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Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
(a)
to establish a Drug Court of New South Wales, and
(b)
to establish a scheme under which:
(i)
drug dependent persons who are charged with offences (other
than certain offences involving violence or the supply of drugs)
can be referred to the Drug Court on indicating that they intend
to plead guilty. and
( i i ) the Drug Court can direct into drug programs such of the
persons so referred as meet specified criteria for acceptance into
drug programs. and
(iii) drug dependent persons accepted into drug programs are subject
to supervision by the Drug Court. and to rewards and sanctions
imposed by the Drug Court. in relation to their compliance with
certain conditions. and
*Amended in committee--see table at end of volume.
(iv) the Drug Court is required, when a person's drug program ends,
to reconsider the sentence imposed on the person before the
program began.
The Bill also makes consequential amendments to certain other Acts and
enacts provisions of a savings or transitional nature.
Preliminary
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day or
days to be appointed by proclamation.
Clause 3 specifies that the object of the proposed Act is to reduce the level
of criminal activity that results from drug dependency.
Clause 4 defines certain words and expressions used in the proposed Act.
Clause 5 defines the expression eligible person for the purposes of the
proposed Act. A person is an eligible person if he or she is charged with an
offence (other than an offence involving violent conduct, sexual assault or the
supply of drugs). is likely (if convicted) to be sentenced to imprisonment. has
pleaded guilty (or indicated a willingness to plead guilty) to the offence.
appears to be dependent on addictive drugs and satisfies such other criteria as
are prescribed by the regulations under the proposed Act.
Part 2
Drug Court programs
Division 1
Acceptance into program
Clause 6 provides for the referral to the Drug Court of a person who. having
been charged with an offence. appears to be an eligible person. The power is
to be exercised as soon as practicable after the person is charged.
Clause 7 enables the Drug Court to convict and sentence a person who
pleads guilty to the offence in respect of which he or she has been referred if
he or she meets specified criteria. and requires the Drug Court. on sentencing
the person. to make an order specifying conditions with which the person
must comply and to make a further order suspending execution of the
sentence. No appeal will lie against the Drug Court's refusal to convict and
sentence a person under the proposed section.
Explanatory note page 2
Clause 8 enables the Drug Court to convict and sentence a person who has
not been convicted and sentenced as referred to in clause 7, but only with the
person's consent. If the person does not consent, the person is to be referred
back to the court from which he or she was referred to the Drug Court as
referred to in clause 6. A person who is convicted and sentenced under the
proposed section will not participate in a drug program. A court to which a
person is referred back by the Drug Court is to continue to deal with the
person as if he or she had never been referred to the Drug Court.
Division 2
Administration of program
Clause 9 enables the Drug Court to vary or add to the conditions of a drug
offender's drug program. No appeal will lie against action taken by the Drug
Court under the proposed section.
Clause 10 provides for the procedures to be followed if the Drug Court
suspects that a drug offender has failed to comply with the requirements of a
drug program. Those procedures include a power to conduct a hearing to
decide (on the balance of probabilities) if there has been a failure to comply
and a power to impose sanctions on the drug offender or to terminate the drug
offender's participation in the drug program. No appeal will lie against action
taken by the Drug Court under the proposed section.
Clause 11 empowers the Drug Court to terminate a drug offender's
participation in a drug program if the drug offender successfully completes
the program. if the drug offender requests the Drug Court to terminate the
program or if the Drug Court decides to terminate the program as referred to
in clause 10. No appeal will lie against action taken by the Drug Court under
the proposed section.
Clause 12 requires the Drug Court to reconsider a drug offender's sentence
when it terminates his or her drug program. As a result of its reconsideration.
the Drug Court may discharge the drug offender. may defer passing sentence.
may impose some other sentence or may confirm the initial sentence.
Clause 13 requires the Drug Court to revoke the relevant suspension order
referred to in clause 7 when it sentences a drug offender as referred to in
clause 12.
Division 3
Miscellaneous
Clause 14 enables the Drug Court to issue arrest warrants if it suspects that
a drug offender has failed to comply with a drug program.
Clause 15 ensures that the Drug Court is able to impose the same sentence
for an offence committed by a drug offender as the District Court or a Local
Court could have imposed had the offence been dealt with by the District
Court or Local Court, as the case may be.
Explanatory note page 3
Clause 16 elaborates on the kinds of conditions that may be included in a
drug program. The conditions may allow the Drug Court to confer various
rewards on a person who maintains a satisfactory level of compliance with
the program. and to impose various sanctions (including monetary penalties
or imprisonment for up to 14 days) on a person who fails to comply with the
program.
Clause 17 gives a drug offender immunity from prosecution for offences
with respect to the unlawful possession or use of drugs on the basis of certain
admissions made by the drug offender for the purposes of the proposed Act.
Clause 18 provides for the application of the Criminal Procedure Act 1986
to proceedings before the Drug Court.
Part 3
The Drug Court
Division 1
Constitution of Drug Court
Clause 19 establishes the Drug Court of New South Wales.
Clause 20 enables the Governor to appoint District Court Judges as Drug
Court Judges. and provides that a person ceases to be the Drug Court Judge if
the person ceases to be a District Court Judge.
Clause 21 enables the Governor to appoint a Senior Judge of the Drug
Court.
Clause 22 enables the Minister administering the proposed Act to appoint
an acting Senior Judge of the Drug Court.
Division 2
Procedure of Drug Court
Clause 23 provides that proceedings in the Drug Court are to be dealt with
by a Judge. who will constitute the Court.
Clause 24 provides that the Drug Court has the criminal jurisdiction of the
District Court. the criminal jurisdiction of a Local Court and such other
jurisdiction as is vested in the Drug Court by the proposed Act or any other
Act.
Clause 25 provides for the sittings of the Drug Court. and enables two or
more sittings of the Drug Court to be held at the same time.
Clause 26 provides for the way in which certain proceedings before the
Drug Court are to be conducted and. in particular. provides for the
adjournment of such proceedings and for the conduct of such proceedings
with minimal formality and technicality.
Clause 27 enables the Senior Judge to make rules of court with respect to
the practice and procedure of the Drug Court.
Explanatory note page 4
Division 3
Administration
Clause 28 provides for the appointment of a registrar and other court staff
and for the use by the Drug Court of the staff and facilities of Government
departments.
Clause 29 provides that the Senior Judge is responsible for the
administration of the business of the Drug Court, and for the devolution of
some of those responsibilities to the registrar.
Clause 30 provides for the delegation of functions by the Senior Judge and
by the registrar.
Part 4
Miscellaneous
Clause 31 requires persons prescribed by the regulations under the proposed
Act to provide certain information to the registrar for the purposes of the
proposed Act. Compliance with such a requirement will be protected from
any legal action founded on the provision of information in accordance with
the requirement.
Clause 32 enables the Governor to make regulations for the purposes of the
proposed Act.
Clause 33 is a formal provision giving effect to the amendments to other
Acts that are made by Schedule 1.
Clause 33 is a formal provision giving effect to the savings and transitional
provisions in Schedule 2.
Clause 35 provides for the review of the proposed Act at the end of 2 years
after its date of assent, and for the tabling in Parliament of a report on the
results of the review.
Schedule 1 makes consequential amendments to the following Acts:
·
Bail Act 1978 No 161
·
Children (Criminal Proceedings) Act 1987 No 5.5
·
Criminal Appeal Act 1912 No 16
·
Criminal Procedure Act 1986 No 209
·
Justices Act 1902 No 27
·
Search Warrants Act 1985 No 37
·
Victims Compensation Act 1996 No 115
Schedule 2 contains a provision enabling the regulations under the proposed
Act to contain provisions of a savings or transitional nature (clause
and
proivides for the application of Part 2 of the proposed Act to offences
committed before the commencement of that Part (clause 2).
Explanatory note page 5