CRIMES (ADMINISTRATION OF SENTENCES) ACT 1999 - SCHEDULE 2
CRIMES (ADMINISTRATION OF SENTENCES) ACT 1999 - SCHEDULE 2
SCHEDULE 2 – Serious Offenders Review Council
Part 1 - Constitution
1 Chairperson
(1) The judicial members of the Review Council are to be appointed, in and by the instruments by which they are appointed (or in and by other instruments executed by the Governor) as--(a) Chairperson of the Review Council, and(b) Alternate Chairperson of the Review Council, and(c) Deputy Chairperson of the Review Council.
(2) Neither the appointment of a person who is a Judge as Chairperson, Alternate Chairperson or Deputy Chairperson, nor the person's service as Chairperson, Alternate Chairperson or Deputy Chairperson, affects--(a) the person's tenure of the office of a Judge, or(b) the person's rank, title, status, precedence, salary or other rights or privileges as a holder of the office of a Judge.
(3) A person who is a Judge may exercise the powers of a Judge even though the person is Chairperson, Alternate Chairperson or Deputy Chairperson.
(4) Service of a Judge as Chairperson, Alternate Chairperson or Deputy Chairperson is, for all purposes, taken to be service as a Judge.
2 Acting members
(1) During the illness or absence of the Chairperson, the Alternate Chairperson is to act in the office of the Chairperson and, while so acting, has all the functions of the Chairperson and is taken to be the Chairperson.
(2) During the illness or absence of the Alternate Chairperson, the Deputy Chairperson is to act in the office of the Alternate Chairperson and, while so acting, has all the functions of the Alternate Chairperson (including the function of acting in the office of the Chairperson during the illness or absence of the Chairperson) and is taken to be the Alternate Chairperson.
(3) The Governor may, from time to time, appoint a judicially qualified person to act in the office of the Deputy Chairperson during the illness or absence of the Deputy Chairperson, and the person, while so acting, has all the functions of the Deputy Chairperson and is taken to be the Deputy Chairperson.
(3A) The term for which a person is appointed to act in the office of the Deputy Chairperson is to be such period (not exceeding 3 years) as is specified in the relevant instrument of appointment.
(4) If a community member is granted leave of absence by the Minister, the Governor may appoint a person to act in the office of the member during the member's absence, and that person, while so acting, has all the functions of the member and is taken to be a member.
(5) The Governor may, at any time, remove a person from an office to which the person was appointed under subclause (3) or (4).
(6) For the purposes of this clause--(a) a vacancy in the office of Chairperson, Alternate Chairperson or Deputy Chairperson is taken to be an absence from office of the Chairperson, Alternate Chairperson or Deputy Chairperson, and(b) the Alternate Chairperson or Deputy Chairperson is taken to be absent from the office of Alternate Chairperson or Deputy Chairperson during any period of acting in another office under subclause (1) or (2).
3 Deputies
(1) The Commissioner may establish a list of officers of Corrective Services NSW 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.
(2) In the absence of an official member, the member's deputy--(a) may, if available, act in the place of the member, and(b) while so acting, has all the functions of the member and is taken to be a member.
4 Term of office
Subject to this Schedule, an appointed member holds office for 3 years, but is eligible (if otherwise qualified) for re-appointment.
5 Remuneration
An appointed member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member.
6 Vacancy in office of appointed member
(1) The office of an appointed member becomes vacant if the member--(a) dies, or(b) completes a term of office and is not re-appointed, or(c) resigns the office by instrument in writing addressed to the Minister, or(d) is removed from office by the Governor, or(e) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(f) becomes a mentally incapacitated person, or(g) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or(h) being a judicial member, ceases to be a judicially qualified person.
(2) The Governor may remove an appointed member from office at any time.
7 Revocation of appointment as official member
(1) The Commissioner may at any time revoke the appointment of an official member.
(2) On revocation under this clause, the office, as an official member, of the person affected is taken to be vacant.
8 Filling of vacancy in office of appointed member
If the office of an appointed member becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy.
9 Effect of certain other Acts
(1) The provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to an appointed member.
(2) The office of an appointed member is not, for the purposes of any Act, an office or place of profit under the Crown.
Part 2 - Procedure
10 Establishment of committees and appointment of other persons
(1) The Review Council may establish committees, or appoint any person or persons, to assist it in connection with the exercise of any of its functions.
(2) If a committee is established--(a) the members of that committee may be members of the Review Council, and(b) the procedure for the calling of meetings of a committee and for the conduct of business at those meetings is to be determined by the chairperson of the committee (subject to any determination of the Review Council), and(c) the Review Council may delegate to that committee such of its functions as may be prescribed by the regulations.
11 General procedure
(1) Except as otherwise provided by this Act or the regulations--(a) meetings of the Review Council are to be held at such times and places as are fixed by the Chairperson, and(b) the procedure for the convening of meetings of the Review Council and for the conduct of business at those meetings is to be as determined by the Chairperson.
(2) The Review Council may from time to time adjourn its proceedings to such times, dates and places and for such reasons as it thinks fit.
(3) The Review Council is not bound by the rules of evidence, but may inform itself of any matter in such manner as it thinks appropriate.
(4) Proceedings before the Review Council--(a) are to be closed to the public, unless the Review Council determines in a particular case that the proceedings are to be conducted wholly or partly in public, and(b) are not to be conducted in an adversarial manner, and(c) are to be conducted with as little formality and technicality, and with as much expedition, as fairness to any affected person and the requirements of this Act permit.
(5) A decision of the Review Council is not vitiated merely because of any informality or want of form.
(6) The Review Council may, if it thinks fit, hold a meeting at which some members participate by telephone, closed-circuit television or other means, but only if any member who speaks on a matter before the meeting can be heard by the other members and by members of the public (if the meeting is open to the public).
11A Use of audio links and audio visual links in proceedings
(1) A person who is required or entitled to appear before the Review Council in any proceedings and who is in custody in New South Wales--(a) must, unless the Review Council otherwise directs, appear before the Review Council by audio visual link if the place at which the person is in custody is not the place at which the Review Council is conducting the proceedings, and(b) may give evidence or make any submission to the Review Council by that audio visual link.
(2) Subclause (1) does not apply unless the person concerned is in custody at a place where the necessary audio visual links are available or can reasonably be made available.
(3) The Review Council may make a direction under subclause (1) only if it is satisfied that it is in the interests of justice for the person required or entitled to appear in the relevant proceedings to appear physically before the Review Council.
(4) The Review Council may direct that a person to whom subclause (1) does not apply (whether or not the person is involved in the proceedings) give evidence or make a submission to the Review Council by audio link or audio visual link from any place other than the place at which the Review Council is conducting the proceedings.
(5) The Review Council must not make a direction under subclause (4) if--(a) the necessary facilities are unavailable or cannot reasonably be made available, or(b) the Review Council is satisfied that the evidence or submission can more conveniently be given or made at the place at which the Review Council is conducting the relevant proceedings, or(c) the Review Council is satisfied by a person opposing the making of the direction that the direction would be unfair to the person, or(d) the Review Council is satisfied that the person in respect of whom the direction is proposed to be made will not give evidence or make the submission.
(6) If a person involved in the proceedings opposes the making of a direction under subclause (4), the Review Council must not make the direction unless satisfied that it is in the interests of justice to do so.
(7) The Review Council may make a direction under subclause (1) or (4) on its own motion or on the application of any person involved in the proceedings.
(8) If audio visual links are used for proceedings before the Review Council, facilities are to be made available for private communication between the person the subject of the proceedings and the person's representative in the proceedings if the person's representative is at the place where the Review Council is conducting the proceedings.
(9) The regulations may make provision for or with respect to the use of audio links and audio visual links in proceedings before the Review Council.
(10) For the avoidance of doubt, this clause operates despite any other provision of this Act that requires or entitles a person to be present at any proceedings of the Review Council and, in particular, applies despite section 21.
12 Quorum
The quorum for a meeting of the Review Council is 3 members consisting of one judicial member, one community member and one official member.
13 Attendance of community members
(1) For the purposes of any meeting of the Review Council, not more than 3 community members may attend for the purposes of constituting the Review Council.
(2) If there are more than 3 community members present at a particular meeting, the members who may attend the meeting are to be determined in accordance with arrangements approved by the Chairperson of the Review Council.
(3) Despite subclause (1), the Chairperson may convene up to 6 meetings a year of the Review Council at which all community members may attend.
14 Presiding members
(1) The Chairperson or a judicial member nominated by the Chairperson is to preside at a meeting of the Review Council.
(2) At a meeting of a Division, the judicial member of the Division is to preside.
15 Voting
(1) If the Chairperson and the Alternate Chairperson or Deputy Chairperson, or both, are present at a meeting of the Review Council, only the Chairperson is entitled to vote with respect to any decision.
(2) Despite subclause (1), if the Chairperson and the Alternate Chairperson or Deputy Chairperson, or both, are present at a meeting of the Review Council at which all community members may attend, the Alternate Chairperson and Deputy Chairperson are each entitled to vote with respect to any decision.
16 Decisions
(1) A decision supported by a majority of the votes cast at a meeting of the Review Council at which a quorum is present (being votes cast by persons entitled to vote at the meeting) is the decision of the Review Council.
(2) In the case of an equality of votes, the judicial member presiding at a meeting of the Review Council is to have the casting vote.
17 Record of proceedings
(1) The member presiding at a meeting of the Review Council must cause a record of the proceedings at the meeting to be made.
(2) Records made for the purposes of this clause may be destroyed after the expiry of the period prescribed by the regulations.
18 Authentication of documents
Any document requiring authentication by the Review Council is sufficiently authenticated if it is signed by--
(a) the member who presided at the meeting of the Review Council that dealt with the proceedings with respect to which the document was prepared, or
(b) in the absence of that member, any other member who was present at that meeting.
19 Evidentiary certificate
A certificate issued by the Executive Officer and Registrar of the Review Council, being a certificate that records any determination or decision of the Review Council is admissible in any legal proceedings and is evidence of the matters so recorded.
20 Proof of certain matters not required
In any legal proceedings, proof is not required, until evidence is given to the contrary, of--
(a) the constitution of the Review Council, or
(b) any determination, decision or recommendation of the Review Council, or
(c) the appointment of, or holding of office by, any member, or
(d) the presence or nature of a quorum at any meeting of the Review Council.
20A Rulings on points of law
If either of the following questions arises at a meeting of the Review Council, it is to be decided by the person presiding at the meeting alone--
(a) whether a question is a question of fact or law, or a question of mixed law and fact,
(b) any question determined to be a question of law alone or a question of mixed law and fact.
21 Application of Part to Divisions of the Review Council
This Part applies to a Division of the Review Council in the same way as it applies to the Review Council, except to the extent to which this Part otherwise provides.