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TASMANIA
__________
JUSTICE AND RELATED LEGISLATION
(FURTHER MISCELLANEOUS AMENDMENTS)
BILL 2009
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Repeal of Act
PART 2 CORRECTIONS ACT 1997 AMENDED
4. Principal Act
5. Section 3 amended (Interpretation)
6. Section 72 amended (Release on parole)
7. Sections 87A and 87B inserted
87A. Eligible persons register
87B. Releasing information
PART 3 CRIMINAL CODE ACT 1924 AMENDED
8. Principal Act
9. Principal Act amended
PART 4 CRIMINAL LAW (DETENTION AND INTERROGATION)
ACT 1995 AMENDED
10. Principal Act
11. Section 3 amended (Interpretation)
[Bill 90]-VI
12. Section 16 amended (Duties of custody officer in relation to
persons in custody)
13. Section 17 inserted
17. Duties of correctional officer in relation to persons in
custody
PART 5 JUSTICES ACT 1959 AMENDED
14. Principal Act
15. Section 55 amended (Procedure when brought before justices)
16. Section 72AB inserted
72AB. Perverting the course of justice triable summarily
PART 6 MAGISTRATES COURT (CIVIL DIVISION) ACT 1992
AMENDED
17. Principal Act
18. Section 28 substituted
28. Appeals to Supreme Court
PART 7 MENTAL HEALTH ACT 1996 AMENDED
19. Principal Act
20. Section 3 amended (Interpretation)
21. Section 72P amended (Leave of absence for forensic patients
generally)
22. Section 72Q amended (Leave of absence for forensic patients on
restriction orders)
23. Section 72R amended (Notification of victims)
24. Section 73P amended (Notifying persons of release)
PART 8 POLICE POWERS (SURVEILLANCE DEVICES) ACT 2006
AMENDED
25. Principal Act
26. Section 8 substituted
8. Who may issue warrants?
27. Section 9 amended (Application for surveillance device warrant)
PART 9 RESIDENTIAL TENANCY ACT 1997 AMENDED
28. Principal Act
2
29. Section 17 amended (Money other than rent)
PART 10 SENTENCING ACT 1997 AMENDED
30. Principal Act
31. Section 24 substituted
24. Suspended sentence to be conditional
32. Section 27 amended (Breach of order suspending sentence)
33. Section 36 substituted
36. Breach of community service order
36AA. Offences relating to community service orders
34. Section 42 substituted
42. Breach of probation order
42A. Offence relating to a probation order
35. Section 54A substituted
54A. Contravention of rehabilitation program order
36. Section 68 amended (Compensation order)
PART 11 SUPREME COURT CIVIL PROCEDURE ACT 1932
AMENDED
37. Principal Act
38. Section 197 amended (Power of judges to make Rules of Court)
3
4
JUSTICE AND RELATED LEGISLATION
(FURTHER MISCELLANEOUS AMENDMENTS)
BILL 2009
(Brought in by the Minister for Justice, the Honourable
Larissa Tahireh Giddings)
A BILL FOR
An Act to amend the Corrections Act 1997, the Criminal
Code Act 1924, the Criminal Law (Detention and
Interrogation) Act 1995, the Justices Act 1959, the
Magistrates Court (Civil Division) Act 1992, the Mental
Health Act 1996, the Police Powers (Surveillance Devices)
Act 2006, the Residential Tenancy Act 1997, the Sentencing
Act 1997 and the Supreme Court Civil Procedure Act 1932
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 PRELIMINARY
1. Short title
This Act may be cited as the Justice and Related
Legislation (Further Miscellaneous
Amendments) Act 2009.
[Bill 90] 5
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
s. 2 Part 1 Preliminary
2. Commencement
(1) Except as provided in this section, this Act
commences on the day on which this Act
receives the Royal Assent.
(2) Parts 5 and 10 commence on a day or days to be
proclaimed.
(3) Part 9 is taken to have commenced on
1 July 2009.
3. Repeal of Act
This Act is repealed on the ninetieth day from
the day on which all of the provisions of this Act
commence.
6
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
Part 2 Corrections Act 1997 Amended s. 4
PART 2 CORRECTIONS ACT 1997 AMENDED
4. Principal Act
In this Part, the Corrections Act 1997* is
referred to as the Principal Act.
5. Section 3 amended (Interpretation)
Section 3 of the Principal Act is amended by
inserting after the definition of "disciplinary
officer" the following definition:
"eligible persons register" means the register
kept under section 87A;
6. Section 72 amended (Release on parole)
Section 72 of the Principal Act is amended as
follows:
(a) by omitting from subsection (2A)
"victims register" and substituting
"eligible persons register";
(b) by inserting the following subsection
after subsection (2A):
(2AB) The Secretary may provide to the
Board the name of the parent or
*No. 51 of 1997
7
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
s. 6 Part 2 Corrections Act 1997 Amended
guardian of a victim listed in the
eligible persons register if the
victim
(a) has not attained the age of
18 years; or
(b) is mentally incapable of
making representations on
his or her own behalf.
(c) by omitting from subsection (2B)
"victims register" and substituting
"eligible persons register";
(d) by omitting from subsection (2B) "such
victim" and substituting "such victim or,
if subsection (2AB) applies, the parent or
guardian of the victim";
(e) by omitting from subsection (2B)(b) "the
victim" first occurring and substituting
"the victim or, if subsection (2AB)
applies, the parent or guardian of the
victim";
(f) by omitting from subsection (2C) "a
victim" and substituting "a victim or, if
subsection (2AB) applies, the parent or
guardian of the victim,";
(g) by omitting from subsection (2C)(b) "to
the victim";
8
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
Part 2 Corrections Act 1997 Amended s. 6
(h) by omitting from subsection (2D)
"victims register" and substituting
"eligible persons register";
(i) by omitting from subsection (2E)
"victims" first occurring and substituting
"victims or, if subsection (2AB) applies,
parents or guardians of the victim,";
(j) by omitting from subsection (2E)(a)
"victims" and substituting "persons";
(k) by omitting from subsection (2E)(b)
"victim" and substituting "person";
(l) by omitting from subsection (4)(ka) "a
victim" and substituting "a victim, or, if
subsection (2AB) applies, the parent or
guardian of the victim,";
(m) by omitting from subsection (7A) "a
victim" and substituting "a victim or, if
subsection (2AB) applies, the parent or
guardian of the victim";
(n) by omitting "Sentencing Act 1997;" from
the definition of "restriction order" in
subsection (11) and substituting
"Sentencing Act 1997.";
(o) by omitting the definition of "victims
register" from subsection (11).
9
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
s. 7 Part 2 Corrections Act 1997 Amended
7. Sections 87A and 87B inserted
After section 87 of the Principal Act, the
following sections are inserted in Part 9:
87A. Eligible persons register
(1) The Secretary must keep a register of
persons who are eligible to receive
information, under section 87B, about a
prisoner who has been sentenced to a
period of imprisonment for a violent
offence or a sexual offence.
(2) The following persons may apply to be
listed in the eligible persons register as
an eligible person:
(a) a victim of the offence;
(b) the parent or guardian of a person
referred to in paragraph (a) if that
person
(i) has not attained the age of
18 years; or
(ii) is mentally incapable of
making representations on
his or her behalf;
(c) another person who proves, to the
satisfaction of the Secretary
(i) that the prisoner has been
violent towards that
person; or
10
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
Part 2 Corrections Act 1997 Amended s. 7
(ii) that the person's life or
physical safety could
reasonably be expected to
be endangered because of
a connection between the
person and the offence
that resulted in the
sentence of imprisonment.
(3) An application under this section is to
be
(a) in the form approved by the
Secretary; and
(b) accompanied by proof, to the
satisfaction of the Secretary, of
the identity of the applicant.
(4) The Secretary may accept or refuse an
application under this Part and is to
notify the applicant in writing of the
acceptance or refusal.
(5) The applicant may nominate to the
Secretary a person or organisation to
receive information under section 87B
for, and on behalf of, the applicant.
(6) The Secretary may accept or refuse a
nomination under subsection (5) and is to
notify the applicant in writing of the
acceptance or refusal of the nomination.
(7) In this section
11
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
s. 7 Part 2 Corrections Act 1997 Amended
"sexual offence" has the same
meaning as in the Evidence Act
2001;
"violent offence" means an offence in
which the victim suffers actual or
threatened violence.
87B. Releasing information
(1) If the Secretary reasonably considers it
appropriate, the Secretary may release
information about a prisoner to a person
listed in the eligible persons register in
respect of the prisoner including, but not
limited to, information about any one or
more of the following:
(a) the prisoner's current location;
(b) the prisoner's security
classification;
(c) the prisoner's transfer between
prisons;
(d) the prisoner's eligibility dates for
discharge or release;
(e) the prisoner's date of discharge or
release;
(f) the results of the prisoner's
applications for parole orders;
12
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
Part 2 Corrections Act 1997 Amended s. 7
(g) the death or escape of, or other
exceptional events relating to, the
prisoner.
(2) If a nomination under section 87A(5) has
been accepted under section 87A(6), the
Secretary may give the information to the
person or organisation accepted as
nominee.
13
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
s. 8 Part 3 Criminal Code Act 1924 Amended
PART 3 CRIMINAL CODE ACT 1924 AMENDED
8. Principal Act
In this Part, the Criminal Code Act 1924* is
referred to as the Principal Act.
9. Principal Act amended
Schedule 1 to the Principal Act is amended as
follows:
(a) by inserting the following subsection
after subsection (3) in section 400:
(4) The Associate Judge of the
Supreme Court is to be an
Associate Judge of the Court.
(b) by inserting the following paragraph after
paragraph (b) in section 401(2):
(ba) by leave of the Court, against a
stay of proceedings; or
(c) by inserting in section 410 "or Associate
Judge" after "judge";
(d) by inserting the following section after
section 418:
*No. 69 of 1924
14
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
Part 3 Criminal Code Act 1924 Amended s. 9
418A. Powers of Associate Judge
(1) The following powers of the
Court may be exercised by an
Associate Judge of the Court in
the same manner as they may be
exercised by the Court, and
subject to the same provisions:
(a) the power to extend the
time in which notice of
appeal or of an
application for leave to
appeal may be given;
(b) the power to allow a
person to be present at
any proceedings where he
or she is not entitled to be
present without leave;
(c) the power to give leave
for the withdrawal or
discontinuance of an
appeal;
(d) the power to dismiss an
appeal under
section 402(7);
(e) the power to give
directions.
(2) If an appellant applies to an
Associate Judge under this
section, and the Associate Judge
15
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
s. 9 Part 3 Criminal Code Act 1924 Amended
refuses the application, the
appellant is entitled to have the
application determined by the
Court.
16
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
Part 4 Criminal Law (Detention and Interrogation) Act 1995 Amended s. 10
PART 4 CRIMINAL LAW (DETENTION AND
INTERROGATION) ACT 1995 AMENDED
10. Principal Act
In this Part, the Criminal Law (Detention and
Interrogation) Act 1995* is referred to as the
Principal Act.
11. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended as
follows:
(a) by inserting the following definition after
the definition of "Commissioner":
"correctional officer" has the same
meaning as in the Corrections Act
1997;
(b) by inserting the following definition after
the definition of "legal practitioner":
"reception prison" means a prison, in
any of the following areas, in
respect of which a proclamation
has been made under section 9(2)
of the Corrections Act 1997:
(a) Hobart;
*No. 72 of 1995
17
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
s. 12 Part 4 Criminal Law (Detention and Interrogation) Act 1995 Amended
(b) Launceston.
12. Section 16 amended (Duties of custody officer in
relation to persons in custody)
Section 16 of the Principal Act is amended as
follows:
(a) by omitting from subsection (2)(b)
"station." and substituting "station; or";
(b) by inserting the following paragraph after
paragraph (b) in subsection (2):
(c) to the custody of a correctional
officer of a reception prison.
(c) by omitting from subsection (3)
"subsection (2)" and substituting
"subsection (2)(a) or (b)";
(d) by inserting the following subsection
after subsection (3):
(4) If the custody officer transfers or
permits the transfer of a person in
custody in accordance with
subsection (2)(c), the custody
officer
(a) is to record the transfer as
if it were a transfer to
another custody officer
under section 15; and
18
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
Part 4 Criminal Law (Detention and Interrogation) Act 1995 Amended s. 13
(b) in relation to that person,
ceases to be subject to the
duty imposed on the
custody officer by
subsection (1)(a) other
than the duty imposed by
that subsection in relation
to section 4.
13. Section 17 inserted
After section 16 of the Principal Act, the
following section is inserted:
17. Duties of correctional officer in relation to
persons in custody
(1) In relation to persons in custody who
have been transferred in accordance with
section 16(2)(c), a correctional officer at
a reception prison must ensure that all
persons so transferred are treated in
accordance with any correctional
standing orders referred to in
subsection (2).
(2) The Director of Corrective Services,
within the meaning of the Corrections
Act 1997, may make correctional
standing orders in respect of the welfare,
protection and management of persons in
custody who have been transferred in
accordance with section 16(2)(c).
19
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
s. 13 Part 4 Criminal Law (Detention and Interrogation) Act 1995 Amended
(3) Section 26(3) of the Corrections Act
1997 does not apply to a correctional
officer who has custody of a person by
virtue of section 16(2)(c).
(4) If a request has been made by a police
officer or a custody officer, the
correctional officer who has custody of a
person by virtue of section 16(2)(c) is to
transfer or permit the transfer of that
person to
(a) a police officer referred to in
section 16(2)(a) or (b); or
(b) the custody officer making the
request.
(5) In this section
"correctional standing orders"
means standing orders under
section 6(3) of the Corrections
Act 1997.
20
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
Part 5 Justices Act 1959 Amended s. 14
PART 5 JUSTICES ACT 1959 AMENDED
14. Principal Act
In this Part, the Justices Act 1959* is referred to
as the Principal Act.
15. Section 55 amended (Procedure when brought
before justices)
Section 55(5) of the Principal Act is amended by
omitting "7 weeks" and substituting "4 weeks".
16. Section 72AB inserted
After section 72A of the Principal Act, the
following section is inserted in Part VIII:
72AB. Perverting the course of justice triable
summarily
(1) In this section
"perverting the course of justice
complaint" means a complaint
for an offence under section 105
of the Criminal Code that relates
to an offence under the Traffic
Act 1925, the Vehicle and Traffic
*No. 77 of 1959
21
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
s. 16 Part 5 Justices Act 1959 Amended
Act 1999 or the Road Safety
(Alcohol and Drugs) Act 1970.
(2) If a person is brought before justices
upon a perverting the course of justice
complaint and the justices and prosecutor
agree that the matter is one that should be
tried summarily, the justices, pursuant to
section 55 or 58 and in the prescribed
form of words or in words of similar
effect, may ask the defendant if he or she
is willing to be tried or sentenced by the
justices instead of by jury.
(3) If a defendant to whom subsection (2)
applies, or, if he or she is under the age
of 17 years, his or her parent or guardian,
does not object to his or her being tried
or sentenced by the justices, the section
creating the offence is taken to have
created a simple offence and the
complaint is to be dealt with accordingly,
subject to the provisions of this section.
22
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
Part 6 Magistrates Court (Civil Division) Act 1992 Amended s. 17
PART 6 MAGISTRATES COURT (CIVIL DIVISION)
ACT 1992 AMENDED
17. Principal Act
In this Part, the Magistrates Court (Civil
Division) Act 1992* is referred to as the
Principal Act.
18. Section 28 substituted
Section 28 of the Principal Act is repealed and
the following section is substituted:
28. Appeals to Supreme Court
(1) If any party to a proceeding before the
Court, other than a proceeding in respect
of a minor civil claim, is aggrieved by
any determination, order, ruling or
direction of the Court, that party may
appeal to a judge of the Supreme Court
who may make such orders as the judge
considers appropriate in the
circumstances.
(2) If a party to a proceeding in respect of a
minor civil claim before the Court is
aggrieved by any determination, order,
ruling or direction of the Court, that party
*No. 27 of 1992
23
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
s. 18 Part 6 Magistrates Court (Civil Division) Act 1992 Amended
may appeal to a judge of the Supreme
Court
(a) on one or more of the following
grounds:
(i) that the magistrate lacked
jurisdiction or exceeded
his or her jurisdiction;
(ii) that the party was denied
natural justice in the
course of proceedings; or
(b) if a judge of the Supreme Court
grants leave, on any other ground.
(3) On an appeal under subsection (2), the
judge may make any orders he or she
considers appropriate in the
circumstances.
24
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
Part 7 Mental Health Act 1996 Amended s. 19
PART 7 MENTAL HEALTH ACT 1996 AMENDED
19. Principal Act
In this Part, the Mental Health Act 1996* is
referred to as the Principal Act.
20. Section 3 amended (Interpretation)
Section 3 of the Principal Act is amended as
follows:
(a) by inserting the following definition after
the definition of "Director":
"eligible persons register" has the
same meaning as in the
Corrections Act 1997;
(b) by omitting the definition of "Victims
Register".
21. Section 72P amended (Leave of absence for forensic
patients generally)
Section 72P(7)(a) of the Principal Act is
amended as follows:
(a) by omitting "Victims Register" and
substituting "eligible persons register";
*No. 31 of 1996
25
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
s. 22 Part 7 Mental Health Act 1996 Amended
(b) by omitting "registered in relation to the
forensic patient in that Register" and
substituting "listed in relation to the
forensic patient in that register".
22. Section 72Q amended (Leave of absence for forensic
patients on restriction orders)
Section 72Q(6)(a) of the Principal Act is
amended as follows:
(a) by omitting "Victims Register" and
substituting "eligible persons register";
(b) by omitting "registered in relation to the
forensic patient in that Register" and
substituting "listed in relation to the
forensic patient in that register".
23. Section 72R amended (Notification of victims)
Section 72R of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)
"registered in the Victims Register" and
substituting "listed in the eligible persons
register";
(b) by omitting from subsection (2)
"registered in the Victims Register" and
substituting "listed in the eligible persons
register".
26
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
Part 7 Mental Health Act 1996 Amended s. 24
24. Section 73P amended (Notifying persons of release)
Section 73P of the Principal Act is amended as
follows:
(a) by omitting "Victims Register and notify
any victim registered in relation to the
forensic patient in that Register" and
substituting "eligible persons register and
notify any person listed in that register in
relation to the forensic patient";
(b) by omitting "victim" second occurring
and substituting "person".
27
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
s. 25 Part 8 Police Powers (Surveillance Devices) Act 2006 Amended
PART 8 POLICE POWERS (SURVEILLANCE
DEVICES) ACT 2006 AMENDED
25. Principal Act
In this Part, the Police Powers (Surveillance
Devices) Act 2006* is referred to as the Principal
Act.
26. Section 8 substituted
Section 8 of the Principal Act is repealed and the
following section is substituted:
8. Who may issue warrants?
(1) The Supreme Court may issue any
warrant under this Part.
(2) A magistrate may issue
(a) a surveillance device warrant,
other than a warrant that
authorises the use of a
surveillance device outside
Tasmania; or
(b) a retrieval warrant in respect of a
surveillance device authorised
under a warrant referred to in
paragraph (a).
*No. 22 of 2006
28
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
Part 8 Police Powers (Surveillance Devices) Act 2006 Amended s. 27
27. Section 9 amended (Application for surveillance
device warrant)
Section 9 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1)(c) "in this
jurisdiction, in this and one or more
participating jurisdictions or in one or
more participating jurisdictions" after
"device";
(b) by omitting paragraph (b) from
subsection (2) and substituting the
following paragraph:
(b) a magistrate in the case of an
application for a surveillance
device warrant that authorises the
use, only in this jurisdiction, of a
device for the purpose of
investigating a relevant offence.
29
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
s. 28 Part 9 Residential Tenancy Act 1997 Amended
PART 9 RESIDENTIAL TENANCY ACT 1997
AMENDED
28. Principal Act
In this Part, the Residential Tenancy Act 1997*
is referred to as the Principal Act.
29. Section 17 amended (Money other than rent)
Section 17(4) of the Principal Act is amended by
omitting "council" from the definition of "water
consumption charge" and substituting "regulated
entity, within the meaning of the Water and
Sewerage Industry Act 2008,".
*No. 82 of 1997
30
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
Part 10 Sentencing Act 1997 Amended s. 30
PART 10 SENTENCING ACT 1997 AMENDED
30. Principal Act
In this Part, the Sentencing Act 1997* is referred
to as the Principal Act.
31. Section 24 substituted
Section 24 of the Principal Act is repealed and
the following section is substituted:
24. Suspended sentence to be conditional
(1) If a court makes an order suspending the
whole or a part of a sentence of
imprisonment, the order is subject to the
following conditions during the period
the order suspending the sentence of
imprisonment is in force:
(a) that the offender does not commit
another offence punishable by
imprisonment;
(b) that the offender report within
one clear working day to a
probation officer at the place
specified in the order;
(c) that the offender must not leave,
or stay outside, the State without
*No. 59 of 1997
31
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
s. 31 Part 10 Sentencing Act 1997 Amended
the permission of a probation
officer;
(d) that the offender must notify a
probation officer of a change in
the offender's residence or
employment before, or within 2
working days after, the change
occurs.
(2) In addition to the conditions specified in
subsection (1), an order suspending the
whole or a part of a sentence of
imprisonment may be subject to any one
or more of the following conditions:
(a) that the offender is to perform
community service;
(b) that the offender is subject to the
supervision of a probation officer;
(c) that the offender is required to
undertake a rehabilitation
program;
(d) any other condition as the court
considers necessary or expedient.
(3) A condition imposed under
subsection (1) or (2) may in itself be
made subject to any condition as the
court considers necessary or expedient.
(4) If a suspended sentence is made
conditional on the performance of
32
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
Part 10 Sentencing Act 1997 Amended s. 31
community service, the following
sections apply with such modifications as
are necessary and, in particular, a
reference to a community service order
in those sections is taken to be a
reference to the condition imposing
community service:
(a) section 28(c), (d) and (g);
(b) sections 30, 31, 32 and 33;
(c) section 34(a);
(d) section 36A.
(5) If a suspended sentence is made
conditional on supervision of the
offender by a probation officer, the
following sections apply with such
modifications as are necessary and, in
particular, a reference to a probation
order in those sections is taken to be a
reference to the condition imposing
probation:
(a) section 37(1)(c), (d) and (f);
(b) section 37(2) and (3);
(c) sections 38, 39 and 40.
(6) Nothing in this section is intended to
affect the operation of section 8(1).
33
Justice and Related Legislation (Further Miscellaneous
Amendments) Act 2009
Act No. of
s. 32 Part 10 Sentencing Act 1997 Amended
32. Section 27 amended (Breach of order suspending
sentence)
Section 27 of the Principal Act is amended as
follows:
(a) by omitting subsection (1) and
substituting the following subsection:
(1) If it appears to an authorised
person that, during the period an
order suspending a sentence of
imprisonment is in force in
relation to an offender, the
offender has breached a condition
of the suspended sentence, the
authorised person may apply to
the court, which made the order
suspending the sentence of
imprisonment, for an order under
this section.
(b) by inserting in subsection (2) "under
subsection (1)" after "application";
(c) by omitting subsection (4) and
substituting the following subsections:
(4) If a court finds an offender guilty
of an offence punishable by
imprisonment committed during
the period an order suspending a
sentence of imprisonment is in
force in respect of the offender
(in this section called the "new
offence"), an authorised person
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(a) may make an oral
application to the court,
while the offender is
before the court in
relation to the new
offence, for an order
under this section; and
(b) is to provide the offender
in writing with the
grounds for the oral
application, if directed to
do so by the court.
(4A) If an application is made under
subsection (4) to a court that is
not the court that imposed the
suspended sentence on the
offender, the court hearing the
application may do either of the
following:
(a) deal with the application
under this section;
(b) adjourn the application to
the court that imposed the
suspended sentence and
either grant the offender
bail or remand the
offender in custody.
(4B) If, on the hearing of an
application under this section, the
court is satisfied that the offender
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has been found guilty of a new
offence, the court must activate
the sentence of imprisonment that
is held in suspense and order the
offender to serve it.
(4C) If the court is of the opinion that
an order under subsection (4B)
would be unjust due to the
exceptional circumstances which
have arisen after the order
suspending the sentence was
made, the court may instead
(a) activate part of the
sentence that is held in
suspense and order the
offender to serve it; or
(b) order that a sentence (in
this section called the
"substituted sentence")
take effect in place of the
suspended sentence; or
(c) by order, vary the
conditions on which the
execution of the sentence
was suspended, including
extending the period of
suspension in the order to
a day no later than 12
months after the day the
offender was found guilty
of the new offence; or
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(d) make no order in respect
of the suspended
sentence.
(4D) If the court decides not to
exercise the power referred to in
subsection (4B) it must state the
reasons for so deciding.
(4E) If, on the hearing of an
application under this section, the
court is satisfied that the offender
has breached, without reasonable
excuse, a condition of the
suspended sentence other than by
committing a new offence, the
court may
(a) activate all or part of the
sentence that is held in
suspense and order the
offender to serve it; or
(b) order that a sentence (in
this section called the
"substituted sentence")
take effect in place of the
suspended sentence; or
(c) by order, vary the
conditions on which the
execution of the sentence
was suspended, including
extending the period of
suspension in the order to
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a day no later than 12
months after the day the
offender was found guilty
of the breach; or
(d) make no order in respect
of the suspended
sentence.
(d) by omitting from subsection (6A)
"subsection (4)(a)" and substituting
"subsection (4B), (4C) or (4E)";
(e) by omitting from subsection (6B)
"subsection (4)(b)" and substituting
"subsection (4C) or (4E)";
(f) by omitting subsection (7) and
substituting the following subsection:
(7) If it is not possible for the court to
immediately deal with an
application under subsection (1)
or (4) in respect of the offender,
the court may
(a) adjourn the proceedings;
and
(b) either grant the offender
bail or remand the
offender in custody.
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33. Section 36 substituted
Section 36 of the Principal Act is repealed and
the following sections are substituted:
36. Breach of community service order
(1) If it appears to an authorised person that,
during the period a community service
order is in force in relation to an
offender, the offender has breached a
condition of the community service
order, the authorised person may apply to
the court, which made the community
service order, for an order under this
section.
(2) The authorised person must give notice
of the application under subsection (1) to
the offender.
(3) The court may order that a warrant to
arrest be issued against the offender if the
offender does not attend before the court
on the hearing of the application.
(4) If a court finds an offender guilty of an
offence punishable by imprisonment
committed during the period a
community service order is in force in
respect of the offender (in this section
called the "new offence"), an authorised
person
(a) may make an oral application to
the court, while the offender is
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before the court in relation to the
new offence, for an order under
this section; and
(b) is to provide the offender in
writing with the grounds for the
oral application, if directed to do
so by the court.
(5) If an application is made under
subsection (4) to a court that is not the
court that imposed the community
service order on the offender, the court
hearing the application may do either of
the following:
(a) deal with the application under
this section;
(b) adjourn the application to the
court that imposed the
community service order and
either grant the offender bail or
remand the offender in custody.
(6) If, on the hearing of an application under
this section, the court is satisfied that the
offender has breached a community
service order, it may
(a) confirm the order as originally
made; or
(b) increase the number of hours of
community service that the
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offender is required to perform
under the order; or
(c) cancel the order and deal with the
offender for the offence or
offences in respect of which it
was made in any manner in which
the court could deal with the
offender had it just found the
offender guilty of that offence or
those offences; or
(d) cancel the order and, if it
considers it appropriate, any other
order made by the court in respect
of the offence in respect of which
the community service order was
made, and deal with the offender
for that offence in any manner in
which the court could deal with
the offender had it just found the
offender guilty of that offence.
(7) In determining how to deal with an
offender who is found to have breached a
community service order under this
section, the court must take into account
the extent to which the offender had
complied with the community service
order before committing the breach.
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36AA. Offences relating to community service
orders
(1) An offender who is subject to a
community service order who assaults,
threatens, insults or uses abusive
language to a probation officer or
supervisor is guilty of an offence.
Penalty: Fine not exceeding 10 penalty
units or imprisonment for a term
not exceeding 3 months, or both.
(2) A person is guilty of an offence if he or
she
(a) disturbs or interferes with a
person performing an activity
under a community service order;
or
(b) prevents a person from
performing such an activity.
Penalty: Fine not exceeding 10 penalty
units or imprisonment for a term
not exceeding 3 months, or both.
34. Section 42 substituted
Section 42 of the Principal Act is repealed and
the following sections are substituted:
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42. Breach of probation order
(1) If it appears to an authorised person that,
during the period a probation order is in
force in relation to an offender, the
offender has breached a condition of the
probation order, the authorised person
may apply to the court, which made the
probation order, for an order under this
section.
(2) The authorised person must give notice
of the application under subsection (1) to
the offender.
(3) The court may order that a warrant to
arrest be issued against the offender if the
offender does not attend before the court
on the hearing of the application.
(4) If a court finds an offender guilty of an
offence punishable by imprisonment
committed during the period a probation
order is in force in respect of the offender
(in this section called the "new offence"),
an authorised person
(a) may make an oral application to
the court, while the offender is
before the court in relation to the
new offence, for an order under
this section; and
(b) is to provide the offender in
writing with the grounds for the
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oral application, if directed to do
so by the court.
(5) If an application is made under
subsection (4) to a court that is not the
court that imposed the probation order on
the offender, the court hearing the
application may do either of the
following:
(a) deal with the application under
this section;
(b) adjourn the application to the
court that imposed the probation
order and either grant the
offender bail or remand the
offender in custody.
(6) If, on the hearing of an application under
this section, the court is satisfied that the
offender has breached the probation
order, it may
(a) confirm the order as originally
made; or
(b) increase the period during which
the order has effect; or
(c) vary the special conditions to
which the order is subject; or
(d) cancel the order and deal with the
offender for the offence or
offences in respect of which the
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order was made in any manner in
which the court could deal with
the offender had it just found the
offender guilty of that offence or
those offences; or
(e) cancel the order and, if it
considers it appropriate, any other
order made by the court in respect
of the offence in respect of which
the probation order was made,
and deal with the offender for that
offence in any manner in which
the court could deal with the
offender had it just found the
offender guilty of that offence.
(7) If the period during which a probation
order has effect is increased under
subsection (6), the court is not to extend
that period so that it continues for more
than the relevant period in section 39.
(8) In determining how to deal with an
offender who is found to have breached a
probation order under this section, the
court must take into account the extent to
which the offender had complied with
the probation order before committing
the breach.
42A. Offence relating to a probation order
An offender who is subject to a probation
order who assaults, threatens, insults or
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uses abusive language to a probation
officer is guilty of an offence.
Penalty: Fine not exceeding 10 penalty
units or imprisonment for a term
not exceeding 3 months, or both.
35. Section 54A substituted
Section 54A of the Principal Act is repealed and
the following section is substituted:
54A. Contravention of rehabilitation program
order
(1) If it appears to an authorised person that,
during the period a rehabilitation
program order is in force in relation to an
offender, the offender has breached a
condition of the rehabilitation program
order, the authorised person may apply to
the court, that made the rehabilitation
program order, for an order under this
section.
(2) The authorised person must give notice
of the application under subsection (1) to
the offender.
(3) The court may order that a warrant to
arrest be issued against the offender if the
offender does not attend before the court
on the hearing of the application.
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(4) If a court finds an offender guilty of an
offence punishable by imprisonment
committed during the period a
rehabilitation program order is in force in
respect of the offender (in this section
called the "new offence"), an authorised
person
(a) may make an oral application to
the court, while the offender is
before the court in relation to the
new offence, for an order under
this section; and
(b) is to provide the offender in
writing with the grounds for the
oral application, if directed to do
so by the court.
(5) If an application is made under
subsection (4) to a court that is not the
court that imposed the rehabilitation
program order on the offender, the court
hearing the application may do either of
the following:
(a) deal with the application under
this section;
(b) adjourn the application to the
court that imposed the
rehabilitation program order and
either grant the offender bail or
remand the offender in custody.
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(6) If, on the hearing of an application under
this section, the court is satisfied that the
offender has breached, without
reasonable excuse, the rehabilitation
program order or committed the new
offence, the court may
(a) order the offender to resume
undertaking the program; or
(b) cancel the rehabilitation program
order and deal with the offender
in any manner in which the court
could deal with the offender had
it just found the offender guilty of
the offence which gave rise to the
order.
(7) In determining how to deal with an
offender found guilty of a breach of a
rehabilitation program order under this
section, the court must take into account
the extent to which the offender had
undertaken the rehabilitation program
before committing the breach.
36. Section 68 amended (Compensation order)
Section 68(9) of the Principal Act is amended by
inserting "compensation for injury," after
"amount of".
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Part 11 Supreme Court Civil Procedure Act 1932 Amended s. 37
PART 11 SUPREME COURT CIVIL PROCEDURE
ACT 1932 AMENDED
37. Principal Act
In this Part, the Supreme Court Civil Procedure
Act 1932* is referred to as the Principal Act.
38. Section 197 amended (Power of judges to make
Rules of Court)
Section 197(1)(f) of the Principal Act is
amended by omitting "except in relation to "
and substituting "except for the determination
and hearing of ".
*No. 58 of 1932
Government Printer, Tasmania 49