Road Crime

The NSW Law Reform Commission report on Serious Road Crime states 

In accordance with the terms of reference, we focus on serious road crime offences in the Crimes Act 1900 (NSW) (Crimes Act), along with the offence of manslaughter and accessorial liability. 

Some issues are beyond the scope of the review. These include: • road crime offences that are not in the Crimes Act, and reforms to other Acts • broader reforms that are not specific to serious road crime offences or serious road crime victims, or that would affect the criminal law more broadly • some matters that relate to wider NSW Government policies, and • some issues relating to the investigation and prosecution of serious road crime offences. 

We also only consider decisions in individual cases or sentencing outcomes to the extent that they are relevant to whether the law should be changed. 

The review was informed in part by the experiences of victims and their families. We recognise the profound trauma and enduring suffering caused by serious road crimes, which is often compounded by the criminal justice process. 

In addition to considering the lived experience of victims, we consider important law reform principles. These include that any reform should be principled and evidence- based, and capable of operating within the broader criminal framework. We also recognise that the criminal law is just one measure, among many, to address road safety, and may not be the most effective deterrent of risky driving behaviour. We consider unintended consequences of reform proposals. 

This includes any potential disproportionate impact on particular groups in the community, including Aboriginal and Torres Strait Islander peoples. Any change that could negatively affect progress towards Closing the Gap targets should not be recommended without clear and compelling justification. 

Vehicular homicide/manslaughter (Chapter 2) 

Chapter 2 considers whether a new, specific offence of vehicular homicide/manslaughter should be introduced into the serious road crime offence hierarchy.  While we acknowledge that a new offence could have an important symbolic role, we conclude that a vehicular homicide/manslaughter offence should not be introduced. We do not think a new offence is necessary, where the existing manslaughter offence, in combination with other serious road crime offences, appropriately covers the wide range of conduct and criminality of driving that causes death. There is a risk that introducing a new offence could result in symbolic criminalisation only, without leading to more manslaughter charges, or the harsher sentencing outcomes that some submissions desired. 

A new vehicular manslaughter offence could also cause confusion. It may be unclear how this offence would interact with the general manslaughter offence, particularly if the new offence had different or overlapping elements. It could cause confusion about where the new offence sat in the hierarchy of driving offences, and whether the existing offence would still have a role to play in the context of serious road crimes. 

We recommend that the NSW Government introduce a new Law Part Code to record instances where the offence of manslaughter involves driving a motor vehicle. A Law Part Code is a unique code used to identify certain types of offending, and in some cases, the circumstances of an offence. It would allow for better data collection to inform policy in the future. 

We do not consider legislative reform an appropriate way to address the common law rule that regulatory breaches, like traffic violations, cannot be an “unlawful act” for the offence of manslaughter by unlawful and dangerous act. We recognise the concerns raised about the restrictive nature of the rule, but consider that appellate courts are best placed to address any issues arising from the rule. Legislative reform could also have a broader impact on the general offence of manslaughter, beyond manslaughter offences that involve a motor vehicle. 

Offences causing death or bodily harm (Chapter 3) 

Chapter 3 considers whether the elements of the serious road crime offences that cause death or bodily harm are appropriate and operating effectively. We do not recommend any reform to the elements of the offences of dangerous driving occasioning death and dangerous driving causing grievous bodily harm (GBH). 

In our view, the elements are clear and appropriate. The offences sufficiently cover  the spectrum of dangerous driving conduct and are broad enough to be applied flexibly, on a case-by-case basis. 

We recommend adding participation in an unlawful street race or speed trial as a circumstance of aggravation for aggravated dangerous driving offences. The aggravated offence, and the higher maximum penalty, would apply where a person causes death or harm to another while participating in an unlawful race or speed trial. This recognises the high level of criminality involved in the conduct, and the significant danger it poses. 

We also recommend that the NSW Government review the aggravating circumstance of speed and consider other models for determining what the speed threshold should be for aggravated dangerous driving offences. The law currently requires a person to have been travelling more than 45km/h above the speed limit at the time of impact, for the aggravated offences to apply. 

We heard that the current single set limit does not reflect the varying degrees of risk of speeding in different areas. We consider several proposals for models to address this concern, including a percentage model, or a hybrid percentage and threshold speed. The NSW Government should consult with experts to determine the appropriate model and limit. 

We conclude there should not be any other reforms to the circumstances of aggravation for aggravated dangerous driving offences. We recommend introducing two new offences: dangerous driving occasioning actual bodily harm (ABH), and an aggravated version of that offence. These offences would improve the logic and coherence of the serious road crime hierarchy, and address concerns that the offence of wanton or furious driving, which is often charged in response to impacts causing ABH, is outdated. 

The new offences would cover some, but not all, of the conduct currently captured by the wanton or furious driving offence. We recommend that the offence be amended and modernised, to make its scope and application clearer. It should continue to cover conduct that is not captured by any new dangerous driving occasioning ABH offence, such as horse riding related offending. We discuss but do not recommend other proposals that were raised, including a new specially aggravated dangerous driving offence, and a new mid-tier offence such as reckless driving. 

Finally, we outline why we determine that negligent off-road driving is outside the scope of the review. 

Other serious road crime offences (Chapter 4) 

Chapter 4 considers the elements of other serious road crime offences, and accessorial liability provisions. If the recommended new offences of dangerous driving occasioning ABH are introduced, we recommend introducing a new offence of failing to stop and assist after a vehicle impact causing ABH. Currently, the Crimes Act offences of failing to stop and assist only apply if a victim died or suffered GBH. The proposed new offence would maintain consistency in the offence hierarchy and align with the new dangerous driving offences. There should not be any amendments to existing offences. 

We do not recommend amendments to the offence of police pursuit or the offence of predatory driving. These offences remain fit for purpose. We also consider general accessorial liability provisions, as they apply to serious road crime offences. Many victims felt a strong sense of injustice that people who may have had a role in a serious road crime were not held criminally responsible for their actions. They argued that there should be new accessory offences that captured this conduct. 

However, we conclude that new accessory offences that apply to passengers and other people who may have had a role in a serious road crime should not be introduced. New accessory offences would be a significant and undesirable extension of criminal responsibility. Existing accessorial liability provisions, as well as other general offences, are already available in appropriate circumstances. We are also concerned that new accessory offences would carry a risk of over-reach, and disproportionately impact particular groups, including Aboriginal and Torres Strait Islander peoples and people in regional and remote areas. 

Penalties (Chapter 5) 

Chapter 5 considers whether the maximum penalties for serious road crime offences are appropriate, as well as other proposals relating to penalties for these offences. We heard concerns that the penalties available for serious road crime offences did not adequately reflect the seriousness of the conduct, or effectively deter offending. Some suggested that these penalties had contributed to inadequate sentencing outcomes for the offences. Some groups proposed reforms to address concerns, including increasing maximum penalties, introducing mandatory minimum sentences, removing the availability of ICOs as a sentencing option, and increasing mandatory and default licence disqualification periods. 

While we acknowledge these views, we do not recommend any changes to the current penalty regime. In our view, the regime is appropriate, and allows sentencing courts scope to impose sentences that adequately reflect the criminality covered by the offences. 

In our view, the current maximum penalties appropriately reflect the gravity of each serious road crime offence and provide courts sufficient scope to sentence offenders for a broad range of conduct. The maximum penalties are broadly consistent with those in other Australian jurisdictions. 

Higher maximum penalties are unlikely to have any additional deterrent effect, but may disproportionately impact particular groups, such as Aboriginal and Torres Strait Islander peoples, young people and those in rural and regional communities. Mandatory minimum sentences should not be introduced for any serious road crime offences. Introducing mandatory minimum sentences may reduce the number of early guilty pleas and lead to further delays in the criminal justice process. They may also inappropriately constrain judicial discretion and lead to inconsistent and skewed sentencing outcomes. Research shows that mandatory minimum sentences may not be effective at deterring crime, and could instead lead to cycles of reoffending through increased exposure to the custodial system. 

Intensive correction orders (ICOs) should also remain available for all serious road crime offences except manslaughter (for which an ICO is already unavailable). Serious road crime offences cover a broad spectrum of criminality, and ICOs are an appropriate sentencing option in some cases. Removing ICOs as a sentencing option could unduly restrict the discretion of sentencing courts and in practice, could lead to both inappropriately harsh or lenient sentences being imposed. If more sentences of imprisonment are imposed, the risk of reoffending may increase. 

We conclude that mandatory driver rehabilitation programs should not be introduced as a condition of sentence. Targeted rehabilitation programs can play an important part in improving driving behaviour and attitudes. The NSW Government should consider increasing the availability of these programs. While we consider that the programs have significant benefits, we do not think they should be made mandatory as condition of sentence. They may not be an appropriate option in every case and should be a matter for judicial discretion. 

We outline the diverse views about the licence disqualification scheme, but do not make any recommendations for reform. Any change to the licence disqualification scheme would need to be considered in a wider review, as it would impact offences beyond serious road crime offences. 

Sentencing principles and procedures (Chapter 6) 

Chapter 6 considers proposed changes to sentencing principles and procedures that apply to serious road crime offences.   Many victims felt a strong sense of injustice at the sentencing outcomes of serious road crime offences. They did not think that the sentences imposed for serious road crimes appropriately reflected the seriousness of the offences, or adequately recognised the devastating harm caused to victims, their families and the wider community. To address these concerns, some submissions proposed reforms to general sentencing principles and procedures. 

While we acknowledge the concerns we heard about the general sentencing framework, broad reforms to this framework are outside the scope of the review. As these changes would affect the sentencing of offences other than serious road crimes, they would need to be considered in a wider review relating to all offence types. 

We also conclude that there should be no change to specific sentencing principles and procedures that apply to serious road crime offences. This includes amending aggravating factors covering the use of a weapon and violence, taking into account prior traffic offences as criminal convictions, implementing regular reviews of judicial decisions, and introducing a statutory scheme of sentencing guidelines for serious road crime offences in NSW. 

There were mixed views about the Whyte guideline judgment that applies to dangerous driving offences. Some considered that it was outdated and out of step with community expectations, while others considered that it remained appropriate, relevant and workable. 

A guideline judgment may only be reviewed, changed, or revoked by the Court of Criminal Appeal, either on its own motion or following an application by the Attorney General. We outline the views we heard in our review, which may inform any future consideration of this issue. 

Finally, we conclude that standard non-parole periods (SNPPs) should not be introduced for dangerous driving offences. SNPPs represent the non-parole period that is in the middle of the range of seriousness for a particular offence, viewed objectively. However, dangerous driving offences cover a wide range of conduct, so it is difficult to identify such a mid-range. 

Moreover, in circumstances where the NSW Sentencing Council recently raised significant concerns about the SNPP scheme as a whole and recommended it be reviewed, we do not consider it appropriate to recommend any expansion. 

Legislative structure and jurisdiction (Chapter 7) 

Chapter 7 considers proposed changes to the legislative structure of serious road crime offences, and the courts in which these offences can be heard. Some submissions argued that a new, standalone road crimes Act would have an important symbolic and educative role. Though we conclude that a new serious road crimes Act should not be introduced, we do recommend that a new serious road crimes division be created in the Crimes Act. This change would improve the clarity and organisation of the offences in the Act, and could improve understanding. Some argued that serious road crime offences were too serious to be heard in the Local Court, and should be removed from Table 1 and Table 2 of the Criminal Procedure Act 1986 (NSW). While we acknowledge the seriousness of these offences, we conclude that there should not be any change to the existing Table offence classifications. 

There are significant benefits in allowing scope for some offences to be heard in the Local Court, including that it can offer a quicker resolution of matters. The Local Court has sufficient sentencing scope to consider offences that fall toward the lower end of the spectrum of criminal culpability. The current Table offence classifications provide flexibility, and the prosecution (and in some cases the accused) can elect for the most serious cases to be heard in the District Court. This change could also reduce the scope for plea negotiations in some cases. 

We heard suggestions that negligent driving occasioning death, which is currently a summary offence, should become indictable or strictly indictable. Some considered this would appropriately reflect the seriousness of the offence, while others suggested it would allow more flexibility and offer practical and operational benefits. However, we conclude that negligent driving occasioning death should remain a summary offence. This appropriately reflects the level of criminal fault in the offence. Although making the offence indictable would allow a longer time for the investigation and charging process, we do not consider these operational benefits alone justify reform. Further, sentencing statistics suggest that the Local Court has adequate scope to properly sentence offenders for this offence. 

Some submissions suggested that dangerous driving offences under s 52A of the Crimes Act were too serious to be heard in the Children’s Court. Though these offences are serious, we conclude that dangerous driving offences should not be made serious children’s indictable offences so that they are excluded from the Children’s Court jurisdiction. 

In all but the most serious cases, the Children’s Court is best placed to deal with young persons, as a specialist court with a tailored framework for dealing with children. Dangerous driving offences cover a broad spectrum of criminality, and it would be undesirable if cases that fell at the lower end of the spectrum of seriousness were deprived of the Children’s Court’s specialist approach. There is already scope for judicial officers in the Children’s Court to transfer the most serious offences to the District Court. 

This change is unlikely to have a deterrent effect on young people and may have other unintended consequences. For example, it may disproportionally impact Aboriginal and Torres Strait Islander children and contribute to the overrepresentation of these young people in detention. 

The experiences and rights of victims (Chapter 8) Chapter 8 considers the concerns raised by serious road crime victims and their families about their rights and experiences in the criminal justice system. While we conclude that no laws should change in response to the terms of reference, we raise a number of important issues for NSW Government consideration. 

There are a number of areas in which victims’ experiences throughout the criminal justice process could be improved. The term “accident” is distressing to road crime victims, and should be avoided in connection with criminal proceedings for these offences. There is a clear need for more trauma-informed victim support services, particularly for victims in rural and remote areas. We heard concerns about the lack of information provided to victims about the criminal process, and the lack of available counselling. Some victims found the compulsory third-party scheme inadequate and inaccessible. 

Some of the issues raised by victims may be considered in the Department of Communities and Justice ongoing review of the Victims Rights and Support Act 2013 (NSW). Recent amendments to this Act also extend counselling under the Victims Support Scheme to family victims of road crime. This is in addition to the trauma support service, which provides immediate counselling and psychological support. The NSW Government should consider whether restorative justice processes should be made more widely available. There was overwhelming support for restorative justice processes in the context of serious road crime offences, due to its potential benefits for both victims and offenders. There was also some support for Victim Impact Panels. These processes could meet some needs that are not met by the traditional criminal justice system. 

While there are clear benefits to restorative justice, it is desirable that the NSW Government consider making these processes available for a wider range of offences, not only for serious road crimes. We outline the views we heard in the review, which may inform this consideration. Issues may include when restorative justice should be available in the criminal justice process, whether participation should be taken into account on sentence, and whether restorative justice should have a legislative basis. 

Finally, we conclude that there should be no change to the victim impact statement scheme, and the remote evidence in chief provisions. In our view, the current scope of these laws is appropriate in the context of serious road crime offences.

The Commission's recommendations are  

2. Vehicular homicide/manslaughter 

Recommendation 2.1: New Law Part Code 

There should be a Law Part Code for manslaughter where the commission of the offence involves the accused person driving a motor vehicle. 

3. Offences causing death or bodily harm 

Recommendation 3.1: The aggravating circumstance of speed should be reviewed 

The NSW Government should review the circumstance of aggravation relating to speed in s 52A(7)(b) of the Crimes Act 1900 (NSW), to consider whether the limit should be lowered, or whether other models for identifying excessive speed should be adopted, such as nominating a percentage above the applicable speed limit. 

Recommendation 3.2: Participation in an unlawful race or unlawful speed trial should be a circumstance of aggravation 

Participation in an unlawful race or unlawful speed trial should be added as a circumstance of aggravation in s 52A(7) of the Crimes Act 1900 (NSW). 

Recommendation 3.3: New offences of dangerous driving occasioning actual bodily harm and amending wanton or furious driving (1) An offence of dangerous driving occasioning actual bodily harm should be inserted into s 52A of the Crimes Act 1900 (NSW). The elements of this offence should be consistent with the offences of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm. It should carry a maximum penalty of 2 years’ imprisonment. (2) An offence of aggravated dangerous driving occasioning actual bodily harm should also be inserted into s 52A of the Crimes Act 1900 (NSW). The circumstances of aggravation in s 52A(7), amended to include unlawful street racing, should apply to this offence. It should carry a maximum penalty of 4 years’ imprisonment. (3) Both offences should be Table 1 offences, in Schedule 1 of the Criminal Procedure Act 1986 (NSW). (4) The offence of dangerous driving occasioning actual bodily harm should be available as an alternative verdict to the aggravated form of the offence. (5) The offence of wanton and furious driving in s 53 of the Crimes Act 1900 (NSW) should be updated, so it only covers conduct that is not addressed by these new offences. The language of the offence also should be modernised. 

4. Other serious road crime offences 

Recommendation 4.1: Extend fail to stop and assist to impacts causing ABH 

If new dangerous driving occasioning actual bodily harm offences are introduced, a new offence of failing to stop and assist after a vehicle impact causing actual bodily harm should be inserted into s 52AB of the Crimes Act 1900 (NSW). 

7. Legislative structure and jurisdiction 

Recommendation 7.1: A new serious road crimes division 

There should be a new division in the Crimes Act 1900 (NSW) that incorporates the existing serious road crime offences contained in that Act.

Bail

The ACT Government has released a discussion paper regarding the review of decision-making criteria in the Bail Act 1992 (ACT). 

The paper states 

 The ACT Government recognises the impact of bail decisions on defendants, victims, witnesses, and the broader community’s perceptions about the justice system. The ACT Government acknowledges the work undertaken in the 10th Legislative Assembly committee by the Standing Committee of Justice and Community Safety and its report Inquiry into the Administration of Bail in the ACT. The submissions to and discussion and recommendations within that report have informed the Government’s position and this discussion paper. The ACT Government believes that bail law modernisation and reform is highly desirable and intends to introduce legislation amending the Bail Act 1992 as soon as practicable. ... 

Objectives of the reform 

Reforms to the Bail Act 1992 are being approached with the following direct objectives sought: • Provide greater clarity to decision-makers about what considerations are to be taken into account when deciding a bail application; • Maintain the independence and discretion of decision-makers when deciding a bail application; • Maintain procedural fairness and consistency with the ACT Human Rights Act (2004); and • Elevate the concept of do no further harm to both the alleged victim(s) and the accused person when deciding a bail application. 

Notwithstanding the intersectionality and relevance of resources, investments, and supports that are otherwise outside this reform’s scope, particular regard is given to these further objectives: • Enhance confidence and trust in the justice system; • Reduce the high rates of remand and recidivism; and • Address the significantly high rates of incarceration of Aboriginal and Torres Strait Islander people. 

Background 

Bail decisions are a high volume, significant component of our criminal justice system and it is vital that the law is clear and accessible. Until 1992, bail laws in the ACT were set out in various pieces of legislation. This made it difficult to identify the rules that applied to their specific circumstances. The Bail Act 1992 was enacted to consolidate, modernise and simplify the law relating to bail for young people and adults. 

While there have been several amendments to the Act since, the most recent significant changes occurred in 2004. 

An accused person has a right to the presumption of innocence and a right to liberty. These rights mean that a person cannot be detained as punishment for a crime they are accused of committing prior to trial and that pre-trial detention is intended as an exceptional, not standard, measure. 

Bail is an undertaking that the accused will appear before court on a later date, and can be subject to conditions. Where an application for bail is not granted, an accused is remanded in custody. There are individual, financial and justice sector direct and indirect costs when the accused person is remanded in custody. Accused persons and their families suffer the hardships of incarceration without being convicted of an offence. Pre-trial detention and remand can contribute to likelihood of future offending. Because incarceration is criminogenic in nature, , an accused remanded in custody is then at increased risk of reoffending, which ultimately does not make the community safer. 

The real net operating cost of a detained adult in prison in the ACT in 2023-24 was $618 per person per day. With up to half of the prison population on remand, around $40 million is spent annually detaining adults on remand. 

These costs need to balanced with and considered in the context of the rights of victims; the need to mitigate the risk of further harm; the importance of community safety; the availability of support services and enforcement resources; and the most effective use of Government resources and funding to achieve its justice objectives. 

Basics of the Bail Act 1992 

Applying for bail 

In the ACT, a person arrested and charged with a criminal offence is entitled to apply for bail. Persons who can grant bail are authorised officers (the Chief Police Officer and delegated police officers) and courts (Magistrates Court or Supreme Court). 

The Bail Act sets a number of obligations on the arresting or the charging police officer about the granting of bail and ensuring the accused is aware of their rights. Where the authorised officer cannot or does not grant bail, the accused must be brought before a court as soon as possible, and the court is required to consider the application as soon as possible. 

Framework for decision-makers 

The Bail Act provides a legislative framework for how bail applications are to be approached by decision-makers. 

The decision-maker must consider any presumptions that apply and, where applicable, the criteria for granting bail to adults (section 22 of the Bail Act) or children (section 23 of the Bail Act). The information before a court is provided by the prosecution (which will include information provided by the police), defence and any additional information from other relevant sources such as ACT Corrective Services or a health professional. 

The bail decision requires the balancing of all the information and factors before the decision maker. 

Presumption for bail to be granted 

• For certain minor offences, an accused is entitled to be granted bail in most circumstances; • For offences other than minor offences, an accused is entitled to be granted bail unless the court or authorised officer is satisfied that refusal is justified after considering specific criteria, including applicable presumptions (also set out in the Act). 

Neutral presumption about whether bail should be granted 

For some specific offences, the Bail Act provides there is not an entitlement for an accused to be granted bail—and nor is there an entitlement for them not to be granted bail. 

Presumption against granting bail 

For some specific offences, the Bail Act provides that bail must not be granted unless the authorised officer or the court is satisfied that special or exceptional circumstances exist that favour bail being granted. However, even if those special or exceptional circumstances are established, the court or authorised officer must refuse bail if they are satisfied that refusal is justified after considering specific criteria (also set out in the Act). 

Dispensing with bail 

A court may also decide to release an accused person from custody without requiring bail. The accused person is entitled to be and to remain at liberty in relation to the offence until the person is required to appear before a court in relation to the offence. 

Criteria for decision-makers to consider 

The criteria for granting bail under section 22 or 23 of the Bail Act require the decision-maker to consider the likelihood of certain things occurring such as the person appearing in court or committing an offence. When making that decision, the decision-maker may also consider any relevant matter, including the nature and seriousness of the offence, the person’s character, background and community ties, and any previous grants of bail. 

In more detail: In making a decision about the grant of bail to an adult in relation to an offence, a court or authorised officer must consider— (a) the likelihood of the person appearing in court in relation to the offence; and (b) the likelihood of the person, while released on bail— (i) committing an offence; or (ii) harassing or endangering the safety or welfare of anyone; or (iii) interfering with evidence, intimidating a witness, or otherwise obstructing the course of justice, in relation to the person or anyone else; and (c) the interests of the person (such as the need for the person to have physical protection, or the period with which a person may be held in custody if bail is refused and the conditions under which they would be held) 

The Bail Act provides that the court or authorised officer may also have regard to any relevant matter, and includes: (a) the nature and seriousness of the offence; or (b) the person’s character, background and community ties; In this context, a prosecutor must tell the court about any concern a victim may have expressed about the need for protection from violence or harassment by the accused. (c) the likely effect of a refusal of bail on the person’s family or dependants; or (d) any previous grants of bail to the person; or (e) the strength of the evidence against the person. 

Within the Bail Act, a victim is defined as: (a) a person (the primary victim) who suffers harm— (i) in the course of, or because of, the commission of an offence of which the accused person is accused; or (ii) in the course of assisting a police officer in the exercise of the officer’s power to arrest the accused person or to take action to prevent the commission of an offence of which the accused person is accused; or (b) if a primary victim dies because of the commission of an offence of which the accused person is accused—anyone who was financially or psychologically dependent on the primary victim immediately before his or her death. 

Bail conditions 

Bail can be granted without conditions or with conditions. 

When bail is granted with conditions, those conditions can include one or more of: • conditions about the accused person’s conduct while released on bail, such as a requirement that: o the accused person report periodically, or at specified times, at a stated place; and o the accused person reside at a stated place; and o the accused person undergo psychiatric treatment or other medical treatment; and o the accused person participate in a program of personal development, training or rehabilitation; and o the accused person accept supervision or comply with any reasonable direction (such as undertaking a mental health assessment or other program). Note: further specific conditions are applicable where a person has been charged with a family violence offence. • a condition that the accused or another person gives a security of payment, or otherwise pays a stated amount, if the accused person fails to appear in court in accordance with his or her undertaking. 

Release on bail 

An accused person may be released on bail only if the person gives an undertaking to appear before a stated court at the place, date and time that’s provided to them by a police officer or written or recorded in an undertaking before a court and to comply with the bail conditions (if any). 

An accused person commits an offence if they give an undertaking to appear before a court and fail to carry out the undertaking. 

Issues with Bail Act operation 

The ACT Government respects and will maintain the independence and discretion of decision makers. The following discussion relates to options for how the framework for decision-making could be improved. 

While the decision-maker may take into account any relevant consideration, and a court can be proactive in the information it seeks, pressures such as time or urgency may limit relevant considerations being sought and/or being given appropriate regard. 

The following discussion outlines the evidence and observations reflected in submissions to the ACT Government and ACT Legislative Assembly Committee inquiries, as well as data, research and sentiment. Issues on which the ACT Government is seeking views and possible reforms are outlined, with questions to prompt responses. 

How bail criteria are framed in the Act 

When first in force, the Bail Act set out the criteria for granting bail to adults with matters in the categories of: • probability of the person appearing in court in respect of the offence; • interests of the person charged; and • the protection of the community. 

While elements of these are still reflected in the current criteria, these ‘arms’ of thematic considerations are not set out as clearly. In that vein, the Government is of the view that there may be value in clearly setting out the key categories or lenses through which a decision-maker should be considering relevant criteria. For example, by recognising the rights of the victim and the accused, and the principle of doing no further harm to either, and through a broader lens regarding community safety and justice integrity. These categories can be summarised as: • interests of the victim; • interests of the accused; and • interests of community safety and justice integrity. 

There is no hierarchy of these interests; no consideration is to supersede another. Rather, they could serve as a stronger framework setting for the relevant considerations for a decision-maker in deciding whether to grant bail.

The paper features the following questions 

Q1. What are the risks or benefits in providing for a clearer framework of considerations for the decision-maker as outlined above? 

Q2: Should a victim’s concerns that need to be taken into consideration be broader than what is currently legislated? If so, what would be an appropriate expansion? 

Q3: Is there value in a criterion which reflects victims’ views and knowledge more broadly? If so, should this be in addition to or instead of a “risk of harm” criterion? 

Q4: Should decision-makers be specifically required to have regard to the presence of established risk factors when deciding a bail application in the context of a domestic and family violence offence? 

Q5: If so, if an FVRAT has been completed by ACT Policing, should it be provided as a relevant consideration that the decision-maker needs to have regard to? Or, is there another tool which could be used instead of, or in addition to, an FVRAT?

Q6: Where a victim dies because of the commission of an offence of which the accused person is accused, should the definition of victim be expanded to include immediate family members, rather than only persons who were financially or psychologically dependent?

Q7: Is this provision in the Victorian legislation appropriate for the ACT context? Can it be improved? 

Q8: Should an accused being a primary carer or pregnant be a relevant consideration for a decision-maker in deciding to grant bail? If so, what form should the provision take?

Q9: Should an accused person’s disability needs, health needs and relevant related circumstances be required to be considered by a decision-maker in deciding whether to grant bail? If so, what form should the provision take? 

Q10: Should the legislation contain a specific provision requiring a court to consider a written submission from police in its decision-making? 

Q11: With the nature and seriousness of an offence already provided for as a relevant consideration, should this be expanded to include the prevalence of the offence? 

Q12: Are the types of risks that a decision-maker is required to assess the likelihood of sufficient for the purposes of granting bail? 

Q13: Should a person’s actions (including breaches of conditions; further offences etc) while on any previous grant of bail (or subject to other conditions imposed by a court) which has now been disposed of be a relevant consideration for a decision-maker? 

Q14: Is it useful to continue with having some criteria being required to be considered and others which may be taken into account? If so, should there be any changes? Or, should all criteria be relevant considerations that need to be given appropriate regard? How could decision-makers and persons appearing before a court be supported so that all evidence relating to the criteria is available? 

Q15: What further information or specificity could be provided in the bail conditions which would ensure their enforceability? 

Q16: Are there reporting sites for bail other than police stations that might suit other persons with particular vulnerabilities or needs that should be an option as part of a bail application process? 

Q17: Should the ACT Government consider extending electronic monitoring to be a potential bail condition? If so, should it be limited to particular offence types? 

Q18: Of the bail criteria and conditions discussed in this paper, should any be specifically applied or be a consideration in matters that involve children and young people who are accused of a crime? Should any specifically not be a consideration in matters that involve children and young people accused of a crime? 

Q19: In considering the effectiveness of and complexity of presumptions, should there be reform in this area with regard to children and young people?

NZ Preventive Detention regime

The Here ora: Public safety and serious offenders: A review of preventive detention and post-sentence orders report by the NZ Law Commission features the following recommendations -

Preventive measures, community safety and human rights (Chapter 3) 

R1 The law should continue to provide for preventive measures to protect the community from serious sexual or violent reoffending by those who would otherwise be released into the community after completing a determinate sentence of imprisonment. 

R2 The preventive measures the law should provide for are: a. community preventive supervision; b. residential preventive supervision; and c. secure preventive detention 

A single, post-sentence regime (Chapter 4) 

R3 A new statute should be enacted to govern all preventive measures (the new Act). 

R4 Sections 87–90 of the Sentencing Act 2002, providing for preventive detention, should be repealed. Part 1A of the Parole Act 2002, providing for ESOs, should be repealed. The Public Safety (Public Protection Orders) Act 2014, providing for PPOs, should be repealed. 

R5 All preventive measures should be imposed as post-sentence orders. For preventive measures sought against an eligible person subject to a prison sentence in Aotearoa New Zealand for a qualifying offence, the new Act should require applications to be made prior to the person’s sentence expiry date or the date when the individual ceases to be subject to any release conditions, whichever is later. 

R6 A court sentencing an eligible person to imprisonment following conviction for a qualifying offence should give written notice to the person to inform them of their eligibility to have a preventive measure sought against them. 

Reorienting preventive measures (Chapter 5) 

R7 The purposes of the new Act should be to: a. protect the community by preventing serious sexual and violent reoffending; b. support a person considered at high risk of serious sexual and/or violent reoffending to be restored to safe and unrestricted life in the community; and c. ensure that limits on a person’s freedoms to address the high risk they will sexually and/or violently reoffend are proportionate to the risks and are the least restrictive necessary. 

R8 In proceedings under the new Act, if it appears to the court that a person against whom a preventive measure is sought or a person already subject to a preventive measure may be “mentally disordered” or “intellectually disabled”, the court should have power to direct the chief executive of Ara Poutama Aotearoa | Department of Corrections to: a. consider an application in respect of the person under section 45 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or under section 29 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; and b. if the chief executive decides not to make an application, to inform the court of their decision and provide reasons for why the preventive measure is appropriate. 

R9 If at any time it appears to the chief executive of Ara Poutama Aotearoa | Department of Corrections that a person subject to a preventive measure is mentally disordered or intellectually disabled, the chief executive should have power to make an application in respect of the person under section 45 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or under section 29 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. 

R10 For the purposes of any application under section 45 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or under section 29 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 made in relation to a person against whom a preventive measure is sought or who is already subject to a preventive measure, the person should be regarded as being detained in a prison under an order of committal.   

R11 If a compulsory treatment order under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or a compulsory care order under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 is imposed on a person subject to a preventive measure, the preventive measure should be suspended. While suspended, a probation officer should be able to reactivate any conditions of the preventive measure to ensure that the person does not pose a high risk to the community or any class of people. The Review Authority (see R131–R141) should annually review any reactivated conditions. 

Te ao Māori and the preventive regimes (Chapter 6) 

R12 When imposing a preventive measure, the new Act should require the court to consider whether the preventive measure should be administered by placing the person within the care of a Māori group or a member of a Māori group such as: a. an iwi, hapū or whānau; b. a marae; or c. a group with rangatiratanga responsibilities in relation to the person. 

PART 3: ELIGIBILITY 

Age of eligibility (Chapter 7) 

R13 To be eligible for a preventive measure, the new Act should require that a person is aged 18 years or older at the time of an application. 

Qualifying offences (Chapter 8) 

R14 To be eligible for a preventive measure, the new Act should require that a person has been subject to a sentence of imprisonment for a conviction of a qualifying offence. 

R15 Qualifying offences should be the same for all preventive measures. 

R16 Qualifying offences should continue to focus on sexual and violent offending. 

R17 Qualifying offences should be those offences set out in Appendix 1 of this Report.   

R18 Imprisonable offences under the Films, Videos, and Publications Classification Act 1993 that are currently qualifying offences for an extended supervision order should be qualifying offences for all preventive measures. 

R19 The offence of strangulation or suffocation (section 189A of the Crimes Act 1961) should be a qualifying offence. 

R20 The following offences should not be qualifying offences: a. Incest (section 130 of the Crimes Act 1961). b. Bestiality (section 143 of the Crimes Act 1961). c. Accessory after the fact to murder (section 176 of the Crimes Act 1961). 

R21 All qualifying offences should be further qualifying offences for the purpose of the application of the legislative tests in R25 except: a. imprisonable Films, Videos, and Publications Classifications Act 1993 offences; b. attempts and conspiracies to commit qualifying offences; and c. Prostitution Reform Act 2003 offences. 

Overseas offending (Chapter 9) 

R22 A person convicted of an offence overseas should be eligible for a preventive measure if the offence would come within the meaning of a qualifying offence as defined under the new Act had it been committed in Aotearoa New Zealand and the person: a. has arrived in Aotearoa New Zealand within six months of ceasing to be subject to any sentence, supervision conditions or order imposed on the person for that offence by an overseas court; and i. since that arrival, has been in Aotearoa New Zealand for less than six months; and ii. resides or intends to reside in Aotearoa New Zealand; or b. has been determined to be a returning prisoner and is subject to release conditions under the Returning Offenders (Management and Information) Act 2015; or c. is a returning offender to whom Subpart 3 of Part 2 of the Returning Offenders (Management and Information) Act 2015 applies and who is subject to release conditions under that Act.   

PART 4: IMPOSING PREVENTIVE MEASURES 

Legislative tests for imposing preventive measures (Chapter 10) 

R23 All proceedings for the imposition of a preventive measure should commence by application to the court from the chief executive of Ara Poutama Aotearoa | Department of Corrections for an order for a specific preventive measure. 

R24 Jurisdiction to hear and determine applications for preventive measures should be as follows: a. Te Kōti-ā-Rōhe | District Court should have first instance jurisdiction to determine applications for community preventive supervision. b. Te Kōti Matua | High Court should have first instance jurisdiction to determine applications for residential preventive supervision and secure preventive detention. c. Where the chief executive of Ara Poutama Aotearoa | Department of Corrections applies for preventive measures in the alternative, they should apply to te Kōti Matua | High Court. 

R25 The new Act should provide that the court may impose a preventive measure on an eligible person if it is satisfied that: a. the person is at high risk of committing a further qualifying offence in the next three years if the preventive measure is not imposed on them; b. having regard to the nature and extent of that risk, the preventive measure is the least restrictive measure adequate to address that risk; and c. the nature and extent of any limits the preventive measure would place on the person’s rights and freedoms affirmed under the New Zealand Bill of Rights Act 1990 are justified by the nature and extent of the risk the person poses to the community. 

R26 In deciding whether the tests in R25 are met, the court should take into account: a. any health assessor reports before the court; b. whether the person has, or has had, a pattern of serious offending; c. any efforts made by the person to address the cause or causes of all or any of those offences; d. whether and, if so, how a preventive measure imposed can be administered by Ara Poutama Aotearoa | Department of Corrections (or on its behalf); e. any other possible preventive measure that the court could impose that would comply with those tests; and f. any other information relevant to whether the tests in R25 are met. 

R27 Special conditions of community preventive supervision or residential preventive supervision should be set in the following way: a. An application for either measure should include any special condition sought. b. The court determining the application should apply the tests in R25 to the whole application, including the special conditions sought. c. An order imposing community preventive supervision or residential preventive supervision should include any special conditions of the measure. 

R28 If the court is not satisfied the tests in R25 are met in respect of the measure sought in the application, the new Act should confer on the court the power in the same proceedings to impose a less restrictive preventive measure if satisfied the tests are met in respect of that measure. 

R29 Before an application for a preventive measure is finally determined, the court should have power to impose any preventive measure on an interim basis in the following circumstances: a. An eligible person is, or is about to be, released from detention. b. An eligible person who is a returning offender arrives, or is about to arrive, in Aotearoa New Zealand. c. The court directs the chief executive of Ara Poutama Aotearoa | Department of Corrections (chief executive) to consider an application in respect of a person under section 45 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or under section 29 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. d. The chief executive makes an application to escalate a person to a more restrictive measure. 

R30 To impose an interim preventive measure, the court should be satisfied the primary legislative tests in R25 are made out on the available evidence in support of the application for the interim measure. 

R31 If the court imposes community preventive supervision or residential preventive supervision as an interim preventive measure, the standard conditions of that measure should apply. The court should also have the power to impose any special conditions that may be imposed under that measure.   

Evidence of reoffending risk (Chapter 11) 

R32 The chief executive of Ara Poutama Aotearoa | Department of Corrections should file with the court: a. two health assessor reports to accompany an application to impose residential preventive supervision or secure preventive detention on an eligible person; and b. one health assessor report to accompany an application to impose community preventive supervision on an eligible person. 

R33 The health assessor reports should address whether: a. the person is at high risk of committing a further qualifying offence in the next three years if the preventive measure is not imposed on them; and b. having regard to the nature and extent of that risk, the preventive measure is the least restrictive measure adequate to address that risk. 

R34 The new Act should define a health assessor as a health practitioner who: a. is, or is deemed to be, registered with Te Kaunihera Rata o Aotearoa | Medical Council of New Zealand specified by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of medicine and who is a practising psychiatrist; or b. is, or is deemed to be, registered with Te Poari Kaimātai Hinengaro o Aotearoa | New Zealand Psychologists Board specified by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of psychology. 

R35 The court should be able to direct, on its own initiative, that a report or reports prepared by health assessors be provided. R36 A person against whom an application for a preventive measure is made should be able to file a report or reports prepared by health assessors they have engaged. 

R37 A person against whom a preventive measure is sought should have public funding available to them to obtain: a. two health assessor reports if the application against them is to impose residential preventive supervision or secure preventive detention; and b. one health assessor report if the application against them is to impose community preventive supervision. 

R38 The new Act should provide that the court may receive and consider any evidence or information it thinks fit in proceedings under the new Act, whether or not it would otherwise be admissible. The rules applying to privilege and confidentiality under Subpart 8 of Part 2 of the Evidence Act 2006 and rules applying to legal professional privilege should continue to apply. 

Proceedings under the new Act (Chapter 12) 

R39 Te Kōti Matua | High Court and te Kōti-ā-Rohe | District Court should hear and determine applications for preventive measures under their criminal jurisdiction. 

R40 The new Act should provide for a right of appeal to te Kōti Pīra | Court of Appeal against decisions by te Kōti Matua | High Court or te Kōti-ā-Rohe | District Court determining an application to: a. impose a preventive measure; b. impose a preventive measure on an interim basis; c. review a preventive measure; d. terminate a preventive measure; or e. escalate a person to a more restrictive measure (including to a prison detention order). 

R41 Part 6 of the Criminal Procedure Act 2011 should, with the necessary modifications, apply to the appeal as if it were an appeal against sentence. 

R42 The lodging of an appeal should not prevent the decision appealed against taking effect according to its terms. 

R43 When a court hears and determines applications for the imposition or review of a preventive measure in respect of a person, the new Act should require the court to consider any views expressed by the person’s family, whānau, hapū, marae or iwi or anyone holding a shared sense of whānau identity with the person. 

R44 The government should continue to develop and support ways to facilitate the court to hear views from family, whānau, hapū, marae, iwi and other people holding a shared sense of whānau identity.   

R45 The chief executive of Ara Poutama Aotearoa | Department of Corrections should, as soon as practicable, notify each victim of a person who is considered for or subject to a preventive measure: a. that an application for a preventive measure has been made; b. of the outcome of an application when the application is determined or abandoned; c. of any special conditions that are imposed on a person subject to community preventive supervision or residential preventive supervision and when these are varied or terminated; d. that an application to the court for review or termination of a preventive measure has been made; e. of the outcome of any review conducted by the court; f. that the person subject to a preventive measure has died; g. that the person subject to a preventive measure has escaped from a secure facility; or h. that the person subject to community preventive supervision or residential preventive supervision has been convicted of a breach of their conditions. 

R46 The new Act should provide that notification to victims regarding special conditions may be withheld if disclosure would unduly interfere with the privacy of any other person. 

R47 The new Act should: a. entitle victims to make written submissions and, with the leave of the court, oral submissions when the court is determining an application to impose or review a preventive measure; and b. provide that victims may be represented by counsel and/or a support person or people if making an oral submission to the court. 

R48 For the purposes of the new Act, a victim should be defined as a person who: a. is a victim of a qualifying offence committed by a person: i. against whom an application for a preventive measure has been made; or ii. who is subject to a preventive measure imposed under the Act; and b. who has asked for notice or advice of matters or decisions or directions and copies of orders and conditions and has given their current address under section 32B of the Victims’ Rights Act 2002.   

R49 The new Act should protect information related to victims by: a. requiring that a person subject to a preventive measure or against whom an application for a preventive measure has been made: i. does not receive any information that discloses the address or contact details of any victim; and ii. does not retain any written submissions made by a victim; b. providing that the court may, on its own initiative or in response to an application, give directions or impose conditions on the disclosure or distribution of a victim’s submission if, in its opinion, it is necessary to protect the physical safety or security, emotional welfare or privacy of the victim concerned; and c. making it an offence for any person to publish information provided to the court for the purpose of making a victim submission that identifies, or enables the identification of, a victim of a person subject to an application or a preventive measure. 

R50 Court proceedings concerning preventive measures should generally be open to the public. 

R51 The court should have the power to make an order forbidding publication of: a. the name or any other identifying details of a person who is the subject of an application for, or subject to, a preventive measure; b. the whole or any part of the evidence given or submissions made in the proceedings; and/or c. any details of the measure imposed. 

R52 The court should have the power to make an order forbidding publication of a matter listed under R51 only if satisfied that publication would be likely to: a. cause undue hardship to the person who is the subject of an application for, or subject to, a preventive measure (the person); b. unduly impede the person’s ability to engage in rehabilitation and reintegration; c. create a real risk of prejudice to a fair trial; d. cause undue hardship to any victim of the person’s previous offending; e. endanger the safety of any person; f. lead to the identification of another person whose name is suppressed by order of law; or g. prejudice the maintenance of the law, including the prevention, investigation and detection of offences.   

R53 The court should have the power to make an order to clear the court if satisfied that: a. the order is necessary to avoid: i. undue disruption to the conduct of proceedings; ii. a real risk of prejudice to a fair hearing; iii. endangering the safety of any person; iv. undue hardship to the person who is the subject of an application for, or subject to, a preventive measure; or v. prejudicing the maintenance of the law, including the prevention, investigation and detection of offences; and b. a suppression order is not sufficient to avoid that risk. 

PART 5: ADMINISTRATION OF PREVENTIVE MEASURES 

Overarching operational matters (Chapter 13) 

R54 Ara Poutama Aotearoa | Department of Corrections should be responsible for the operation of preventive measures under the new Act. 

R55 The chief executive of Ara Poutama Aotearoa | Department of Corrections should appoint facility managers. 

R56 For facilities operated under a facility management contract, the contractor should appoint facility managers, subject to approval by the chief executive of Ara Poutama Aotearoa | Department of Corrections. 

R57 The chief executive of Ara Poutama Aotearoa | Department of Corrections should have the power to issue guidelines and instructions with which all facility managers should be required to comply. 

R58 The chief executive of Ara Poutama Aotearoa | Department of Corrections should have the power to enter into a contract with an appropriate external entity for the management of a residential facility (under residential preventive supervision) or a secure facility (under secure preventive detention).   

R59 Every facility management contract should: a. provide for objectives and performance standards no lower than those that apply to Ara Poutama Aotearoa | Department of Corrections; b. provide for the appointment of a suitable person as facility manager; and c. impose on the contracted entity a duty to comply with the new Act (including instructions and guidelines issued by the chief executive of Ara Poutama), the New Zealand Bill of Rights Act 1990, the Public Records Act 2005, sections 73 and 74(2) of the Public Service Act 2020 and all relevant international obligations and standards as if the facility were run by Ara Poutama. 

R60 The chief executive of Ara Poutama Aotearoa | Department of Corrections should have the power to take control of externally administered facilities in emergencies (as defined in section 134 of the Public Safety (Public Protection Orders) Act 2014). 

R61 The chief executive of Ara Poutama Aotearoa | Department of Corrections should appoint suitably qualified people to be independent inspectors. The chief executive should ensure that the number of inspectors appointed is sufficient for the operation of the new Act. 

R62 Anyone should be able to complain to an inspector about a breach of the rights of a person subject to a preventive measure. 

R63 An inspector may, on their own initiative or on receipt of a complaint against a probation officer, facility manager or facility staff, commence an investigation into an alleged breach of the new Act or any conditions imposed, or guidelines or directions issued under it. An inspector may decide not to investigate a complaint if satisfied that the complaint is frivolous or vexatious. 

R64 If, after investigating a complaint, the inspector is satisfied that the complaint has substance, the inspector should, as soon as is reasonable in the circumstances, either: a. conduct an inquiry (in accordance with the Inquiries Act 2013); or b. report the matter, together with any recommendations, to the relevant probation officer or facility manager. R65 An inspector should have to power to commence an inquiry into an alleged breach of the new Act or any conditions imposed, or guidelines or directions issued under it, on their own initiative. An inspector should commence an inquiry if directed to do so by the chief executive of Ara Poutama Aotearoa | Department of Corrections.   

R66 An inquiry should result in an inquiry report being prepared, which the inspector should send to: a. the relevant probation officer or facility manager; b. the chief executive of Ara Poutama Aotearoa | Department of Corrections; c. the person subject to the preventive measure concerned; and d. if applicable, any person who complained on behalf of the person subject to the preventive measure concerned. 

R67 Residential facilities and secure facilities should be subject to: a. examination by a National Preventive Mechanism under the Crimes of Torture Act 1989; and b. inspections every six months by inspectors appointed under the new Act to address the facilities’ compliance with all requirements under the new Act. 

R68 An inspection by an inspector appointed under the new Act should result in an inspection report being prepared, which the inspector should send to the relevant facility manager and the chief executive of Ara Poutama Aotearoa | Department of Corrections. 

R69 Probation officers, as well as facility managers and their staff, should have regard to the following guiding principles when exercising their powers: a. People subject to community preventive supervision must not be subject to any more restrictions of their rights and freedoms than are necessary to ensure the safety of the community. b. People subject to residential preventive supervision or secure preventive detention must have as much autonomy and quality of life as is consistent with the safety of the community and the orderly functioning and safety of the facility. c. People subject to any preventive measure must, to the extent compatible with the safety of the community, be given appropriate opportunities to demonstrate rehabilitative progress and prepared for moving to a less restrictive preventive measure or unrestricted life in the community. 

R70 The new Act should provide that people subject to a preventive measure are entitled to receive rehabilitative treatment and reintegration support. 

R71 Ara Poutama Aotearoa | Department of Corrections should ensure sufficient rehabilitative treatment and reintegration support is available to people subject to a preventive measure so that the duration of the preventive measure is limited to the shortest period necessary to protect the community from the high risk the person will commit a further qualifying offence. 

R72 The new Act should provide that each person subject to a preventive measure must have their needs assessed as soon as practicable after the measure is imposed. The assessment should identify any: a. medical requirements; b. mental health needs; c. needs related to any disability; d. needs related to education; e. needs related to therapeutic, recreational, cultural and religious activities; f. needs related to building relationships with the person’s family, whānau, hapū, iwi or other people with whom the person has a shared sense of whānau identity; g. steps to be taken to facilitate the person’s rehabilitation and reintegration into the community; and h. other matters relating to the person’s wellbeing and humane treatment. 

R73 The new Act should provide that each person subject to a preventive measure must have a treatment and supervision plan developed with them as soon as practicable after the completion of the initial needs assessment. The treatment and supervision plan should set out: a. the reasonable needs of the person based on the completed needs assessment; b. the steps to be taken to work towards the person’s restoration to safe and unrestricted life in the community; c. if applicable, the steps to be taken to work towards the person’s transfer to a less restrictive measure; d. the rehabilitative treatment and reintegration support a person is to receive; e. opportunities to participate in life in the community for people subject to residential preventive supervision or secure preventive detention; f. any matters relating to the nature and extent of the person’s supervision required to ensure the safety of the person, other residents of a facility, staff of the facility and the community; and g. any other relevant matters. 

R74 The person responsible for assessing the person’s needs and developing and administering the treatment and supervision plan should be: a. the probation officer responsible for supervising the person in the case of community preventive supervision; or b. the facility manager into whose care the person is placed in the cases of residential preventive supervision and secure preventive detention.   

R75 When undertaking a needs assessment or developing a treatment and supervision plan, the responsible person should be required to make reasonable efforts to consult with the person subject to the preventive measure. 

Community preventive supervision (Chapter 14) 

R76 Community preventive supervision should comprise standard conditions and any additional special conditions imposed by te Kōti-ā-Rohe | District Court. 

R77 When te Kōti-ā-Rohe | District Court imposes community preventive supervision, the following standard conditions should automatically apply. The person subject to community preventive supervision (the person) must: a. report in person to a probation officer in the probation area in which the person resides as soon as practicable, and not later than 72 hours, after commencement of the community preventive supervision measure; b. report to a probation officer as and when required to do so by a probation officer and notify the probation officer of their residential address and the nature and place of their employment when asked to do so; c. obtain the prior written consent of a probation officer before moving to a new residential address; d. report in person to a probation officer in the new probation area in which the person is to reside as soon as practicable, and not later than 72 hours, after the person’s arrival in the new area if the person is moving to a new probation area; e. not reside at any address at which a probation officer has, in writing, directed the person not to reside; f. not leave or attempt to leave Aotearoa New Zealand without the prior written consent of a probation officer; g. if a probation officer directs in writing, allow the collection of biometric information; h. obtain the prior written consent of a probation officer before changing their employment; i. not engage, or continue to engage, in any employment or occupation in which the probation officer has, in writing, directed the person not to engage or continue to engage; j. not associate with, or contact, a victim of their offending without the prior written approval of a probation officer; and k. not associate with, or contact, any specified person, or with people of any specified class, whom the probation officer has, in writing, directed the person not to associate with or contact unless the probation officer has defined conditions under which association or contact is permissible. 

R78 The new Act should provide that the kinds of special conditions that te Kōti-ā-Rohe | District Court may impose under R76 include, without limitation, conditions: a. to reside at a particular place; b. to be at the place of residence for up to eight hours in a 24-hour period; c. not to use a controlled drug or a psychoactive substance and/or consume alcohol; d. not to associate with any person, persons or class of persons; e. to take prescription medication; f. not to enter, or remain in, specified places or areas at specified times or at all times; g. not to associate with, or contact, a person under the age of 16 except with the prior written approval of a probation officer and in the presence and under the supervision of an adult who has been informed about the relevant offending and has been approved in writing by a probation officer as suitable to undertake the role of supervision; h. to submit to the electronic monitoring of compliance with any conditions that relate to the whereabouts of the person; and i. not to use any electronic device capable of accessing the internet without supervision. 

R79 The new Act should provide that a person subject to community preventive supervision must not be made subject to a special condition that requires them to take prescription medication unless the person: a. has been fully advised, by a person who is qualified to prescribe that medication, about the nature and likely or intended effect of the medication and any known risks; and b. consents to taking the prescription medication. 

R80 The new Act should provide that a person subject to community preventive supervision does not breach their conditions if they withdraw consent to taking prescription medication. 

R81 The new Act should provide that the following conditions must not be imposed as part of community preventive supervision: a. Any kind of detention. b. An intensive monitoring condition (in-person, line-of-sight monitoring). 

R82 Special conditions should, by default, be imposed for as long as the preventive measure is in place. Te Kōti-ā-Rohe | District Court, should, however, have the power to specify a shorter period for individual special conditions where it would otherwise not be the least restrictive measure. 

R83 Probation officers should be responsible for monitoring people’s compliance with conditions of community preventive supervision. 

R84 The new Act should state that the rights of people subject to community preventive supervision are only limited by standard and special conditions imposed on them in accordance with the new Act. 

R85 The new Act should clarify that the following rights (minimum entitlements) of a person subject to community preventive supervision may not be limited by a probation officer: a. Every person subject to community preventive supervision is entitled to be informed about conditions, instructions, entitlements, obligations and decisions that affect them. The information must be provided in a way that ensures that the person understands its nature and effect. b. Every person subject to community preventive supervision is entitled to be dealt with in a respectful manner, having regard to the person’s cultural and ethnic identity, language, and religious or ethical beliefs. c. Every person subject to community preventive supervision is entitled to make complaints about the probation officer responsible for managing their conditions to an inspector appointed in accordance with the new Act. 

Residential preventive supervision (Chapter 15) 

R86 Residential preventive supervision should comprise standard conditions and any additional special conditions imposed by te Kōti Matua | High Court. 

R87 When te Kōti Matua | High Court imposes residential preventive supervision, the following standard conditions should automatically apply. The person subject to residential preventive supervision (the resident) must: a. reside at the residential facility specified by the court; b. stay at that facility at all times unless leave is permitted by the facility manager; c. be subject to electronic monitoring for ensuring compliance with other standard or special conditions unless the facility manager directs otherwise in writing; d. be subject to in-person, line-of-sight monitoring during outings unless the facility manager directs otherwise in writing; e. not have in their possession any prohibited items (as currently defined in section 3 of the Public Safety (Public Protection Orders) Act 2014; f. submit to rub-down searches or searches of their room (in accordance with sections 89 and 93–96 of the Corrections Act 2004) for the purpose of detecting a prohibited item if the facility manager has reasonable grounds to believe that the resident has in their possession a prohibited item; g. hand over any prohibited items discovered in their possession; h. not associate with, or contact, a victim of the resident’s offending without the prior written approval of the facility manager; and i. not associate with, or contact, any specified person, or people of any specified class, whom the facility manager has, in writing, directed the resident not to associate with or contact unless the facility manager has defined conditions under which association or contact is permissible.  

R88 The new Act should provide that the kinds of special conditions that te Kōti Matua | High Court may impose under R86 include, without limitation, conditions: a. not to use a controlled drug or a psychoactive substance and/or consume alcohol; b. not to associate with any person, persons or class of persons; c. to take prescription medication; d. not to enter, or remain in, specified places or areas at specified times or at all times; e. not to associate with, or contact, a person under the age of 16 except with the prior written approval of a facility manager and in the presence and under the supervision of an adult who has been informed about the relevant offending and has been approved in writing by a facility manager as suitable to undertake the role of supervision; and f. not to use any electronic device capable of accessing the internet without supervision. 

R89 The new Act should provide that the resident may not be made subject to a special condition that requires them to take prescription medication unless the resident: a. has been fully advised, by a person who is qualified to prescribe that medication, about the nature and likely or intended effect of the medication and any known risks; and b. consents to taking the prescription medication. 

R90 The new Act should provide that the resident does not breach their conditions if they withdraw consent to taking prescription medication. 

R91 The new Act should set out a procedure for the responsible Minister to designate a residential facility by New Zealand Gazette notice. 

R92 The new Act should provide that rooms or units at a residential facility should be materially different from prison cells and provide each resident with privacy and a reasonable level of comfort.  

R93 The chief executive of Ara Poutama Aotearoa | Department of Corrections should have legal custody of the residents. 

R94 The facility manager should be entrusted with the residents’ care and be responsible for the day-to-day operation of the facility. 

R95 The manager of a residential facility should be able to delegate any of their powers under standard or special conditions to suitably qualified staff. 

R96 The new Act should state that residents’ rights are only limited by standard and special conditions imposed on them in accordance with the new Act. The new Act should provide for a non-exhaustive list of residents’ rights as set out in Appendix 2 of this Report. 

R97 The new Act should clarify that certain rights of residents (minimum entitlements) set out in Appendix 2 of this Report may not be limited by standard and special conditions imposed on them unless the security of the facility or the health or safety of a person is threatened. 

Secure preventive detention (Chapter 16) 

R98 The new Act should require that people subject to secure preventive detention (detainees) are detained in a secure facility and must not leave the facility without the permission of the facility manager. 

R99 Detainees should be in the custody of the chief executive of Ara Poutama Aotearoa | Department of Corrections. 

R100 The new Act should provide that secure facilities must conform to the following design features: a. Secure facilities must be separate from prison. b. Secure facilities must have rooms or separate, self-contained units where people subject to secure preventive detention reside. The rooms or units should be materially different from prison cells and provide the detainee with privacy and a reasonable level of comfort. 

R101 The new Act should set out a procedure for the responsible Minister to designate a secure facility by New Zealand Gazette notice. 

R102 To ensure the safety of the community or the orderly functioning and safety of a secure facility, the manager of the facility should have powers to: a. check and withhold certain written communications; b. inspect delivered items; c. monitor and restrict mail, phone calls and internet use; d. restrict contact with certain people outside a facility; e. conduct searches in accordance with Subpart 4 of Part 2 of the Corrections Act 2004 for the purpose of detecting a prohibited item (as currently defined in section 3 of the Public Safety (Public Protection Orders) Act 2014); f. inspect and take prohibited items; g. carry out drug or alcohol tests; h. seclude detainees; i. restrain detainees; j. take all reasonable steps to return an escaped detainee to custody, including calling for assistance from Ngā Pirihimana Aotearoa | New Zealand Police; and k. call on corrections officers to use physical force in a security emergency. 

R103 The manager of a secure facility should have the power to make appropriate rules for the management of the facility and for the conduct and safe custody of the detainees if authorised to do so by the chief executive of Ara Poutama Aotearoa | Department of Corrections. 

R104 The manager of a secure facility may delegate any of their powers, except the powers to make rules and to delegate, to suitably qualified staff. 

R105 The new Act should provide for a procedure for obtaining a warrant from a judge or, if unavailable, a registrar, and an empowering provision for Ngā Pirihimana Aotearoa | New Zealand Police to arrest an escapee without warrant where it is not reasonably practical to obtain one. 

R106 The new Act should state that detainees’ rights are only limited by provisions of the new Act. The new Act should provide for a non-exhaustive list of rights of detainees as set out in Appendix 2 of this Report. 

R107 The new Act should clarify that certain rights of detainees (minimum entitlements) set out in Appendix 2 of this Report may not be limited unless the security of the facility, or the health or safety of a person, is threatened.   

Non-compliance and escalation (Chapter 17) 

R108 The new Act should provide that a person subject to a preventive measure who breaches any conditions of that measure without reasonable excuse commits an offence and is liable on conviction to imprisonment for a term not exceeding one year or to a fine not exceeding $2,000. 

R109 For a person subject to community preventive supervision or residential preventive supervision, te Kōti Matua | High Court should have power to order that the preventive measure to which they are subject be terminated and a more restrictive type of preventive measure be imposed if: a. the person would, if they were to remain subject to the current preventive measure, pose such an unacceptably high risk to the community, themselves or others that they cannot be safely managed under that preventive measure; and b. less restrictive options for managing the behaviour of the person have been considered to a reasonable extent and any appropriate options have been tried. 

R110 The chief executive of Ara Poutama Aotearoa | Department of Corrections should be responsible for applying to the court for an order for a more restrictive type of preventive measure. The chief executive should file two health assessor reports to accompany the application. 

R111 Te Kōti Matua | High Court should have power to order that a person subject to secure preventive detention be detained in prison (a prison detention order) if: a. the person would, if they were to remain subject to secure preventive detention, pose such an unacceptably high risk to the community, themselves or others that they cannot be safely managed on secure preventive detention; and b. less restrictive options for managing the behaviour of the person have been considered to a reasonable extent and any appropriate options have been tried. 

R112 The chief executive of Ara Poutama Aotearoa | Department of Corrections should be responsible for applying to the Court for a prison detention order. The chief executive should file two health assessor reports to accompany the application. 

R113 The new Act should provide that people imprisoned subject to prison detention orders, to the extent possible, have the same rights as they would enjoy if detained in a secure facility.   

R114 Prison detention orders should remain in force until terminated by te Kōti Matua | High Court.  

R115 The new Act should provide for the following review procedure for prison detention orders: a. The same legislative test for imposing a prison detention order should apply for reviews of the order. b. Te Kōti Matua | High Court should review a prison detention order annually upon application by the chief executive of Ara Poutama Aotearoa | Department of Corrections (chief executive). c. A prison detention order should be reviewed by the Review Authority every six months or, if there is an application for a court review pending, within six months after te Kōti Matua | High Court has determined the last application for review. d. The chief executive and, with leave of the court, a person subject to a prison detention order should be able to apply to te Kōti Matua | High Court for the termination of a prison detention order. 

Duration and review of preventive measures (Chapter 18) 

R116 A preventive measure should be imposed indeterminately and remain in force until terminated by a court. 

R117 A preventive measure to which a person is subject should be suspended while that person is either subject to a determinate sentence of imprisonment or on remand in custody. 

R118 In the case of a prisoner serving a sentence of imprisonment, a preventive measure should reactivate at the person’s sentence expiry date or the date when the individual ceases to be subject to any release conditions, whichever is later. In the case of a prisoner on remand, the preventive measure should reactivate when the individual is released from custody. 

R119 If the person subject to a suspended preventive measure has been released on parole at the time of reactivation of the preventive measure, the Review Authority (R131–R141) should review the preventive measure as soon as is reasonably practical. The Review Authority should determine whether it should make the measure less restrictive or whether the relevant court should consider terminating the measure (R136). 

R120 A preventive measure to which a person is subject should terminate if a sentence of life imprisonment is imposed on that person. R121 A preventive measure to which a person is subject should continue in force while that person is serving a community-based sentence or a sentence of home detention. 

R122 A preventive measure to which a person is subject should be suspended while an interim preventive measure is in force in relation to that person. If the court declines the application for the new preventive measure to which the interim measure relates, the suspended preventive measure should reactivate. If the court grants the application for the new substantive preventive measure, the suspended preventive measure should terminate. 

R123 The chief executive of Ara Poutama Aotearoa | Department of Corrections should apply to the court for a review of a preventive measure no later than three years after it was imposed. For subsequent reviews, the chief executive should apply for a review of the preventive measure no later than three years after the court has finally determined the previous application for review (including any appeals). Any time spent while the preventive measure is suspended should not be included in the calculation of the three-year period. 

R124 Applications for a review of community preventive supervision should be made to te Kōti-ā-Rohe | District Court. Applications for the review of residential preventive supervision or secure preventive detention should be made to te Kōti Matua | High Court. 

R125 To accompany an application, the chief executive of Ara Poutama Aotearoa | Department of Corrections should submit at least: a. one health assessor report for the review of community preventive supervision or two health assessor reports for the review of residential preventive supervision and secure preventive detention; b. the person’s current treatment and supervision plan and a progress report from the facility manager (in the case of residential preventive supervision or secure preventive detention) or the probation officer (in the case of community preventive supervision); and c. the decisions of the Review Authority since the last court review. 

R126 The court should have the power to direct, on its own initiative, that additional health assessor reports be provided. The person subject to the preventive measure under review should be able to submit additional health assessor reports prepared by health assessors they have engaged. 

R127 The health assessor reports should address whether: a. the eligible person is at high risk of committing a further qualifying offence in the next three years if the person does not remain subject to the preventive measure; and b. having regard to the nature and extent of that risk, the preventive measure is the least restrictive measure adequate to address that risk. 

R128 When determining an application for review of a preventive measure, the court should review the ongoing justification for the measure by applying the same legislative tests that are used for imposing preventive measures (R25). 

R129 The court should determine an application for the review of a preventive measure by: a. confirming the preventive measure and, if applicable, its conditions; b. confirming the preventive measure but varying the special conditions of the preventive measure (in the case of community preventive supervision or residential preventive supervision) to make them less restrictive; c. terminating the preventive measure and imposing a less restrictive measure; or d. terminating the preventive measure without replacement. 

R130 If the court confirms the preventive measure, it should review the person’s treatment and supervision plan. It should have the power (but not be required) to do so if it orders the imposition of a less restrictive measure. The court should have the power to make recommendations to the person responsible for developing and administering the plan. 

R131 To provide additional reviews of preventive measures alongside court reviews, the new Act should provide for the establishment of a Review Authority as an independent statutory entity. 

R132 The Review Authority should operate in panels of three to four members, one of whom must be a panel convenor or the chairperson. A decision by a panel acting within its jurisdiction should be a decision of the Review Authority.   

R133 The Review Authority should have the following membership. It should: a. be chaired by a judge or former judge; b. include other judges or former judges or experienced barristers and solicitors as members and panel convenors; c. include psychiatrists and clinical psychologists as members; d. include members with Parole Board experience and have at least one member who is also a current member of the Parole Board; and e. include members with expertise in mātauranga Māori (including tikanga Māori). 

R134 The Review Authority should review a preventive measure annually except in the years during which an application for a court review of a preventive measure is pending. 

R135 The Review Authority should review the ongoing justification for a preventive measure by applying the same legislative tests that are used for imposing preventive measures (R25). 

R136 The Review Authority should conclude a review of a preventive measure by issuing a decision: a. confirming the ongoing justification for the preventive measure and, if applicable, its conditions; b. in the case of community preventive supervision or residential preventive supervision, confirming the ongoing justification for the preventive measure but varying the special conditions to make them less restrictive; or c. if it considers the preventive measure may no longer be justified, directing the chief executive of Ara Poutama Aotearoa | Department of Corrections to apply to the relevant court for a court review of the preventive measure. 

R137 If the Review Authority confirms a preventive measure, it should be required to review the person’s treatment and supervision plan. The Review Authority should have the power to make recommendations to the person responsible for developing and administering the plan. 

R138 The Review Authority should be able to regulate its own procedure. Review Authority hearings should be run in the manner of an inquiry and in an atmosphere that encourages people appearing before it to speak for themselves and as freely and frankly as possible. R139 The Review Authority should have the power to decide whether a hearing held by the Review Authority should be open or closed to the public. 

R140 The Review Authority should have the power to request information relevant to the review from the people responsible for the administration of a preventive measure. 

R141 The person subject to a preventive measure under review should be able to appear and make oral submissions to the Review Authority. They should be able to be represented by a lawyer. 

R142 The chief executive of Ara Poutama Aotearoa | Department of Corrections and the person subject to a preventive measure should be able to apply to the court to terminate the measure without replacement or to terminate the measure and replace it with a less restrictive measure. An application concerning community preventive supervision should be submitted to te Kōti-ā-Rohe | District Court. An application concerning residential preventive supervision or secure preventive detention should be submitted to te Kōti Matua | High Court. 

R143 When determining an application to terminate a preventive measure, the court should review the ongoing justification for the measure by applying the same legislative tests that are used for imposing preventive measures (R25). 

R144 If, following an application to terminate a measure without replacement, te Kōti Matua | High Court is not satisfied the measure should be terminated without replacement but is satisfied the measure should be terminated and replaced with a less restrictive measure instead, it should have the power to do so in the same proceedings. 

R145 If the court declines to order the termination of a measure following an application to terminate by the person subject to the measure, the court should be able at the same time, and on its own initiative or on application by the chief executive of Ara Poutama Aotearoa | Department of Corrections, to order that the person subject to the measure not be permitted to apply for termination of the measure for a specified period of not more than two years. 

R146 The chief executive of Ara Poutama Aotearoa | Department of Corrections and the person subject to community preventive supervision or residential preventive supervision should be able to apply to the Review Authority to vary the special conditions of community preventive supervision or residential preventive supervision. 

R147 The chief executive of Ara Poutama Aotearoa | Department of Corrections and the person subject to residential preventive supervision should be able to apply to the Review Authority to change the specific residential facility where the person subject to residential preventive supervision must stay.   

R148 The chief executive of Ara Poutama Aotearoa | Department of Corrections and the person subject to a preventive measure should have a right to appeal to the relevant court (te Kōti-ā-Rohe | District Court for community preventive supervision or te Kōti Matua | High Court for residential preventive supervision) against a decision by the Review Authority to vary special conditions. 

Transitional provisions (Chapter 19) 

R149 Ara Poutama Aotearoa | Department of Corrections should consider the appropriate transitional arrangements to bring the new Act into effect.