Sentencing (Drug and Alcohol Testing) Amendment Act 2016

1: Title
This Act is the Sentencing (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 Sentencing Act 2002 principal Act 2017-05-15 Sentencing Act 2002 May be brought into force earlier by OIC. See section 2(1)﻿(a). Interpretation
4: Section 4 amended (Interpretation)
In section 4(1) bodily sample
a: a sample of the person’s blood, breath, hair, or urine; or
b: any other sample of a similar kind from the person controlled drug drug or alcohol condition
a: that is imposed under section 52(2)﻿(bb) 54I(3)﻿(ba) 80D(4)﻿(ca)
b: that prohibits an offender from doing 1 or more of the following:
i: using (as defined in this section) a controlled drug:
ii: using a psychoactive substance:
iii: consuming alcohol 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 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 medical practitioner nurse post-imprisonment condition psychoactive substance testing using
5: New section 4A inserted (Transitional, savings, and related provisions)
Section 5 repealed 15 May 2017 section 18(2) Supervision
6: Section 52 amended (Other special conditions)
1: After section 52(2)﻿(ba)
bb: conditions prohibiting the offender from doing 1 or more of the following:
i: using (as defined in section 4(1)) a controlled drug:
ii: using a psychoactive substance:
iii: consuming alcohol:
2: After section 52(3A)
3B: However, subsection (3A) does not prevent the court from imposing a drug or alcohol condition, which would mean that the offender may be required, under section 80ZO(2)﻿(b) Intensive supervision
7: Section 54I amended (Other special conditions)
1: After section 54I(3)﻿(b)
ba: conditions prohibiting the offender from doing 1 or more of the following:
i: using (as defined in section 4(1)) a controlled drug:
ii: using a psychoactive substance:
iii: consuming alcohol:
2: Section 7(2) repealed 15 May 2017 section 18(2) Offence: supervision
8: New section 70AA inserted (Offences related to sentences of supervision with drug or alcohol conditions)
After section 70
70AA: Offences related to sentences of supervision with drug or alcohol conditions
An offender who is subject to a sentence of supervision with a drug or alcohol condition commits an offence, and is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $1,000, if the offender—
a: refuses or fails, without reasonable excuse,—
i: to undergo a testing procedure when required to do so under sections 80ZO(2)﻿(a) 80ZQ
ii: to submit to continuous monitoring when required to do so under section 80ZO(2)﻿(b)
iii: to comply with instructions specified in a notice given under section 80ZO(2)﻿(b)
iv: to accompany an authorised person, when required to do so under section 80ZQ(4)
v: to contact a specified automated system when required to do so under section 80ZO(2)﻿(c); or
vi: to report, at any time or times when required to do so under section 80ZQ(5)
vii: to undergo a testing procedure when required to do so under sections 80ZO(2)﻿(c) and 80ZQ; or
b: does anything with the intention of diluting or contaminating a bodily sample required under section 80ZO(2)﻿(a) or (c)
c: tampers with a drug or alcohol monitoring device required under section 80ZO(2)﻿(b) Offence: intensive supervision
9: New section 70B inserted (Offences related to sentences of intensive supervision with drug or alcohol conditions)
After section 70A
70B: Offences related to sentences of intensive supervision with drug or alcohol conditions
An offender who is subject to a sentence of intensive supervision with a drug or alcohol condition commits an offence, and is liable on conviction to imprisonment for a term not exceeding 6 months or to a fine not exceeding $1,500, if the offender—
a: refuses or fails, without reasonable excuse,—
i: to undergo a testing procedure when required to do so under sections 80ZO(2)﻿(a) 80ZQ
ii: to submit to continuous monitoring when required to do so under section 80ZO(2)﻿(b)
iii: to comply with instructions specified in a notice given under section 80ZO(2)﻿(b)
iv: to accompany an authorised person, when required to do so under section 80ZQ(4)
v: to contact a specified automated system when required to do so under section 80ZO(2)﻿(c); or
vi: to report, at any time or times when required to do so under section 80ZQ(5), to a specified testing facility to undergo testing; or
vii: to undergo a testing procedure when required to do so under sections 80ZO(2)﻿(c) and 80ZQ; or
b: does anything with the intention of diluting or contaminating a bodily sample required under section 80ZO(2)﻿(a) or (c)
c: tampers with a drug or alcohol monitoring device required under section 80ZO(2)﻿(b) Home detention
10: Section 80D amended (Special conditions of sentence of home detention)
After section 80D(4)﻿(c)
ca: conditions prohibiting the offender from doing 1 or more of the following:
i: using (as defined in section 4(1)) a controlled drug:
ii: using a psychoactive substance:
iii: consuming alcohol:
11: Section 80P amended (Special post-detention conditions)
1: After section 80P(2)﻿(b)
ba: conditions prohibiting the offender from doing 1 or more of the following:
i: using (as defined in section 4(1)) a controlled drug:
ii: using a psychoactive substance:
iii: consuming alcohol:
2: After section 80P(4)
4A: However, subsection (4) does not prevent the court from imposing a drug or alcohol condition, which would mean that the offender may be required, under section 80ZO(2)﻿(b) Offences: home detention
12: New section 80SA inserted (Offences related to sentences of home detention with drug or alcohol conditions)
After section 80S
80SA: Offences related to sentences of home detention with drug or alcohol conditions
An offender who is subject to a sentence of home detention with a drug or alcohol condition commits an offence, and is liable on conviction to imprisonment for a term not exceeding 1 year or to a fine not exceeding $2,000, if the offender—
a: refuses or fails, without reasonable excuse,—
i: to undergo a testing procedure when required to do so under sections 80ZO(2)﻿(a) 80ZQ
ii: to submit to continuous monitoring when required to do so under section 80ZO(2)﻿(b)
iii: to comply with instructions specified in a notice given under section 80ZO(2)﻿(b)
iv: to accompany an authorised person, when required to do so under section 80ZQ(4)
v: to contact a specified automated system when required to do so under section 80ZO(2)﻿(c); or
vi: to report, at any time or times when required to do so under section 80ZQ(5), to a specified testing facility to undergo testing; or
vii: to undergo a testing procedure when required to do so under sections 80ZO(2)﻿(c) and 80ZQ; or
b: does anything with the intention of diluting or contaminating a bodily sample required under section 80ZO(2)﻿(a) or (c)
c: tampers with a drug or alcohol monitoring device required under section 80ZO(2)﻿(b)
13: New section 80UA inserted (Offences related to post-detention conditions that are drug or alcohol conditions)
After section 80U
80UA: Offences related to post-detention conditions that are drug or alcohol conditions
An offender who is subject to a post-detention condition that is a drug or alcohol condition commits an offence, and is liable on conviction to imprisonment for a term not exceeding 6 months or to a fine not exceeding $1,500, if the offender—
a: refuses or fails, without reasonable excuse,—
i: to undergo a testing procedure when required to do so under sections 80ZO(2)﻿(a) 80ZQ
ii: to submit to continuous monitoring when required to do so under section 80ZO(2)﻿(b)
iii: to comply with instructions specified in a notice given under section 80ZO(2)﻿(b)
iv: to accompany an authorised person, when required to do so under section 80ZQ(4)
v: to contact a specified automated system when required to do so under section 80ZO(2)﻿(c); or
vi: to report, at any time or times when required to do so under section 80ZQ(5), to a specified testing facility to undergo testing; or
vii: to undergo a testing procedure when required to do so under sections 80ZO(2)﻿(c) and 80ZQ; or
b: does anything with the intention of diluting or contaminating a bodily sample required under section 80ZO(2)﻿(a) or (c)
c: tampers with a drug or alcohol monitoring device required under section 80ZO(2)﻿(b) Conditions, offences, and rules related to community-based offenders
14: New subpart 2C of Part 2 inserted
After section 80ZM
2C: Drug or alcohol conditions
80ZN: Imposition, and effect, of drug or alcohol condition
1: This section applies if a court imposes a drug or alcohol condition on an offender under section 52(2)﻿(bb) 54I(3)﻿(ba) 80D(4)﻿(ca)
2: The court cannot direct, indicate, or require that the offender undergo or submit to drug or alcohol testing or continuous monitoring, but the condition requires the offender to comply with all requirements arising from an authorised person giving the offender notice under section 80ZO(2)
3: The court must advise the offender that the offender must do any 1 or more of the following things if required to do so by notice given by an authorised person under section 80ZO(2)
a: undergo testing for a controlled drug, a psychoactive substance, or alcohol:
b: submit to continuous monitoring of the offender's compliance with the drug or alcohol condition through a drug or alcohol monitoring device connected to the offender’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.
80ZO: Offender with drug or alcohol condition may be required to undergo testing or submit to continuous monitoring
1: This section applies to an offender who is—
a: subject to a sentence of supervision, intensive supervision, or home detention with a drug or alcohol condition; or
b: subject to a post-detention condition or a post-imprisonment condition that is a drug or alcohol condition.
2: An authorised person may, by notice given to an offender to whom this section applies, require the offender 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 80ZT(1)﻿(a)
b: submit, during a reasonable period specified in the notice, to continuous monitoring of the offender's compliance with the drug or alcohol condition through a drug or alcohol monitoring device of a type prescribed in rules made under section 80ZT(1)﻿(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 80ZT(1)﻿(a)
3: An authorised person exercising that person’s discretion under subsection (2)—
a: must comply with any rules made under section 80ZT; and
b: may—
i: select an offender 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 offender with or without evidence that the offender has breached the condition; and
c: must, if requiring the offender to do what is specified in subsection (2)﻿(a) or (c), determine the prescribed testing procedure to be used for the testing required under subsection (2)﻿(a), or required if the offender is selected to undergo testing by an automated system that the offender is required to contact under subsection (2)﻿(c).
4: A notice given to an offender under subsection (2)﻿(b)
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 80ZT(1)﻿(b) (including randomly), whether the offender is required to undergo testing.
6: Only a medical practitioner or medical officer may collect a blood sample from an offender under this section.
7: In this section and in sections 70AA, 70B, 80SA, 80UA, 80ZP to 80ZR, and 96A authorised person
a: a constable; or
b: an employee of the Department of Corrections authorised by the chief executive of that department to require offenders to undergo testing or monitoring.
80ZP: How notice of requirement to undergo testing or to submit to continuous monitoring may be given
1: An authorised person may give an offender a notice under section 80ZO(2) in any of the following ways:
a: by giving the notice personally and in writing to the offender:
b: by giving the notice personally and orally to the offender, then, unless the notice requires the offender only to undergo breath screening, as soon as practicable recording it in writing and giving a copy to the offender:
c: if the notice is given under section 80ZO(2)﻿(a), by giving the notice to the offender 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 offender.
2: An automated system must, in response to an offender contacting it as required by a notice given under section 80ZO(2)﻿(c) and subsection (1), give the offender a spoken or written response notice specifying whether the offender is required to undergo testing.
3: A notice given by an authorised person under subsection (1)﻿(c) or a response notice that is given under subsection (2) and that requires an offender to undergo testing must specify the name and location of a testing facility to which the offender is required to report to undergo testing, and the time or times when the offender is required to report, under section 80ZQ.
80ZQ: Where prescribed testing procedure may be carried out
1: An authorised person may require an offender to whom section 80ZO section 80ZO(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 offender’s residential address.
3: However, an offender cannot be required to undergo a prescribed testing procedure in a place specified in subsection (2)﻿(a) (b)
4: An offender 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 offender to undergo testing at the place where the offender is given notice, to accompany the authorised person to any other place where it is likely that it will be reasonably practicable for the offender to undergo testing.
5: An offender given a notice under section 80ZP(1)﻿(c) or (2) that requires the offender 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.
80ZR: Information obtained from drug and alcohol testing or monitoring
1: Information obtained from a prescribed testing procedure or a drug or alcohol monitoring device required under section 80ZO(2)
a: may be used for all or any of the following purposes:
i: verifying compliance by the offender with a drug or alcohol condition:
ii: detecting non-compliance by an offender with a drug or alcohol condition, and providing evidence of that non-compliance:
iii: verifying that the offender has not tampered or otherwise interfered with a drug or alcohol monitoring device:
iv: any purpose for which the offender 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 offender, be used—
i: as evidence that the offender committed an offence, other than an offence against any of sections 70 70B 80SA 80UA 96A
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 80ZO to 80ZQ
80ZS: Offence to refuse authorised person entry to offender’s residential address
1: This section applies to an offender who is—
a: subject to a sentence of supervision, intensive supervision, or home detention with a drug or alcohol condition, or subject to a post-detention condition or post-imprisonment condition that is a drug or alcohol condition; and
b: required, under section 80ZO(2)﻿(b)
2: The offender commits an offence if the offender refuses or fails, without reasonable excuse, to allow an authorised person to enter the offender’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 offender:
b: servicing or inspecting the device:
c: installing, removing, servicing, or inspecting any equipment necessary for the operation of the device.
3: An offender 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 80ZO(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 offender; and
ii: is authorised in writing by an authorised person (as defined in section 80ZO(7)
A: attaching a drug or alcohol monitoring device to, or removing the device from, the offender:
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 offender.
80ZT: Rules about drug and alcohol testing and monitoring
1: The chief executive may, by notice in the Gazette
a: prescribing, for the purposes of section 80ZO(2)﻿(a) and (c) section 80ZO
b: specifying how often each of the prescribed testing procedures may be carried out:
c: prohibiting authorised persons from requiring an offender to undergo certain testing procedures if other less intrusive testing procedures are available and are sufficient in the circumstances:
d: prescribing, for the purposes of section 80ZO(2)﻿(b) section 80ZO
e: specifying restrictions as to how often, and for how long—
i: continuous monitoring may be carried out:
ii: an offender 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 an offender in order for the sample to be used as evidence that the offender has breached a drug or alcohol condition:
i: controlled drugs:
ii: psychoactive substances:
iii: alcohol.
2: In this section and in sections 80ZU 80ZV chief executive
80ZU: Further provisions concerning rules about drug and alcohol testing and monitoring
1: Rules made under section 80ZT(1)﻿(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 an offender to be supervised by a person of the same sex as the offender during the collection of a bodily sample required for testing:
c: provide for an offender to elect, if the offender 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 80ZT(1)
a: prescribe testing procedures that are no more intrusive than is reasonably necessary to ensure compliance with a drug or alcohol condition; and
b: allow for offenders to be tested no more often than is reasonably necessary to ensure compliance with a drug or alcohol condition; and
c: ensure that offenders liable to testing and monitoring are afforded as much privacy and dignity as is reasonably practicable.
3: Subsection (1)﻿(b) subsection (2)﻿(c)
80ZV: Availability of rules about drug and alcohol testing and monitoring, and status under Legislation Act 2012
1: The chief executive must ensure that any rules made under section 80ZT
a: on an Internet site that is maintained by or on behalf of the Department of Corrections 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 80ZT Offence: post-imprisonment conditions
15: Section 93 amended (Imposition of conditions on release of offender sentenced to imprisonment for short term)
Section 15 repealed 15 May 2017 section 18(2)
16: New section 96A inserted (Offences related to post-imprisonment conditions that are drug or alcohol conditions)
After section 96
96A: Offences related to post-imprisonment conditions that are drug or alcohol conditions
An offender who is subject to a post-imprisonment condition that is a drug or alcohol condition commits an offence, and is liable on conviction to imprisonment for a term not exceeding 1 year or to a fine not exceeding $2,000, if the offender—
a: refuses or fails, without reasonable excuse,—
i: to undergo a testing procedure when required to do so under sections 80ZO(2)﻿(a) 80ZQ
ii: to submit to continuous monitoring when required to do so under section 80ZO(2)﻿(b)
iii: to comply with instructions specified in a notice given under section 80ZO(2)﻿(b)
iv: to accompany an authorised person, when required to do so under section 80ZQ(4)
v: to contact a specified automated system when required to do so under section 80ZO(2)﻿(c); or
vi: to report, at any time or times when required to do so under section 80ZQ(5), to a specified testing facility to undergo testing; or
vii: to undergo a testing procedure when required to do so under sections 80ZO(2)﻿(c) and 80ZQ; or
b: does anything with the intention of diluting or contaminating a bodily sample required under section 80ZO(2)﻿(a) or (c)
c: tampers with a drug or alcohol monitoring device required under section 80ZO(2)﻿(b)
17: Consequential amendments and transitional provisions if this Act in force before Sentencing (Electronic Monitoring of Offenders) Amendment Act 2016
Section 17 repealed 15 May 2017 section 18(2)
18: Consequential amendments and transitional provisions if Sentencing (Electronic Monitoring of Offenders) Amendment Act 2016 in force before this Act
1: This section applies if the Sentencing (Electronic Monitoring of Offenders) Amendment Act 2016
2: Sections 5 7(2) 15 17
3: Amend Schedule 1AA of the principal Act as indicated in Part 2 2017-05-15 Sentencing (Drug and Alcohol Testing) Amendment Act 2016 This amends note will not apply if 2016 No 85 comes into force before 2016 No 47. 2016 No 47 comes into force 22 December 2016. 2016 No 85 comes into force 15 May 2017, or earlier by OIC. —SB 15/11/16