.
Endnotes
Presentation speech
Presentation speech made in the Legislative Assembly on 6 June 2019.
Notification
Notified under the Legislation Act on 9 October 2019.
Republications of amended laws
For the latest republication of amended laws, see certify that the above is a true copy of the Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019, which was passed by the Legislative Assembly on 24 September 2019.
Clerk of the Legislative Assembly
© Australian Capital Territory 2019
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