Public Safety (Public Protection Orders) (Drug and Alcohol Testing) Amendment Act 2016

1: Title
This Act is the Public Safety (Public Protection Orders) (Drug and Alcohol Testing) Amendment Act 2016.
2: Commencement
1: This Act comes into force on the earlier of the following:
a: a date appointed by the Governor-General by Order in Council:
b: the day immediately after the expiry of the 6-month period.
2: The 6-month period
3: Principal Act
This Act amends the Public Safety (Public Protection Orders) Act 2014 principal Act 2017-05-15 Public Safety (Public Protection Orders) Act 2014 May be brought into force earlier by OIC.
4: Section 3 amended (Interpretation)
1: In section 3 controlled drug medical practitioner precursor substance psychoactive substance
2: In section 3 prohibited item
c: any controlled drugs and precursor substances, except for medicines prescribed for the resident under the Medicines Act 1981:
d: any psychoactive substance:
5: New section 92A inserted (Interpretation)
In Part 1
92A: Interpretation
In this subpart, unless the context otherwise requires,— bodily sample
a: a sample of a person’s blood, breath, hair, or urine; or
b: any other sample of a similar kind from the person drug or alcohol monitoring device
a: a controlled drug used by the person:
b: a psychoactive substance used by the person:
c: alcohol consumed by the person drug or alcohol requirement
a: using a controlled drug (other than a medicine prescribed for the person under the Medicines Act 1981):
b: using a psychoactive substance:
c: consuming alcohol medical laboratory technologist medical officer
a: a person acting in a hospital who, in the normal course of the person's duties, takes blood specimens; or
b: a nurse; or
c: a medical laboratory technologist nurse testing
6: New sections 95A to 95E and cross-headings inserted
After section 95 Drug or alcohol requirements
95A: Imposition, and effect, of drug or alcohol requirement
1: This section applies if a court imposes a drug or alcohol requirement on a person subject to a protective supervision order.
2: The court cannot direct, indicate, or require that the person subject to the order undergo or submit to drug or alcohol testing or continuous monitoring, but the requirement means that the person must comply with all directions arising from an authorised person giving the person notice under section 95B(2)
3: The court must advise the person that the person must do any 1 or more of the following things if directed to do so by notice given by an authorised person under section 95B(2)
a: undergo testing for a controlled drug, a psychoactive substance, or alcohol:
b: submit to continuous monitoring of the person's compliance with the drug or alcohol requirement through a drug or alcohol monitoring device connected to the person’s body:
c: contact an automated system, and undergo testing for a controlled drug, a psychoactive substance, or alcohol if required by a response notice given by the automated system.
95B: Person with drug or alcohol requirement may be directed to undergo testing or submit to continuous monitoring
1: This section applies to a person who is subject to a protective supervision order with a drug or alcohol requirement.
2: An authorised person may, by notice given to a person to whom this section applies, direct the person to do any 1 or more of the following:
a: undergo testing for a controlled drug, a psychoactive substance, or alcohol using a testing procedure prescribed in rules made under section 103C(a)
b: submit, during a reasonable period specified in the notice, to continuous monitoring of the person's compliance with the drug or alcohol requirement through a drug or alcohol monitoring device of a type prescribed in rules made under section 103C(d)
c: contact, in 1 or more specified reasonably practicable ways, during 1 or more specified periods on specified days, a specified automated system and, if required by a response notice given by the automated system, undergo testing for a controlled drug, a psychoactive substance, or alcohol, using a specified testing procedure prescribed in rules made under section 103C(a)
3: An authorised person exercising that person’s discretion under subsection (2)—
a: must comply with any rules made under section 103C; and
b: may—
i: select a person to do what is specified in subsection (2)﻿(a), (b), or (c) in any manner (including randomly); and
ii: make a determination in respect of the person with or without evidence that the person has breached the condition; and
c: must, if directing the person to do what is specified in subsection (2)﻿(a) or (c), determine the prescribed testing procedure to be used for the testing the person is directed to do under subsection (2)﻿(a), or required if the person is selected to undergo testing by an automated system that the person is directed to contact under subsection (2)﻿(c).
4: A notice given to a person under subsection (2)﻿(b) may include a direction that the person comply with instructions specified in the notice that are reasonably necessary for the effective administration of the continuous monitoring (for example, an instruction to charge the monitoring device regularly or protect it from events, such as submersion in water, that may damage it or interfere with its functioning).
5: An automated system specified in a notice given under subsection (2)﻿(c) must include an automated selection method that determines, in any manner consistent with rules made under section 103C(b) (including randomly), whether the person is required to undergo testing.
6: Only a medical practitioner or medical officer may collect a blood sample from a person under this section.
7: In this section and in sections 95C to 95E and 103A authorised person
a: a constable; or
b: an employee of the department authorised by the chief executive to direct persons to whom this section applies to undergo testing or monitoring.
95C: How notice of direction to undergo testing or to submit to continuous monitoring may be given
1: An authorised person may give a person to whom section 95B
a: by giving the notice personally and in writing to the person:
b: by giving the notice personally and orally to the person, then, unless the notice directs the person only to undergo breath screening, as soon as practicable recording it in writing and giving a copy to the person:
c: if the notice is given under section 95B(2)﻿(a), by giving the notice to the person by telephone or other means of electronic communication (as defined in section 5 of the Electronic Transactions Act 2002), then as soon as practicable recording it in writing (if it is not already in writing) and giving a copy to the person.
2: An automated system must, in response to a person contacting it as directed by a notice given under section 95B(2)﻿(c) and subsection (1), give the person a spoken or written response notice specifying whether the person is required to undergo testing.
3: A notice given by an authorised person under subsection (1)﻿(c), or a response notice that is given by an automated system under subsection (2) and that requires a person to undergo testing, must specify the name and location of a testing facility to which the person is required to report to undergo testing, and the time or times when the person is required to report, under section 95D.
95D: Where prescribed testing procedure may be carried out
1: An authorised person may require a person to whom section 95B section 95B(2)
2: Subsection (1)
a: a public place (as defined in section 2(1) of the Summary Offences Act 1981); or
b: a place that is wholly or partly outside a dwelling house, or any other building, at the person’s residential address.
3: However, a person cannot be required to undergo a prescribed testing procedure in a place specified in subsection (2)﻿(a) (b)
4: A person given notice personally (in writing or orally) by the authorised person may be required by the authorised person, if subsection (3) applies or if it is not reasonably practicable to require the person to undergo testing at the place where the person is given notice, to accompany the authorised person to any other place where it is likely that it will be reasonably practicable for the person to undergo testing.
5: A person given a notice under section 95C(1)﻿(c) or (2) that requires the person to undergo testing is required to report to the testing facility whose name and location are specified in the notice, at the time or times specified, to undergo testing.
95E: Information obtained from drug and alcohol testing or monitoring
1: Information obtained following a direction under section 95B(2)
a: may be used for all or any of the following purposes:
i: verifying compliance by the person with the drug or alcohol requirement:
ii: detecting non-compliance by the person with the drug or alcohol requirement, and providing evidence of that non-compliance:
iii: verifying that the person has not tampered or otherwise interfered with a drug or alcohol monitoring device:
iv: any purpose for which the person has requested to use the information or consented to its use; and
b: must not, except at the request or with the consent of the person, be used—
i: as evidence that the person committed an offence, other than an offence against section 103, 103A 103B
ii: for any other purpose not listed in paragraph (a)
2: A court may, in the absence of evidence that is available to the court and that is to the contrary effect, presume that any information that an authorised person has certified in writing was obtained from a prescribed testing procedure or a drug or alcohol monitoring device—
a: is accurate; and
b: was obtained in the manner required by sections 95B to 95D Variation of requirements
7: New cross-heading above section 99 inserted
After section 98 Review of order
8: New cross-heading above section 103 inserted
After section 102 Offences
9: New sections 103A to 103E and cross-heading inserted
After section 103
103A: Offences related to drug or alcohol requirements
1: A person who is subject to a protective supervision order with a drug or alcohol requirement commits an offence if the person—
a: refuses or fails, without reasonable excuse,—
i: to undergo a testing procedure when directed to do so under section 95B(2)﻿(a)
ii: to submit to continuous monitoring when directed to do so under section 95B(2)﻿(b)
iii: to accompany an authorised person, when required to do so under section 95D(4)
iv: to contact a specified automated system when directed to do so under section 95B(2)﻿(c); or
v: to report, at any time or times when required to do so under section 95D(5), to a specified testing facility to undergo testing; or
vi: to undergo a testing procedure when required to do so under sections 95B(2)﻿(c) and 95D; or
b: does anything with the intention of diluting or contaminating a bodily sample required under section 95B(2)﻿(a) or (c)
c: tampers with a drug or alcohol monitoring device required under section 95B(2)﻿(b)
2: A person who commits an offence against this section is liable on conviction to imprisonment for a term not exceeding 2 years.
103B: Offence to refuse authorised person entry to residential address
1: This section applies to a person who is—
a: subject to a protective supervision order with a drug or alcohol requirement; and
b: directed, under section 95B(2)﻿(b)
2: A person to whom this section applies commits an offence if the person refuses or fails, without reasonable excuse, to allow an authorised person to enter the person’s residential address for all or any of the following purposes:
a: attaching a drug or alcohol monitoring device to, or removing the device from, the person:
b: servicing or inspecting the device:
c: installing, removing, servicing, or inspecting any equipment necessary for the operation of the device.
3: A person who commits an offence against this section is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $5,000.
4: In subsection (2) authorised person
a: an authorised person (as defined in section 95B(7)
b: a person accompanying a person described in paragraph (a)
c: a person who—
i: has produced evidence of that person’s identity to the person to whom this section applies; and
ii: is authorised in writing by an authorised person (as defined in section 95B(7)
A: attaching a drug or alcohol monitoring device to, or removing the device from, the person:
B: servicing or inspecting the device:
C: installing, removing, servicing, or inspecting any equipment necessary for the operation of the device; and
iii: has produced that written authority to the person to whom this section applies. Rules
103C: Rules about testing and monitoring of persons with drug or alcohol requirements
The chief executive may, by notice in the Gazette
a: prescribing, for the purposes of section 95B(2)﻿(a) and (c) section 95B
b: specifying how often each of the prescribed testing procedures may be carried out:
c: prohibiting authorised persons from directing a person to whom section 95B
d: prescribing, for the purposes of section 95B(2)﻿(b) section 95B
e: specifying restrictions as to how often, and for how long,—
i: continuous monitoring may be carried out:
ii: a person may be required to contact an automated system:
f: prescribing, for any 1 or more of the following, minimum levels that must be present in a bodily sample collected from a person in order for the sample to be used as evidence that the person has breached a drug or alcohol requirement:
i: controlled drugs:
ii: psychoactive substances:
iii: alcohol.
103D: Further provisions concerning rules made under section 103C
1: Rules made under section 103C(a)
a: include, as part of the procedure, either or both of the following:
i: breath screening:
ii: the collection and analysis of a bodily sample:
b: require a person to be supervised by another person of the same sex during the collection of a bodily sample required for testing:
c: provide for a person to elect, if the person meets in advance all actual and reasonable costs, to have part of a bodily sample (or 1 bodily sample from a set of samples collected at the same time) independently tested in a manner prescribed in the rules.
2: The chief executive may make rules under section 103C
a: prescribe testing procedures that are no more intrusive than is reasonably necessary to ensure compliance with a drug or alcohol requirement; and
b: allow for persons with drug or alcohol requirements to be tested no more often than is reasonably necessary to ensure compliance with the requirement; and
c: ensure that persons liable to testing and monitoring are afforded as much privacy and dignity as is reasonably practicable.
3: Subsection (1)﻿(b) subsection (2)﻿(c)
103E: Availability of rules made under section 103C and status under Legislation Act 2012
1: The chief executive must ensure that any rules made under section 103C
a: on an Internet site that is maintained by or on behalf of the department and that is, so far as practicable, publicly available free of charge; and
b: for public inspection free of charge; and
c: for purchase at a reasonable price.
2: Rules made under section 103C