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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Crimes (Administration of Sentences)
Amendment Bill 2004
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Crimes (Administration of Sentences)
Act 1999 No 93 2
4 Amendment of other Acts and instrument 2
Schedule 1 Amendment of Crimes (Administration of Sentences)
Act 1999 3
Schedule 2 Further amendments to Crimes (Administration of
Sentences) Act 1999 13
Schedule 3 Amendment of other Acts and instrument 15
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2004
New South Wales
Crimes (Administration of Sentences)
Amendment Bill 2004
Act No , 2004
An Act to amend the Crimes (Administration of Sentences) Act 1999 with
respect to mobile phone offences, inquiries and hearings for correctional centre
offences, drug testing of inmates and other miscellaneous matters; and for other
purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Crimes (Administration of Sentences) Amendment Bill 2004
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Crimes (Administration of Sentences) Amendment
Act 2004.
2 Commencement
(1) This Act commences on a day or days to be appointed by
proclamation, except as provided by this section.
(2) The amendments made by Schedule 2 commence on the
commencement of Schedule 1 [14] to the Crimes (Administration of
Sentences) Further Amendment Act 2002.
(3) The amendments made by Schedule 3.2 commence on the date of
assent.
3 Amendment of Crimes (Administration of Sentences) Act 1999 No 93
The Crimes (Administration of Sentences) Act 1999 is amended as
set out in Schedules 1 and 2.
4 Amendment of other Acts and instrument
The Acts and instrument specified in Schedule 3 are amended as set
out in that Schedule.
Page 2
Crimes (Administration of Sentences) Amendment Bill 2004
Amendment of Crimes (Administration of Sentences) Act 1999 Schedule 1
Schedule 1 Amendment of Crimes (Administration of
Sentences) Act 1999
(Section 3)
[1] Section 3 Interpretation
Insert in alphabetical order in section 3 (1):
mobile phone includes any device that may be used, in whole
or in part, for the purpose of sending or receiving voice or
other data over a mobile telephone network, whether or not it
may be used for any other purpose.
non-invasive sample means any of the following samples of
human biological material:
(a) a sample of breath, taken by breath test, breath analysis
or otherwise,
(b) a sample of urine,
(c) a sample of faeces,
(d) a sample of saliva taken by buccal swab,
(e) a sample of nail,
(f) a sample of hair other than pubic hair,
(g) a sample of sweat taken by swab or washing from any
external part of the body other than:
(i) the genital or anal area or the buttocks, or
(ii) the breasts of a female or a transgender person
who identifies as a female.
[2] Section 51 Definitions
Omit the definitions of major offence and minor offence.
[3] Section 53 Penalties governor may impose
Omit "minor offence" from section 53 (1), (2) and (3) wherever occurring.
Insert instead "correctional centre offence".
[4] Section 53 (1) (b)
Omit "28". Insert instead "56".
Page 3
Crimes (Administration of Sentences) Amendment Bill 2004
Schedule 1 Amendment of Crimes (Administration of Sentences) Act 1999
[5] Section 53 (1) (c)
Omit "3". Insert instead "7".
[6] Section 54 Reference of offences to Visiting Magistrate
Omit section 54 (1). Insert instead:
(1) The governor may refer a correctional centre offence with
which an inmate is charged to a Visiting Magistrate for
hearing and determination if the governor considers that,
because of the serious nature of the offence, it should be
referred to a Visiting Magistrate.
[7] Section 55 Hearing of charges by Visiting Magistrate
Omit section 55 (5). Insert instead:
(5) Any hearing in the proceedings is to be held:
(a) in the correctional centre at which the inmate is in
custody, or
(b) if the Visiting Magistrate is satisfied that it is in the
interests of the administration of justice for it to be held
elsewhere--at any other place appointed by the
Visiting Magistrate (an appointed place).
(5A) If a Visiting Magistrate appoints an appointed place for the
holding of any hearing in the proceedings, the Visiting
Magistrate may do any of the following:
(a) direct that the inmate must appear before the Visiting
Magistrate by way of audio visual link from the
correctional centre at which the inmate is in custody,
(b) direct that any other inmate who gives evidence or
makes a submission in the hearing is to do so by way of
audio visual link from the correctional centre at which
that inmate is in custody,
(c) direct that any person other than an inmate who gives
evidence or makes a submission is to do so by way of
audio visual link from any place within New South
Wales nominated by the Visiting Magistrate.
(5B) The Visiting Magistrate must not make a direction referred to
in subsection (5A) if:
(a) the necessary audio visual facilities are unavailable or
cannot reasonably be made available, or
Page 4
Crimes (Administration of Sentences) Amendment Bill 2004
Amendment of Crimes (Administration of Sentences) Act 1999 Schedule 1
(b) the Visiting Magistrate is satisfied that the direction
would be unfair to a party to the proceedings.
(5C) Facilities are to be made available for private communication
between an inmate appearing by way of audio visual link
under this section and the inmate's representative in the
proceedings if the inmate's representative attends the hearing
at the appointed place.
(5D) Any place at which a person appears, gives evidence or makes
a submission by way of audio visual link under this section is
taken to be part of the appointed place.
(5E) Subsection (5D) has effect, for example, for the purposes of
the laws relating to evidence, procedure, contempt of court or
perjury.
(5F) Subsection (5D) also has the effect that any offence
committed at the place at which a person appears, gives
evidence or makes a submission under this section by way of
audio visual link is to be taken to have been committed at the
appointed place.
(5G) Sections 5D, 20A, 20B and 20D20F of the Evidence (Audio
and Audio Visual Links) Act 1998 apply, with such
modifications as the Visiting Magistrate may direct, to
proceedings in which a person appears, gives evidence or
makes a submission by way of audio visual link under this
section as they apply to the appearance, giving evidence or
making of a submission by way of audio visual link in a
proceeding before a NSW court under that Act.
(5H) Nothing in this section prevents a direction under section
5BB (1) of the Evidence (Audio and Audio Visual Links) Act
1998 being made in the proceedings.
[8] Section 56 Penalties Visiting Magistrate may impose
Omit "conducting an inquiry" from section 56 (1).
Insert instead "hearing the charge".
[9] Section 56 (1)(3)
Omit "the offence" wherever occurring.
Insert instead "the correctional centre offence".
Page 5
Crimes (Administration of Sentences) Amendment Bill 2004
Schedule 1 Amendment of Crimes (Administration of Sentences) Act 1999
[10] Section 56 (1) (b)
Omit "56". Insert instead "90".
[11] Section 56 (1) (e)
Omit "28 days". Insert instead "6 months".
[12] Section 56 (1) (f)
Insert after section 56 (1) (e):
(f) imposition of a sentence of imprisonment for a period
not exceeding 6 months.
[13] Section 56 (4)
Insert after section 56 (3):
(4) To avoid doubt, a Visiting Magistrate making an order
referred to in subsection (1) (f) is a person exercising criminal
jurisdiction for the purposes of the definition of court in
section 3 (1) of the Crimes (Sentencing Procedure) Act 1999.
[14] Section 56A
Insert after section 56:
56A Penalty for possession of a mobile phone
(1) The governor or Visiting Magistrate dealing with a charge
relating to a correctional centre offence arising out of the
possession of a mobile phone or any part of it, a mobile phone
SIM card or any part of it, or a mobile phone charger or any
part of it may order that an inmate be deprived, for up to 6
months, of such withdrawable privileges as the governor or
Visiting Magistrate may determine if satisfied beyond
reasonable doubt that the inmate is guilty of the offence.
(2) Tor avoid doubt, if a penalty is imposed under this section in
respect of a correctional centre offence, a governor or Visiting
Magistrate must not also impose a penalty referred to in
section 53 or 56, as the case may be, in respect of the same
correctional centre offence.
Page 6
Crimes (Administration of Sentences) Amendment Bill 2004
Amendment of Crimes (Administration of Sentences) Act 1999 Schedule 1
[15] Section 57 Drug tests for inmates
Omit section 57 (1) (a). Insert instead:
(a) the result of a test showing the presence of a drug in a
non-invasive sample taken from or provided by an
inmate, or
[16] Section 57 (1) (b)
Omit "provide a sample of his or her urine".
Insert instead "provide, or enable to be taken, from the inmate a non-
invasive sample".
[17] Section 59 Compensation for property damage
Omit "$100" from section 59 (2). Insert instead "$500".
[18] Section 62 Appeals against decisions of Visiting Magistrates
Insert "or (f)" after "section 56 (1) (e)" in clause 62 (1).
[19] Section 79 Regulations
Omit "an inmate's breath, urine or faeces" from section 79 (v).
Insert instead "a non-invasive sample provided by, or taken from, an
inmate".
[20] Section 79 (w)
Omit the paragraph.
[21] Section 101 Regulations
Omit "an offender's breath, urine or faeces" from section 101 (f).
Insert instead "a non-invasive sample provided by, or taken from, an
offender".
[22] Section 117 Regulations
Omit "an offender's breath, urine or faeces" from section 117 (e).
Insert instead "a non-invasive sample provided by, or taken from, an
offender".
Page 7
Crimes (Administration of Sentences) Amendment Bill 2004
Schedule 1 Amendment of Crimes (Administration of Sentences) Act 1999
[23] Section 163 Revocation of periodic detention order
Omit section 163 (2) and (2A). Insert instead:
(2) The Parole Board must revoke an offender's periodic
detention order on the application of the Commissioner if the
Parole Board is satisfied that:
(a) the offender:
(i) has failed to report for 3 or more detention
periods, whether during the same sentence of
imprisonment or during different sentences of
imprisonment being served consecutively (or
partly consecutively) and whether any of the
failures to report occurred before or after a
reinstatement of the offender's periodic detention
order under section 164A or 168A, and
(ii) has not had a periodic detention order reinstated
previously under section 164A or 168A
following revocation for failure to report for 3 or
more detention periods, whether under this
subsection or any other law, or
(b) the offender:
(i) has failed to report for at least 1 detention period,
and
(ii) has had a periodic detention order reinstated
previously under section 164A or section 168A
following revocation for failure to report for 3 or
more detention periods, whether under this
subsection or any other law,
and the Parole Board is satisfied that the failures to report
occurred otherwise than on leave of absence and are not the
subject of an exemption under section 90.
(2A) An application under subsection (2) must be made:
(a) if the Commissioner is satisfied that:
(i) an offender has failed to report for 3 or more
consecutive detention periods, and
(ii) the offender has failed to apply for, or been
refused, leave of absence with respect to each of
the detention periods referred to in subparagraph
(i), and
Page 8
Crimes (Administration of Sentences) Amendment Bill 2004
Amendment of Crimes (Administration of Sentences) Act 1999 Schedule 1
(iii)the offender's periodic detention order has not
previously been reinstated under section 164A or
168A following revocation for failure to report
for 3 or more detention periods, whether under
subsection (2) or any other law, or
(b) if the Commissioner is satisfied that:
(i) an offender has failed to report for at least 1
detention period, and
(ii) the offender has failed to apply for, or been
refused, leave of absence with respect to the
detention period referred to in subparagraph (i),
and
(iii) the offender's periodic detention order has
previously been reinstated under section 164A or
168A following revocation for failure to report
for 3 or more detention periods, whether under
subsection (2) or any other law.
[24] Section 249 Definitions
Insert at the end of the section:
(2) For the removal of doubt, person in custody in subsection (1)
includes a person in lawful custody:
(a) refused bail by an authorised officer as referred to in
section 20 of the Bail Act 1978, or
(b) granted bail by an authorised officer but not released as
referred to in section 20 of the Bail Act 1978, or
(c) arrested under section 50 (1) (a) of the Bail Act 1978, or
(d) apprehended under a warrant referred to in section 50
(1) (b) (i) of the Bail Act 1978.
[25] Section 250 Transport and detention of persons in custody
Insert ", court" after "correctional centre" in section 250 (2) (a).
[26] Section 255 Effect of extension of sentence
Insert ", or partly consecutively," after "consecutively" in section 255 (2).
[27] Section 255 (2) (a)
Insert "or before" after "at".
Page 9
Crimes (Administration of Sentences) Amendment Bill 2004
Schedule 1 Amendment of Crimes (Administration of Sentences) Act 1999
[28] Section 255 (2) (b)
Omit "at the expiry of the earlier sentence".
Insert instead "at or before the expiry of the earlier sentence (but after the
end of any non-parole period)".
[29] Schedule 2 Serious Offenders Review Council
Omit clause 3 (1). Insert instead:
(1) The Commissioner may establish a list of officers of the
Department eligible to be nominated as the deputy of an
official member (eligible officers).
(1A) An official member may from time to time nominate an
eligible officer to be the deputy of the official member.
(1B) The nomination of a deputy of an official member under this
clause may be revoked at any time by the Commissioner or
the official member that nominated the deputy.
(1C) The nomination of a deputy under this clause may be for a
specified period or an indefinite period and, in respect of the
period the nomination is in force, has effect according to its
terms.
(1D) The nomination of a deputy of an official member under this
clause is revoked on revocation of the appointment of the
official member under clause 7.
[30] Schedule 5 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Crimes (Administration of Sentences) Amendment Act 2004
Page 10
Crimes (Administration of Sentences) Amendment Bill 2004
Amendment of Crimes (Administration of Sentences) Act 1999 Schedule 1
[31] Schedule 5
Insert at the end of the Schedule with appropriate Part and clause numbers:
Part Provisions consequent on enactment of
Crimes (Administration of Sentences)
Amendment Act 2004
Definition
In this Part, the 2004 amending Act means the Crimes
(Administration of Sentences) Amendment Act 2004.
Removal of distinction between major offence and minor
offence
Sections 51, 53 and 54, as in force before their amendment by
the 2004 amending Act, continue to apply to any correctional
centre offence committed before the commencement of those
amendments, and such offences are to be dealt with in
accordance with those sections as if they had not been so
amended.
Hearing of charges by Visiting Magistrate
Section 55, as in force before its amendment by the 2004
amending Act, continues to apply to any proceedings on a
charge referred to a Visiting Magistrate that had been referred
but not concluded before the commencement of that
amendment, and such proceedings are to be determined in
accordance with that section as if it had not been so amended.
Compensation for property damage
Section 59, as in force before its amendment by the 2004
amending Act, continues to apply to a correctional centre
offence committed before the commencement of that
amendment, and such an offence is to be dealt with in
accordance with that section as if it had not been so amended.
Revocation of periodic detention orders
Section 163 (2) and (2A), as substituted by the 2004
amending Act, apply to a failure to report for a detention
period that occurred before the commencement of the relevant
Page 11
Crimes (Administration of Sentences) Amendment Bill 2004
Schedule 1 Amendment of Crimes (Administration of Sentences) Act 1999
provision (being one of a series of detention periods occurring
during consecutive, or partly consecutive, sentences of
imprisonment) only if it is one of a series of failures to report
of which the most recent occurred after the relevant
commencement.
Extension of sentences
(1) Section 255, as in force before its amendment by the 2004
amending Act, continues to apply to a sentence whose term or
non-parole period was extended under this Act before the
commencement of that amendment.
(2) Any such sentence and the date of commencement of any
other sentence that is to be served consecutively with the
extended sentence are to operate in accordance with section
255 as if it had not been so amended.
Exempt documents within the meaning of Freedom of
Information Act 1989
A document that contains matter relating to functions in
relation to which the office of Inspector-General of Corrective
Services was, by virtue of section 9 of the Freedom of
Information Act 1989, exempt from the operation of that Act
immediately before 1 October 2003 is taken to be, and to
always have been, an exempt document within the meaning of
the Freedom of Information Act 1989.
Page 12
Crimes (Administration of Sentences) Amendment Bill 2004
Further amendments to Crimes (Administration of Sentences) Act 1999 Schedule 2
Schedule 2 Further amendments to Crimes
(Administration of Sentences) Act 1999
(Section 3)
[1] Section 236F Testing of staff for alcohol and prohibited drugs
Omit "to provide a sample of the staff member's urine or hair" from
section 236F (1) (b).
Insert instead "to provide, or enable to be taken, a non-invasive sample
from the staff member".
[2] Section 236F (3) (b)
Omit "to provide a sample of the member of staff's urine or hair".
Insert instead "to provide, or enable to be taken, a non-invasive sample
from the staff member".
[3] Section 236G Testing where member of correctional staff attends
hospital
Omit "provide a sample of the member of staff's blood, urine or hair" from
section 236G (1).
Insert instead "provide, or enable to be taken, a sample of blood or a non-
invasive sample from the staff member".
[4] Section 236G (4)
Omit "taking of a sample of blood, urine or hair".
Insert instead "taking, or provision, of a sample of blood or a non-invasive
sample".
[5] Section 236H Protection from liability
Omit "taking a sample of blood, urine or hair" from section 236H (1).
Insert instead "taking, or being provided with, a sample of blood or a non-
invasive sample".
[6] Section 236H (1) (a) and (b)
Omit "take the sample of blood, urine or hair" wherever occurring.
Insert instead "take, or be provided with, the sample of blood or the non-
invasive sample".
Page 13
Crimes (Administration of Sentences) Amendment Bill 2004
Schedule 2 Further amendments to Crimes (Administration of Sentences) Act 1999
[7] Section 236I Regulations
Omit "samples of urine, hair or blood" from section 236I (c).
Insert instead "samples of blood or non-invasive samples".
[8] Section 236I (e)
Omit "a sample of the staff member's urine or hair".
Insert instead "a non-invasive sample from the staff member".
[9] Section 236I (h)
Omit "samples of urine, hair or blood".
Insert instead "samples of blood or non-invasive samples".
Page 14
Crimes (Administration of Sentences) Amendment Bill 2004
Amendment of other Acts and instrument Schedule 3
Schedule 3 Amendment of other Acts and instrument
(Section 4)
3.1 Crimes (Administration of Sentences) Regulation 2001
[1] Clause 113B
Insert after clause 113A:
113B Inmate possession of a mobile phone
An inmate must not have in his or her possession a mobile
phone or any part of it, a mobile phone SIM card or any part
of it, or a mobile phone charger or any part of it.
[2] Clause 116 Definition of "correctional centre offence"
Omit "Part 1 or 2 of" from clause 116 (c).
[3] Clause 117 Definition of "major offence"
Omit the clause.
[4] Clause 118 Attempts
Omit "and (if appropriate) a major offence".
[5] Schedule 2
Omit the Schedule. Insert instead:
Schedule 2 Correctional centre offences
(Clause 116)
Provision Subject
Clause 5 Supply false or misleading particulars
Clause 8 Fail to surrender property on reception
Clause 38 Fail to clean yards
Clause 39 Fail to comply with correctional centre routine
Clause 40 Enter other cells
Page 15
Crimes (Administration of Sentences) Amendment Bill 2004
Schedule 3 Amendment of other Acts and instrument
Provision Subject
Clause 41 Fail to attend musters
Clause 42 Operate bell, hooter, siren or whistle
Clause 43 Avoid correctional centre routine
Clause 44 Unlawfully deliver or receive article to or from inmate
Clause 45 Possess or create prohibited goods
Clause 46 Resist or impede search
Clause 47 Fail to keep property in a tidy and orderly manner
Clause 52 Unlawfully purchase food
Clause 52 Possess unauthorised food
Clause 52 Unlawfully trade in food
Clause 56 Fail to maintain personal cleanliness
Clause 57 Wear improper clothing
Clause 58 Fail to keep clean cells and issued articles
Clause 58 Damage, destroy or deface cell
Clause 58 Fail to look after clothing, bedding and other issued articles
Clause 59 Unlawfully possess condom or dental dam
Clause 59 Unlawfully use condom or dental dam
Clause 59 Unlawfully dispose of condom or dental dam
Clause 61 Misbehave while attending services and programs
Clause 68 Desecrate or abuse religious items
Page 16
Crimes (Administration of Sentences) Amendment Bill 2004
Amendment of other Acts and instrument Schedule 3
Provision Subject
Clause 97 Convey or deliver to, or receive from, visitors unauthorised
articles
Clause 107 Send or receive unauthorised letters or parcels
Clause 108 Send prohibited letters, parcels or articles
Clause 112 Unlawfully use telephone or facsimile
Clause 113A Possess camera or video or audio recording equipment
Clause 113B Possess mobile phone, mobile phone SIM card or mobile phone
charger
Clause 120 Disobey direction
Clause 124 Contravene condition of local or interstate leave permit
Clause 125 Conceal for purpose of escape
Clause 126 Conceal article for use in escape or other offence
Clause 126A Possess offensive weapon or instrument
Clause 127 Intimidation
Clause 128 Indecency
Clause 129 Participate, or inciting other inmates to participate, in riot
Clause 130 Assaults
Clause 130 Fight or engage in other physical combat
Clause 130 Throw article
Clause 131 Steal
Clause 131 Damage or destroy property
Clause 131 Tamper with food or drink
Page 17
Crimes (Administration of Sentences) Amendment Bill 2004
Schedule 3 Amendment of other Acts and instrument
Provision Subject
Clause 132 Hinder or obstruct dog
Clause 133 Cause harm to animal, bird or reptile
Clause 134 Interfere with correctional centre property
Clause 135 Tattoo
Clause 136 Gamble
Clause 137 Possess or consume alcohol
Clause 137 Prepare or manufacture alcohol
Clause 138 Possess drug
Clause 139 Administer drug
Clause 140 Possess drug implement
Clause 141 Self-intoxication
Clause 142 Fail prescribed urine test
Clause 143 Smoke in non-smoking area
Clause 143 Alter, damage or remove non-smoking sign or smoking sign
Clause 144 Bribery
Clause 145 Obstruct correctional officer
Clause 146 Refuse breath testing
Clause 148 Refuse or fail to supply urine sample
Clause 149 Refuse or fail to supply urine sample
Clause 160 Make mischievous complaint
Clause 172 Give false or misleading information
Page 18
Crimes (Administration of Sentences) Amendment Bill 2004
Amendment of other Acts and instrument Schedule 3
[6] Dictionary
Omit the definitions of major offence and minor offence.
3.2 Criminal Appeal Act 1912 No 16
[1] Section 25A Certain time to count as part of appellant's sentence
Insert after section 25A (5):
(6) In this section, appeal includes an application for special
leave to appeal.
[2] Section 28A
Insert after section 28:
28A Operation of sections 18 and 25A
(1) This section applies if, under section 18 or 25A, any period
does not count as part of any term of imprisonment under an
appellant's sentence.
(2) The court may make any order that it thinks fit to give effect
to section 18 or 25A (including an order specifying the date of
the commencement or re-commencement of the sentence).
(3) If the court does not make such an order, the sentence
commences or re-commences on the appropriate date
required for the operation of section 18 or 25A.
(4) This section extends to apply in respect of the following
appeals:
(a) an appeal made, but not determined, before the
commencement of this section,
(b) an appeal in respect of which notice of intention to
appeal or to apply for leave to appeal or application for
leave (or for special leave) to appeal was made before
the commencement of this section.
3.3 Freedom of Information Act 1989 No 5
Schedule 2 Exempt bodies and offices
Omit the matter relating to the office of Inspector-General of Corrective
Services.
Page 19
Crimes (Administration of Sentences) Amendment Bill 2004
Schedule 3 Amendment of other Acts and instrument
3.4 Summary Offences Act 1988 No 25
Section 27DA
Insert after section 27D:
27DA Inmate possession of a mobile phone
(1) An inmate must not, without reasonable excuse (proof of
which lies on the inmate), have in his or her possession in a
place of detention a mobile phone or any part of it, a mobile
phone SIM card or any part of it, or a mobile phone charger
or any part of it.
Maximum penalty: imprisonment for 2 years or 50 penalty
units, or both.
(2) In this section, mobile phone includes any device that may be
used, in whole or in part, for the purpose of sending or
receiving voice or other data over a mobile telephone
network, whether or not it may be used for any other purpose.
Page 20
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