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1
Crime and Misconduct and Other Legislation
Amendment Bill 2006
Crime and Misconduct and Other
Legislation Amendment Bill 2006
Explanatory Notes
for
Amendments to be moved during
consideration in detail by the Honourable Linda
Lavarch MP
Title of the Bill
Crime and Misconduct and Other Legislation Amendment Bill 2006
Objectives of the Amendments
The amendments are intended:
· To provide that the new section 75B requirement contained in the Bill
which allows a presiding officer to require a witness at a crime
investigation or misconduct hearing to immediately produce a stated
document or thing will only apply when the presiding officer at a
commission hearing believes on reasonable grounds that a witness at
the hearing has possession of a document or thing and also believes on
reasonable grounds that the document or thing is relevant to the
investigation.
· To make it clear that more than one public hearing may be conducted
at the same time.
· To make a statute law revision amendment to the Police Powers and
Responsibilities Act 2000.
· To amend the Electoral Act 1992 and the Referendums Act 1997 to
maintain consistency with changes to the Commonwealth Electoral
Act 1918 concerning prisoners and to make consequential
amendments to the Local Government Act 1993.
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Crime and Misconduct and Other Legislation
Amendment Bill 2006
· To clarify certain provisions in Part 9, Division 3 of the Penalties and
Sentences Act 1992 (inserted by the Corrective Services Act 2006 and
yet to be commenced) as they relate to the fixing of dates for release to
parole or the fixing of parole eligibility dates.
A new regime with regards to parole was introduced with the passing of
the Corrective Services Act 2006. One of the major policy objectives of
that legislation is to ensure that the sentence imposed by a court operates
upon a prisoner for the whole of the period of imprisonment. The Act
establishes parole as the only form of early release from custody,
replacing remission, conditional release and the existing post-prison
community based release orders. The Act provides that either a court or
a parole board will determine when a prisoner is suitable for release on
parole, dependant upon the length of a prisoner's imprisonment. It was
also the intention of the new parole regime that at any given time the
prisoner should have one parole date relating to the entire period of
imprisonment he or she is due to serve. To give effect to that new
regime, amendments were also made to the Penalties and Sentences Act
1992 setting out the circumstances in which the Court is either obliged
to fix a parole release date or empowered to fix a parole eligibility date.
Currently the provisions of the Penalties and Sentences Act 1992 as
inserted by the Corrective Services Act 2006 cater for the situation
where a Court orders imprisonment on an offender for a substantive
offence in addition to the activation (in part or whole) of a suspended
sentence. In that circumstance the Court is either obliged to set a
parole date or is empowered to set a parole eligibility date on the
entire period of imprisonment imposed (depending on the nature of
the charge and the length of the sentence).
There is however a gap in the provisions of the Penalties and Sentences
Act 1992 as inserted by the Corrective Services Act 2006 whereby the
Court is not obliged to make a parole order in relation to an activated
suspended sentence where that activation is the only sentence order
made by a Court. The legislation therefore does not contemplate the
situation where an offender, for example, is sentenced to a term of
imprisonment in the Magistrates Court for the substantive offence but
is later dealt with by a higher Court where part or whole of the
suspended term of imprisonment is ordered to be served.
The reason that this situation is not covered by the provisions of the
Penalties and Sentences Act 1992 as inserted by the Corrective Services
Act 2006 is due to the fact that the court's obligations to make orders
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Crime and Misconduct and Other Legislation
Amendment Bill 2006
for parole arise when they are "imposing a term of imprisonment". In
the case of R v. Waters [1998] 2 Qd R 442, the Court of Appeal stated
that activating a term of an existing suspended sentence did not
constitute "imposing a term of imprisonment". The Court stated that
the term of imprisonment was imposed at the initial phase of
sentencing when the suspended term was set.
Consequently, amendment to the Penalties and Sentences Act 1992
provisions as inserted by the Corrective Services Act 2006 is required to
overcome the current case law and to ensure that the policy objectives
of the new parole regime are realised.
Estimated Cost for Government Implementation
Nil
Consistency with Fundamental Legislative Principles
The amendments are consistent with fundamental legislative principles.
Consultation
The Crime and Misconduct Commission, the Parliamentary Crime and
Misconduct Committee, the Electoral Commission Queensland, the
Department of Corrective Services, the Queensland Police Service and the
Department of Local Government, Planning, Sport and Recreation were
consulted about amendments relevant to their respective responsibilities.
Notes on Provisions
Amendment 1: Amendment 1 amends clause 2 of the Crime and
Misconduct and Other Legislation Amendment Bill 2006 to have the effect
that the Bill, including these amendments, will commence upon assent.
Amendment 2: Amendment 2 amends clause 6 of the Crime and
Misconduct and Other Legislation Amendment Bill 2006.
Clause 6 of the Crime and Misconduct and Other Legislation Amendment
Bill 2006 gives effect to recommendation 28 of the Parliamentary Crime
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Crime and Misconduct and Other Legislation
Amendment Bill 2006
and Misconduct Committee Report that presiding officers be allowed to
order at a commission crime investigation hearing or misconduct hearing
the immediate production of a document or thing.
Clause 6 of the Crime and Misconduct and Other Legislation Amendment
Bill 2006 inserts new section 75B which provides that the presiding officer
may require a witness to immediately produce a stated document or thing
that the presiding officer believes is relevant to the investigation. The
presiding officer may adjourn the hearing to allow the person to comply
with the requirement. This potentially could mean that a witness may be
required to produce a stated document or thing that is not in his or her
possession or control.
The amendment seeks to address this by providing that the new section
75B requirement will only apply when the presiding officer at a
commission hearing believes on reasonable grounds that a witness at the
hearing has possession of a document or thing and also believes on
reasonable grounds that the document or thing is relevant to the
investigation. `Possession' is defined in schedule 2 of the Crime and
Misconduct Act 2001 to include custody and control.
Amendments 3 and 4: Amendments 3 and 4 amend clause 10 of the Crime
and Misconduct and Other Legislation Amendment Bill 2006.
Clause 10 of the Crime and Misconduct and Other Legislation Amendment
Bill 2006 amends section 178 of the Crime and Misconduct Act 2001 to
allow the chairperson to decide that an assistant commissioner conduct the
public hearing if the chairperson considers it necessary for the efficient
operation of the commission.
It is arguable under clause 10 as to whether more than one public hearing
can be conducted at the same time (for example the chairperson conducting
one public hearing at the same time another public hearing is being
conducted by an assistant commissioner). The amendments to clause 10
make it clear that more than one public hearing may be conducted at the
same time.
Amendment 5: Amendment 5 amends the Crime and Misconduct and
Other Legislation Amendment Bill 2006 by inserting after clause 35 a new
Part 2A (new clause 35A and clause 35B) which in turn amends the
Corrective Services Act 2006, a new Part 2B (new clauses 35C to 35H)
which in turn amends the Electoral Act 1992 and a new Part 2C (clauses
35I to 35S) which in turn amends the Local Government Act 1993.
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Crime and Misconduct and Other Legislation
Amendment Bill 2006
New clause 35A provides that Part 2A amends the Corrective Services Act
2006.
New clause 35B amends section 497 of the Corrective Services Act 2006
which inserted new sections 160 to 160H into the Penalties and Sentences
Act 1992.
New clause 35B(1) amends section 497 Corrective Services Act 2006 by
inserting a definition of "impose" into new section 160 of the Penalties and
Sentences Act 1992 (yet to be commenced). The definition sets out that
imposing a term of imprisonment includes the making of an order that
either whole or part of an order of suspended imprisonment is activated.
This makes clear that new sections 160B 160D of the Penalties and
Sentences Act 1992 (yet to be commenced) as inserted by the Corrective
Services Act 2006 are intended to apply to cases when the Court is dealing
with the activation of an existing suspended term of imprisonment. This
definition also overcomes the case of R v. Waters [1998] 2 Qd R 442 which
states that activation of an existing suspended term of imprisonment does
not constitute the imposition of a term of imprisonment.
New clause 35B(2) amends section 497 Corrective Services Act 2006 by
inserting a note after the definition of "period of imprisonment" in new
section 160 of the Penalties and Sentences Act 1992. This amendment is to
clarify that a period of imprisonment includes the term of imprisonment a
court imposes at the time of sentence.
New clause 35B(3) amends section 497 of the Corrective Services Act
2006 by inserting a note into new section 160A(2) Penalties and Sentences
Act 1992 to clarify that new sections 160E to 160H further provide for the
parole orders that may be made under new sections 160B to 160D
New clause 35B(4) amends section 497 of the Corrective Services Act
2006 by correcting a grammatical error in new section 160B(1) of the
Penalties and Sentences Act 1992 by substituting the word "applies" for
"apply".
New clause 35B(5) amends section 497 of the Corrective Services Act
2006 by correcting in new section 160H(1)(b) of the Penalties and
Sentences Act 1992 the erroneous term "under this part" to "under this
division". A clarifying reference to new section 160E is also inserted.
New clause 35B(6) amends section 497 of the Corrective Services Act
2006 by correcting in new section 160H(2) of the Penalties and Sentences
Act 1992 the erroneous term "under this part" to "under this division".
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Crime and Misconduct and Other Legislation
Amendment Bill 2006
New clause 35B(7) amends section 497 of the Corrective Services Act
2006 by the inserting in new section 160H(2) of the Penalties and
Sentences Act 1992 a further clarifying statement in the example.
The amendments in new clauses 35B(5) and 35B(7) clarify the meaning of
new section 160H, that is, that when a court is imposing more than one
term of imprisonment in a series of sentencing orders, the court is not
required to make an order relating to parole in relation to each term of
imprisonment but may make one order relating to parole in relation to the
whole period of imprisonment.
New clause 35C provides for new Part 2B which amends the Electoral Act
1992.
There have been recent amendments to the Commonwealth Electoral Act
1918 in relation to prisoners. Under these changes, although all prisoners
(except those convicted of treason or treachery) are entitled to be enrolled
or remain on the electoral roll, they will not be entitled to vote in federal
elections.
Previously, prisoners serving sentences of three years or more or who had
been convicted of treason or treachery could not be enrolled on the
Commonwealth electoral roll and therefore could not vote.
The Government has decided in the interests of maintaining consistency
under the joint roll arrangements with the Commonwealth to also exclude
prisoners from voting.
As a consequence, all prisoners (apart from those convicted of treason or
treachery) will be entitled to remain or enrol on the Queensland roll but,
under new clause 35G, they will not be entitled to vote in State elections.
There are a number of consequential amendments. New clause 35D
amends the definition "institution" to exclude prisons. New clause 35E
provides that the Commission can ask the Chief Executive of the
Department of Corrective Services for information for the purpose of
deciding persons who are not entitled to vote because they are serving
sentences of imprisonment. New clause 35F omits a redundant definition.
New clause 35H removes a provision relating to prisoner postal votes.
New clause 35I provides that new Part 2C amends the Local Government
Act 1993.
New clauses 35I to 35S are consequential amendments to the Local
Government Act 1993 as a result of amendments to the Electoral Act 1992
to exclude prisoner voting.
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Crime and Misconduct and Other Legislation
Amendment Bill 2006
New clause 35K removes a provision about declaration votes by prisoners.
New Clause 35L ensures that persons released from prison after the rolls
are drawn but before the election must make a declaration vote. New
clauses 35J, 35M -35R are reference changes. New clause 35S removes
prisons from the definition "institution".
Amendment 6: Amendment 6 amends the Crime and Misconduct and
Other Legislation Amendment Bill 2006 by inserting clause 49A after
clause 49.
Section 408 of the Police Powers and Responsibilities Act 2000 provides
that the Crime and Misconduct Commission's register of covert acts is
open to the CMC, a monitor or the parliamentary commissioner.
Clause 49A, inserted by this amendment, deletes the reference in section
408(a) of the Police Powers and Responsibilities Act 2000 to `the Crime
and Misconduct Commission' and substitutes `the CMC chairperson'. This
is being done because it makes more sense to limit access to a covert
register to the chairperson, rather than the CMC as a body.
The amendment is also consistent with s.270 (1) of the Crime and
Misconduct Act 2001, which clearly aims to limit the right of inspection to
such a register to the chairperson.
Amendment 7: New clauses 50A-50D provide for new Part 4A which
amends the Referendums Act 1997. As for amendments to the Electoral
Act 1992 in amendment 5, these clauses relate to excluding prisoners from
voting in referendums.
© State of Queensland 2006