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Bill 1996
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
In particular, the Bill amends:
(a)
the Community Service Orders Act 1979, the Children (Community
Service Orders) Act 1987, the Periodic Detention of Prisoners Act
1981 and the Home Detention Act 1996:
(i)
to provide that a civil action that would otherwise lie against a
person or organisation supervising an offender performing
community service work in accordance with any of those Acts
does not (subject to certain conditions) lie against the person or
organisation but lies instead against the Crown, and
(ii) to impose limits on the damages recoverable for injury suffered
by the offender, and
(iii) to require offenders to disclose any disabilities that substantially
increase their risk of injury from work, and
(b)
the Community Service Orders Act 1979, the Children (Community
Service Orders) Act 1987 and the Periodic Detention of Prisoners Act
1981 with respect to the work that may be performed by offenders, and
(c)
the Community Service Orders Act 1979 and the Children (Community
Service Orders) Act 1987 with respect to miscellaneous procedural and
substantial aspects of community service orders, including the
consequences of breaching those orders.
Clause 2 provides for the commencement of the proposed Act on a day or
days to be appointed by proclamation.
Clause 3 is a formal provision giving effect to the amendments to the
Community Service Orders Act 1979 set out in Schedules 1 and 3.
Clause 4 is a formal provision giving effect to the amendments to the
Children (Community Service Orders) Act 1987 set out in Schedules 2 and 4.
Clause 5 is a formal provision giving effect to the amendments to the
Periodic Detention of Prisoners Act 1981 set out in Schedule 5.
Clause 6 is a formal provision giving effect to the amendments to the Hume
Detention Act 1996 set out in Schedule 6.
Explanatory note page 2
Schedule 1
Miscellaneous amendments to Community
Service Orders Act 1979
Schedule 2
Miscellaneous amendments to Children
(Community Service Orders) Act 1987
Supervising court
At present, community service orders under the Community Service Orders
Act 1979 are registered in a court that is treated as the supervising court in
respect of those orders, even if it is not the sentencing court. The proposed
Act makes amendments to abolish this system. It is to be left, then, to:
(a)
the sentencing court or an equivalent or superior court to hear
proceedings relating to breaches of community service orders and
applications to revoke those orders, and
(b) any Local Court to hear applications to extend those orders.
Consequently, a number of references to the supervising court are omitted,
and provisions that are based on the supervising court system are revised or
omitted: Schedule 1 [2], [3], [5], [7]-[9], [11]-[13].
Law revision
Schedule 2 [4] and [7] omit references in the Children (Community Service
Orders) Act 1987 to extensions of orders by a court, as extensions under that
Act are now made only by the Director-General.
Changes to the regime applying to community service orders
If a community service order (under either Act) does not specify whether it is
to be served concurrently with another community service order that is also
to apply, or already applies, to the same person, the order will be treated as
concurrent: Schedules 1 [ l ] and 2 [l].
Presently, a person must not be directed under a community service order to
do the sort of work that a person is normally employed to do, even if no
person is, or is likely to be, employed in the work. Section 15 of the
Community Service Orders Act 1979 and section 18 of the Children
(Community Service Orders) Act 1987 are amended to prohibit a direction
that would in fact prevent the employment of a person: Schedules 1 [4] and
2 [2]. The Children (Community Service Orders) Act 1987 presently also
contains an exception to this rule and that exception is not disturbed.
Explanatory note page 3
The duration of community service orders will be able to be extended even
after they have expired, as long as the extension is applied for before the
expiry: Schedules 1 [6] and 2 [3].
A breach of one community service order that applies to a person will be
treated as a breach of every such order that applies to the person, even in the
case of cumulative orders and even if the person has not yet started serving
one or more of them: Schedules 1 [10] and 2 [5].
More than one breach will be able to be included in the one complaint or
summons: Schedules 1 [12] and 2 [6].
Savings and transitional provisions
A schedule of savings and transitional provisions is inserted in each Act:
Schedules 1 [14] and [15] and 2 [8]. These provisions include:
(a)
the standard power to make savings and transitional regulations, and
(b)
specific provisions that are consequential on the enactment of
Schedules 1 and 2.
Schedule 3
Amendment of Community Service Orders
Act 1979 with respect to work incidents
Liability in respect of work incidents
Schedule 3 [l] inserts a new Part 4:
to transfer any liability for the acts or omissions of persons performing
community service work from the party for whom the work is
performed to the Crown, but only if the work is approved and the act
or omission is not expressly directed by that party: proposed section
26M, and
to transfer any liability (being liability to persons performing
community service work for the acts or omissions of the party for
whom the work is performed) from that party to the Crown, but only if
the work is approved and the act or omission is not intended to cause
harm: proposed section 26N, and
to impose limits on the common law liability of the Crown for such
acts or omissions and to require offenders to mitigate their losses (for
example by undertaking rehabilitation): proposed section 260,
applying the principles of Division 3 of Part 5 of the Workers
Compensation Act 1987, and
Explanatory note page 4
(d) to impose on offenders a duty to declare any disabilities that
substantially increase their risk of injury from work: proposed section
26P, and
(e) to provide that the Director-General can settle claims against the
Crown that are based on liability that is transferred under proposed
Part 4: proposed section 26Q.
Related amendments
Schedule 3 [2] consequentially renumbers existing Part 4 (Regulations) as
Part 5.
Schedule 3 [3] inserts a provision to make it clear that the new Part applies
only to incidents that occur after the commencement of the Part.
Schedule 4
Amendment of Children (Community Service
Orders) Act 1987 with respect to work
incidents
Schedule 4 [ l ] inserts new Part 6 that parallels proposed Part 4 of the
Community Service Orders Act 1979 (outlined above).
Schedule 4 [2] consequentially renumbers existing Part 6 (Miscellaneous) as
Part 7.
Schedule 4 [3] inserts a provision to make it clear that the new Part applies
only to incidents that occur after the commencement of the Part.
Schedule 5
Amendment of Periodic Detention of
Prisoners Act 1981
Presently, a person must not be directed under an order under section 10 (1)
(b) of the Periodic Detention of Prisoners Act 1981 to do the sort of work
that a person is normally employed to do, even if no person is, or is likely to
be, employed in the work. Section 10 of that Act is amended to prohibit a
direction that would in fact prevent the employment of a person: Schedule
5 [1].
Schedule 5 [2] inserts new Part 5 that parallels proposed Part 4 of the
Community Service Orders Act 1979 (outlined above).
Explanatory note page 5
Schedule 5 [4] and [5] insert provisions as a consequence of the amendment
made by Schedule 5 [l] and to make it clear that the new Part 5 applies only
to incidents that occur after the commencement of the Part.
Schedule 6
Amendment of Home Detention Act 1996
Schedule 6 [1] replaces sections 27 and 28 to apply proposed Part 4 of the
Community Service Orders Act 1979 (outlined above) to community service
work under a home detention order and to support the proposed schedule of
savings and transitional provisions outlined below.
Schedule 6 [4] inserts a replacement Schedule 1 (Savings and transitional
provisions) to make it clear that the proposed section 27 applies only to
incidents that occur after the commencement of the section.
Schedule 6 [2], [3], [5] and [6] make consequential renumberings.
Explanatory note page 6