Bail (Drug and Alcohol Testing) Amendment Act 2016

1: Title
This Act is the Bail (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 Bail Act 2000 principal Act 2017-05-15 Bail Act 2000 Definitions and correction of cross-reference
4: Section 3 amended (Interpretation)
In section 3 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 30(4) (alone or with any of sections 21B(2) and (3), 40(4), 53(4), and 54(4)); and
b: that prohibits a defendant 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 psychoactive substance testing using
5: New section 3A inserted (Transitional, savings, and related provisions)
After section 3
3A: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1AA
6: Section 13 amended (Exercise of discretion when considering bail pending sentencing)
In section 13(4A)﻿(a) section 30(3A) section 30(3) Conditions of bail
7: Section 30 amended (Conditions of bail)
After section 30(4)
4A: However, a Registrar must not impose a drug or alcohol condition under subsection (4) unless the defendant consents to the condition being imposed.
8: New section 30AA inserted (Imposition, and effect, of drug or alcohol condition)
After section 30
30AA: Imposition, and effect, of drug or alcohol condition
1: This section applies if a judicial officer or Registrar imposes a drug or alcohol condition on a defendant under section 30(4) (alone or with any of sections 40(4), 53(4), and 54(4)).
2: The judicial officer or Registrar cannot direct, indicate, or require that the defendant undergo or submit to drug or alcohol testing or continuous monitoring, but the condition requires the defendant to comply with all requirements arising from an authorised person giving the defendant notice under section 30T(1)
3: The judicial officer or Registrar must advise the defendant that the defendant must do any 1 or more of the following things if required to do so by notice given to the defendant by an authorised person under section 30T(1)
a: undergo testing for a controlled drug, a psychoactive substance, or alcohol:
b: submit to continuous monitoring of the defendant's compliance with the drug or alcohol condition through a drug or alcohol monitoring device connected to the defendant’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.
4: To avoid doubt, this section does not apply to a defendant who has been granted Police bail with a drug or alcohol condition.
9: New sections 30T to 30X and cross-heading inserted
After section 30S Testing and monitoring of defendants on bail with drug or alcohol conditions
30T: Defendant on bail (other than Police bail) with drug or alcohol condition may be required to undergo testing or submit to continuous monitoring
1: An authorised person may, by notice given to a defendant who is on bail (other than Police bail) with a drug or alcohol condition, require the defendant 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 73AA(1)﻿(a)
b: submit, during a reasonable period specified in the notice, to continuous monitoring of the defendant's compliance with the drug or alcohol condition through a drug or alcohol monitoring device of a type prescribed in rules made under section 73AA(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 73AA(1)﻿(a)
2: An authorised person exercising that person’s discretion under subsection (1)
a: must comply with any rules made under section 73AA(1)
b: may—
i: select a defendant to do what is specified in subsection (1)﻿(a), (b), or (c)
ii: make a determination in respect of the defendant with or without evidence that the defendant has breached the condition; and
c: must, if requiring the defendant to do what is specified in subsection (1)﻿(a) or (c) subsection (1)﻿(a) subsection (1)﻿(c)
3: A notice given to a defendant under subsection (1)﻿(b)
4: An automated system specified in a notice given under subsection (1)﻿(c) section 73AA(1)﻿(b)
5: Only a medical practitioner or medical officer may collect a blood sample from a defendant under this section.
6: In this section and in sections 30U 30X authorised person
a: a constable; or
b: an employee of the Department of Corrections authorised by the chief executive of that department to require defendants to undergo testing, or submit to continuous monitoring, under this section.
30U: How notice of requirement to undergo testing or to submit to continuous monitoring may be given
1: An authorised person may give a defendant a notice under section 30T(1) in any of the following ways:
a: by giving the notice personally and in writing to the defendant:
b: by giving the notice personally and orally to the defendant, then, unless the notice requires the defendant only to undergo breath screening, as soon as practicable recording it in writing and giving a copy to the defendant:
c: if the notice is given under section 30T(1)﻿(a), by giving the notice by telephone or other means of electronic communication (as defined in section 5 of the Electronic Transactions Act 2002) to the defendant, then as soon as practicable recording it in writing (if it is not already in writing) and giving a copy to the defendant.
2: An automated system must, in response to a defendant contacting it as required by a notice given under section 30T(1)﻿(c) and subsection (1)
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)
30V: Where prescribed testing procedure may be carried out
1: An authorised person may require a defendant to undergo testing at the place where the defendant is given notice under section 30T(1)
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 defendant’s residential address.
3: However, a defendant cannot be required to undergo a prescribed testing procedure in a place specified in subsection (2)﻿(a) (b)
4: A defendant 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 defendant to undergo testing at the place where the defendant is given notice, to accompany the authorised person to any other place where it is likely that it will be reasonably practicable for the defendant to undergo testing.
5: A defendant given a notice under section 30U(1)﻿(c) or (2) that requires the defendant 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.
30W: Breach of drug or alcohol condition
1: A defendant on bail with a drug or alcohol condition breaches the condition if the defendant—
a: uses a controlled drug or a psychoactive substance, or consumes alcohol, in contravention of the condition; or
b: refuses or fails, without reasonable excuse,—
i: to undergo a testing procedure when required to do so under sections 30T(1)﻿(a) 30V
ii: to submit to continuous monitoring when required to do so under section 30T(1)﻿(b)
iii: to comply with instructions specified in a notice given under section 30T(1)﻿(b)
iv: to accompany an authorised person, when required to do so under section 30V(4)
v: to contact a specified automated system when required to do so under section 30T(1)﻿(c)
vi: to report, at any time or times when required to do so under section 30V(5), to a specified testing facility to undergo testing; or
vii: to undergo a testing procedure when required to do so under sections 30T(1)﻿(c) 30V
viii: to allow 1 or more persons specified in subsection (2)
A: attaching a drug or alcohol monitoring device to, or removing the device from, the defendant:
B: servicing or inspecting the device:
C: installing, removing, servicing, or inspecting any equipment necessary for the operation of the device; or
c: does anything with the intention of diluting or contaminating a bodily sample required under section 30T(1)﻿(a) or (c)
d: tampers with a drug or alcohol monitoring device required under section 30T(1)﻿(b)
2: The persons referred to in subsection (1)﻿(b)﻿(viii)
a: an authorised person who has produced evidence of that person’s identity to the defendant; and
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 defendant; and
ii: is authorised in writing by an authorised person to enter the defendant’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 defendant:
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 defendant.
3: Subsection (1)﻿(b) to (d)
30X: 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 30T(1)
a: may be used for all or any of the following purposes:
i: verifying compliance by the defendant with a drug or alcohol condition:
ii: detecting non-compliance by the defendant with a drug or alcohol condition, and providing evidence of that non-compliance:
iii: verifying that the defendant has not tampered or otherwise interfered with a drug or alcohol monitoring device:
iv: any purpose for which the defendant has requested, or consented to, the information being used; and
b: must not, except at the request or with the consent of the defendant, be used as evidence that the defendant committed an offence or for any other purpose not listed in paragraph (a)
2: A judicial officer or court may, in the absence of evidence that is available to the judicial officer or 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 30T to 30V Rules
10: Section 73 amended (Rules)
Replace the heading to section 73 Rules relating to practice and procedure of courts
11: New sections 73AA to 73AAC inserted
After section 73
73AA: Rules about drug and alcohol testing and monitoring
1: The Commissioner may, by notice in the Gazette
a: prescribing, for the purposes of section 30T(1)﻿(a) and (c)
b: specifying how often each of the prescribed testing procedures may be carried out:
c: prohibiting authorised persons from requiring a defendant 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 30T(1)﻿(b)
e: specifying restrictions as to how often, and for how long,—
i: continuous monitoring may be carried out:
ii: a defendant 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 defendant in order for the sample to be used as evidence that the defendant has breached a drug or alcohol condition:
i: controlled drugs:
ii: psychoactive substances:
iii: alcohol.
2: In this section and in sections 73AAB 73AAC Commissioner
73AAB: Further provisions concerning rules about drug and alcohol testing and monitoring
1: Rules made under section 73AA(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 a defendant to be supervised by a person of the same sex as the defendant during the collection of a bodily sample required for testing:
c: provide for a defendant to elect, if the defendant 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 Commissioner may make rules under section 73AA(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 defendants to be tested no more often than is reasonably necessary to ensure compliance with a drug or alcohol condition; and
c: ensure that defendants liable to testing and monitoring are afforded as much privacy and dignity as is reasonably practicable.
3: Subsection (1)﻿(b) subsection (2)﻿(c)
73AAC: Availability of rules about drug and alcohol testing and monitoring, and status under Legislation Act 2012
1: The Commissioner must ensure that any rules made under section 73AA
a: on an Internet site that is maintained by or on behalf of the New Zealand Police 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 73AA
12: New Schedule 1AA inserted
Before Schedule 1 Schedule 1AA Schedule