(5) Where an application is made under subsection (1) by an authorized person, the authorized person shall cause notice of the application and the date, time and place fixed for the hearing of the application, to be served on the person who entered into the recognizance in relation to which the application is made and:
(a) if that person has a surety in respect of the recognizance—on the surety; and
(b) if that person has a probation officer in respect of the recognizance—on the probation officer.
(6) Where an application is made under subsection (1) by a person other than an authorized person, the person making the application shall cause notice of the application, and of the date, time and place fixed for the hearing of the application, to be served on the Director of Public Prosecutions or, if the Director of Public Prosecutions has not established an office in the State or Territory in which the application is made, on the Director of Legal Services, in that State or Territory, in the Attorney‑General’s Department, and:
(a) if the application is made by the person who entered into the recognizance and that person has a surety—on the surety;
(b) if the application is made by a surety in respect of the recognizance—on the person who entered into the recognizance; or
(c) if the application is made by a probation officer in respect of the recognizance—on the person who entered into the recognizance and, if that person has a surety in respect of the recognizance, on the surety.
(7) Where notice of an application under subsection (1) is served on a surety, the surety is entitled to appear on the hearing of the application and seek to be released from his or her liability as a surety in respect of the recognizance.
(8) Subject to subsections (9) and (10), where under this section a court varies the terms of a recognizance, a person who is a surety in respect of the recognizance, and is not released by the court from his or her liability, continues to be liable as a surety in respect of the recognizance as so varied.
(9) Where under this section a court varies the terms of a recognizance in respect of which a person is a surety:
(a) if the recognizance is varied by extending its duration—the surety ceases to be liable after the expiration of the period for which he or she agreed to be liable when he or she became a surety;
(b) if the recognizance is varied by altering a condition—the surety is not liable in respect of non‑compliance with that condition as altered; and
(c) if the recognizance is altered by the addition of a condition—the surety is not liable in respect of non‑compliance with the additional condition;
unless he or she agrees to be liable in respect of the recognizance as so varied.
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(10) Where under this section a court varies the terms of a recognizance in respect of which a person is a surety by altering a condition, the court shall give directions as to the extent (if any) to which the surety is to continue to be liable in respect of the condition as it existed before the alteration, and the surety continues to be liable in respect of the condition to that extent but not otherwise.
(11) Where under this section a court varies the terms of a recognizance:
(a) corresponding variations shall, by force of this subsection, be deemed to have been made to the conditions of the order in pursuance of which the recognizance was entered into; and
(b) section 20A applies to and in relation to the order, in respect of acts or things done or omitted to be done after the variation, as if references in that section to the conditions of the order were references to the conditions of the order as so deemed to be varied.
(12) In this section, authorized person means the Attorney‑General, the Director of Public Prosecutions or a person appointed under section 69 of the Judiciary Act 1903 to prosecute indictable offences against the laws of the Commonwealth.
20AB Additional sentencing alternatives
(1) A court may pass a sentence, or make an order, in respect of a person convicted before the court in a participating State or participating Territory of a federal offence, if:
(a) subsection (1AA) applies to the sentence or order; and
(b) under the law of the State or Territory, a court is empowered to pass such a sentence, or make such an order, in respect of a State or Territory offender in corresponding cases; and
(c) the first‑mentioned court is:
(i) empowered as mentioned in paragraph (b); or
(ii) a federal court.
(1AA) This subsection applies to a sentence or order that is:
(a) known as any of the following:
(i) an attendance centre order or attendance order;
(ii) a community based order;
(iii) a community correction order;
(iv) a community custody order;
(v) a community service order;
(vi) a community work order;
(vii) a drug or alcohol treatment order or rehabilitation order;
(viia) a residential treatment order;
(viii) a good behaviour order;
(ix) an intensive correction order;
(x) an intensive supervision order;
(xi) a sentence of periodic detention or a periodic detention order;
(xii) a sentence of weekend detention or a weekend detention order;
(xiii) a work order; or
(b) similar to a sentence or order to which paragraph (a) applies; or
(c) prescribed for the purposes of this subsection.
(1A) Where the law of a participating State or a participating Territory requires that before passing a sentence, or making an order, of the kind referred to in paragraph (1)(b) a court must first pass another sentence or make another order (whether or not that other sentence or other order is suspended upon the making of the first‑mentioned sentence or order), then, a court is not required, before passing or making that first‑mentioned sentence or order in respect of a person convicted by that court for a federal offence, to pass that other sentence or make that other order.
(1B) A court is not precluded from passing a sentence, or making an order, under subsection (1) only because the court is empowered under section 20AC, in relation to a person who has failed to comply with such a sentence or order, to take action that is, or may be, inconsistent with action that, under the law of a participating State or participating Territory, a court of that State or Territory is empowered to take for such a failure by a State or Territory offender.
(2) Where a court proposes to pass a sentence, or make an order, under subsection (1), it shall, before passing the sentence or making the order, explain or cause to be explained to the person in respect of whom it is proposed to pass the sentence or make the order, in language likely to be readily understood by him or her:
(a) the purpose and effect of the proposed sentence or order;
(b) the consequences that may follow if he or she fails, without reasonable cause or excuse, to comply with the proposed sentence or order or with any requirements made in relation to the proposed sentence or order by or under the provisions of the laws of the relevant State or Territory that will apply in relation to the proposed sentence or order by virtue of subsection (3); and
(c) if the proposed sentence or order may be revoked or varied under those provisions—that the proposed sentence or order may be so revoked or varied.
(3) Where a sentence or order referred to in subsection (1) is passed or made under that subsection in respect of a person convicted in a State or Territory of a federal offence, the provisions of the laws of the State or Territory with respect to such a sentence or order that is passed or made under those laws shall, so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth, apply, by virtue of this subsection, to and in relation to the sentence or order passed or made under subsection (1).
(4) Where a court passes a sentence, or makes an order, under subsection (1) in respect of a person convicted of an offence against the law of the Commonwealth, the court may also do all or any of the following:
(a) impose any fine or other pecuniary penalty that the court is empowered to impose on the person for the offence;
(b) make any order requiring the person to make reparation or restitution, or pay compensation, in respect of the offence that the court is empowered to make;
(c) make any other order that the court is empowered to make.
(5) Where a court passes a sentence, or makes an order, under subsection (1) in respect of a person, the court shall, as soon as practicable, cause the sentence or order to be reduced to writing and a copy of the sentence or order to be given to, or served on, the person.
(6) Subsection (1) does not permit a court (including a federal court) to pass a sentence, or make an order, that involves detention or imprisonment, in respect of the conviction of a person before the court of a minimum non‑parole offence mentioned in section 19AG.
Note: If the court sentences the person to imprisonment for the minimum non‑parole offence, it must fix a non‑parole period under section 19AG.
20AC Failure to comply with sentence passed, or order made, under subsection 20AB(1)
(1) In this section, the applied provisions, in relation to a sentence passed or an order made under subsection 20AB(1), means the provisions of the laws of a State or Territory that apply to and in relation to the sentence or order by virtue of subsection 20AB(3).
(2) Where a sentence has been passed, or an order has been made, under subsection 20AB(1) in respect of a person and information is laid before a magistrate, whether before or after the expiration of the period for which the sentence or order is to operate or operated, alleging that the person has, without reasonable cause or excuse, failed to comply with the sentence or order or with any requirements made in relation to the sentence or order by or under the applied provisions, the magistrate may:
(a) issue a summons directing the person to appear, on a date, at a time and at a place fixed in the summons, before the court by which the sentence was passed or the order was made; or
(b) if the information is laid on oath and the magistrate is of the opinion that proceedings against the person by summons might not be effective—issue a warrant for the apprehension of the person.
(3) Where:
(a) a person who is served with a summons issued under subsection (2) fails to attend before the court as required by the summons; or
(b) a person who has been admitted to bail under subsection (5) fails to attend before the court as required by the condition of his or her bail;
the court may, on proof of the service of the summons or of the admission of the person to bail, as the case may be, issue a warrant for the apprehension of the person.
(4) A warrant issued under subsection (2) or (3) shall authorize the apprehension of the person, the bringing of the person before the court as soon as practicable after his or her apprehension and the detention of the person in custody until he or she is released by order of the court or in accordance with subsection (5).
(5) Where a person is apprehended in pursuance of a warrant issued under subsection (2) or (3) and the court before which he or she is to be brought is not sitting at the time of his or her arrest, the person shall be brought before a magistrate, who may:
(a) admit the person to bail, on such recognizance (with or without sureties) as the magistrate thinks fit, on the condition that the person appears, on such date, at such time and at such place as the magistrate specifies, before that court; or
(b) direct that the person be kept in custody in accordance with the warrant.
(6) Where, in accordance with this section, a person in respect of whom a sentence has been passed, or an order has been made, under subsection 20AB(1) appears or is brought before the court by which the sentence was passed or the order was made, the court (whether or not constituted by the judge or magistrate who passed the sentence or made the order), if it is satisfied that the person has, without reasonable cause or excuse, failed to comply with the sentence or order or with any requirements made in relation to the sentence or order by or under the applied provisions, may:
(a) without prejudice to the continuance of the sentence or order, impose a pecuniary penalty not exceeding 10 penalty units on the person;
(b) revoke the sentence or order and, subject to subsection (7), deal with the person, for the offence in respect of which the sentence was passed or the order was made, in any manner in which he or she could have been dealt with for that offence if the sentence had not been passed or the order had not been made and he or she was before the court for sentence in respect of the offence; or
(c) take no action.
(7) Where a person in respect of whom a sentence has been passed, or an order has been made, under subsection 20AB(1) is dealt with under subsection (6) for the offence in respect of which the sentence was passed or the order was made, the court, in so dealing with the person, shall, in addition to any other matters that the court considers should be taken into account, take into account:
(a) the fact that the sentence was passed or the order was made;
(b) anything done under the sentence or order; and
(c) any fine or other pecuniary penalty imposed, and any other order made, for or in respect of the offence.
(8) Where a person in respect of whom a sentence has been passed, or an order has been made, under subsection 20AB(1) is dealt with under subsection (6) for the offence in respect of which the sentence was passed or the order was made, there shall be such rights of appeal in respect of the manner in which the person is dealt with for that offence as there would have been if:
(a) the court had, immediately before so dealing with him or her, convicted him or her of the offence; and
(b) the manner in which he or she is dealt with had been a sentence passed upon that conviction.
(9) Nothing in this section shall be taken to prevent a sentence passed, or an order made, under subsection 20AB(1) being revoked or varied under the applied provisions otherwise than for a failure to comply with the sentence or order or with any requirements made in relation to the sentence or order by or under the applied provisions.
(10) A pecuniary penalty imposed on a person by virtue of paragraph (6)(a) shall, for the purposes of the laws of the Commonwealth, and of the States and Territories, with respect to the enforcement and recovery of fines ordered to be paid by offenders, be deemed to be a fine imposed on the person upon his or her conviction for a federal offence.
Division 6—Unfitness to be tried
20B Consequences of preliminary finding that person unfit to be tried
(1) Where, in proceedings for the commitment of a person for trial of a federal offence on indictment, being proceedings begun after this section commences, the question of the person’s fitness to be tried in respect of the offence, is raised by the prosecution, the person or the person’s legal representative, the magistrate must refer the proceedings to the court to which the proceedings would have been referred had the person been committed for trial.
(2) If the court to which the proceedings have been referred finds the person charged to be fit to be tried, the court must remit the proceedings to the magistrate and proceedings for the commitment must be continued as soon as practicable.
(3) Where a court:
(a) to which proceedings have been referred under subsection (1); or
(b) before which a person appears in proceedings for trial of a federal offence on indictment, being proceedings begun after this section commences;
finds the person charged unfit to be tried, the court must determine whether there has been established a prima facie case that the person committed the offence concerned.
(4) Where a magistrate refers proceedings to a court under subsection (1), the magistrate may order the person charged to be detained in prison or in hospital for so long only as is reasonably necessary to allow the court to which the person is referred to determine whether it will make an order under subsection (2) remitting the person to the magistrate, an order under section 20BA dismissing the charge or an order under section 20BB detaining the person in prison or hospital or granting the person bail.
(5) Where a court finds a person, other than a person in respect of whom proceedings have been referred to it by a magistrate under subsection (1), to be unfit to be tried, the court may order the person to be detained in prison or hospital for so long only as is reasonably necessary to allow the court to determine whether it will make an order under section 20BA dismissing the charge or an order under section 20BB detaining the person in prison or hospital or granting the person bail.
(6) For the purposes of subsection (3), a prima facie case is established if there is evidence that would (except for the circumstances by reason of which the person is unfit to be tried) provide sufficient grounds to put the person on trial in relation to the offence.
(7) In proceedings to determine whether, for the purposes of subsection (3), a prima facie case has been established:
(a) the person may give evidence or make an unsworn statement; and
(b) the person may raise any defence that could properly be raised if the proceedings were a trial for that offence; and
(c) the court may seek such other evidence, whether oral or in writing, as it considers likely to assist in determining the matter.
20BA Upon determining prima facie case, court to dismiss charge or to determine fitness within 12 months