89DPresumption in favour of concurrency

89D Presumption in favour of concurrency (1) If the driver licence or learner permit of an offender is suspended under section 89(4) or 89A(1) (***later suspension***) and the driver licence or learner permit of the offender has previously been suspended under— (a) either of those sections; or (b) the **Road Safety Act 1986**; or (c) regulations made under the **Road Safety Act 1986** or rules made under section 95D of that Act— the later suspension is presumed to operate concurrently with the earlier suspension, unless the court orders otherwise. (2) If a person is disqualified under section 89(1), (3) or (4) or 89A(1) from obtaining a driver licence or learner permit or from driving (***later disqualification***) and the offender has previously been disqualified from obtaining a driver licence or learner permit or from driving under— (a) any of those sections; or (b) the **Road Safety Act 1986**; or (c) regulations made under the **Road Safety Act 1986** or rules made under section 95D of that Act— the later disqualification is presumed to operate concurrently with the earlier disqualification, unless the court orders otherwise. (3) The presumption— (a) under subsection (1) does not apply if the **Road Safety Act 1986** or regulations made under that Act or rules made under section 95D of that Act require the suspension to be consecutive; (b) under subsection (2) does not apply if the **Road Safety Act 1986** or regulations made under that Act or rules made under section 95D of that Act require the disqualification to be consecutive. S. 89DA inserted by No. 56/2013 s. 32. 89DA Cancellation on disqualification If under this Division a court disqualifies a person from obtaining a driver licence or learner permit for any time without expressly cancelling any driver licence or learner permit held by that person, any driver licence or learner permit held by that person is, unless the order specifies otherwise, to be taken to have been cancelled by that order. S. 89DB inserted by No. 56/2013 s. 32. 89DB Effect of cancellation A driver licence or learner permit cancelled by a court under this Act is of no effect. Pt 4 Div. 4 (Heading and ss 89DC–89DH) inserted by No. 15/2014 s. 7. Division 4—Alcohol exclusion orders S. 89DC inserted by No. 15/2014 s. 7. 89DC Definitions ***alcohol exclusion order*** means an order under section 89DE; ***bar area*** means an area within a licensed premises that is set aside for the service of liquor for consumption on those premises; ***intoxicated***, in relation to a person, means the person's speech, balance, co‑ordination or behaviour is noticeably affected as a result of the consumption of liquor; ***licensed premises*** has the same meaning as in the **Liquor Control Reform Act 1998**; ***liquor*** has the same meaning as in the **Liquor Control Reform Act 1998**; ***major event*** has the same meaning as in the **Liquor Control Reform Act 1998**; ***offender*** means a person referred to in section 89DE(1); S. 89DC def. of *relevant offence* amended by Nos 42/2015 s. 26(1), 47/2016 s. 41(3), 16/2020 s. 24. ***relevant offence*** means any of the following offences— (b) manslaughter; (ba) homicide by firearm; (c) an offence against any of the following provisions of the **Crimes Act 1958**— (i) section 15A(1) (Causing serious injury intentionally in circumstances of gross violence); (ii) section 15B(1) (Causing serious injury recklessly in circumstances of gross violence); (iii) section 16 (Causing serious injury intentionally); (iv) section 17 (Causing serious injury recklessly); (v) section 18 (Causing injury intentionally or recklessly); (vi) section 19(1) (Offence to administer certain substances); (vii) section 20 (Threats to kill); (viii) section 22 (Conduct endangering life); (ix) section 23 (Conduct endangering persons); (x) section 24 (Negligently causing serious injury); (xi) section 29(1) (Using firearm to resist arrest etc.); (xii) section 30 (Threatening injury to prevent arrest); (xiii) section 31(1) (Assaults); (xiv) section 31A(1) (Use of firearms in the commission of offences); (xv) section 38(1) (Rape); (xvi) section 39(1) (rape by compelling sexual penetration); (xvii) section 40(1) (sexual assault); (xviia) section 41(1) (sexual assault by compelling sexual touching); (xviii) section 42(1) (assault with intent to commit a sexual offence); (xviiia) section 43(1) (threat to commit a sexual offence); (xviiib) section 46(1) (administration of an intoxicating substance for a sexual purpose); (xix) section 49A(1) (sexual penetration of a child under the age of 12); (xixa) section 49B(1) (sexual penetration of a child under the age of 16); (xx) section 49D(1) (sexual assault of a child under the age of 16); (xxa) section 49F(1) (sexual activity in the presence of a child under the age of 16); (xxb) section 49H(1) (causing a child under the age of 16 to be present during sexual activity); (xxi) section 49C(1) (sexual penetration of a child aged 16 or 17 under care, supervision or authority); (xxii) section 49E(1) (sexual assault of a child aged 16 or 17 under care, supervision or authority); (xxiia) section 49G(1) (sexual activity in the presence of a child aged 16 or 17 under care, supervision or authority); (xxiib) section 49I(1) (causing a child aged 16 or 17 under care, supervision or authority to be present during sexual activity); (xxv) section 44(1) (procuring sexual act by threat); (xxvi) section 45(1) (procuring sexual act by fraud); (xxvii) section 49K(1) (encouraging a child under the age of 16 to engage in, or be involved in, sexual activity); (xxviii) section 49L(1) (encouraging a child aged 16 or 17 under care, supervision or authority to engage in, or be involved in, sexual activity); (xxxi) section 63A (kidnapping); (xxxii) section 51C(1) (producing child abuse material); (xxxiia) section 51E(1) (administering a website used to deal with child abuse material); (xxxiib) section 51F(1) (encouraging use of a website to deal with child abuse material); (xxxiic) section 51I(1) (assisting a person to avoid apprehension); (xxxiii) section 49Q(1) (causing or allowing a sexual performance involving a child); (xxxiiia) section 49R(1) (inviting or offering a sexual performance involving a child). S. 89DD inserted by No. 15/2014 s. 7, amended by No. 37/2014 s. 10(Sch. item 151.6). 89DD Alcohol exclusion order (1) If a person has been charged with a relevant offence, the Director of Public Prosecutions or a police officer may make an application for an alcohol exclusion order. (2) An application for an alcohol exclusion order under this section must be filed and served on the accused who is the subject of the application— (a) in the case of a proceeding listed for a summary hearing in the Magistrates' Court, before the first mention hearing, or later with the leave of the court; or (b) in the case of a committal proceeding, before the committal mention hearing, or later with the leave of the court; or (c) in any other case, before the first directions hearing, or later with the leave of the court. S. 89DD(3) amended by No. 21/2015 s. 3(Sch. 1 item 47.2). (3) An application for an alcohol exclusion order may be withdrawn by the Director of Public Prosecutions or a police officer at any time before it is determined. (4) A court may also make an alcohol exclusion order in respect of an offender on the court's own motion if it is satisfied that the circumstances set out in section 89DE(1) apply to the offender. S. 89DD(5) inserted by No. 55/2014 s. 169(1). (5) When making an alcohol exclusion order, the Supreme Court may direct that any application for the variation of that order is to be made to the Magistrates' Court for determination. S. 89DE inserted by No. 15/2014 s. 7. 89DE When an alcohol exclusion order must be made (1) A court must make an alcohol exclusion order in respect of an offender if— (a) the court records a conviction against the offender for a relevant offence; and (b) the court is satisfied on the balance of probabilities that— (i) at the time of the relevant offence the offender was intoxicated; and (ii) the offender's intoxication significantly contributed to the commission of the relevant offence; and (c) the offender is not, or has not been, the subject of a previous alcohol exclusion order in relation to the circumstances that gave rise to the relevant offence. (2) The court is not required to call further evidence for the purposes of satisfying itself of the matters set out in subsection (1)(b). (3) The duration of an alcohol exclusion order is 2 years. (4) Subject to subsection (5), an alcohol exclusion order prohibits an offender from— (a) entering or remaining in any licensed premises characterised as a nightclub, bar, restaurant, cafe, reception centre or function centre; and (b) entering or remaining in the location of any major event; and (c) entering or remaining in a bar area of any licensed premises to which paragraph (a) or (b) does not apply; and (d) consuming or attempting to consume any liquor in any licensed premises to which paragraph (a) or (b) does not apply. (5) An alcohol exclusion order may be subject to exemptions that allow a person to enter or remain in a specified place for a specified purpose during the period of the order if— (a) the Court considers that there is a good reason why the person should be allowed to enter or remain in the place; and (b) the Court considers that it is appropriate in all the circumstances. (6) An alcohol exclusion order takes effect— (a) if the offender is not serving a custodial sentence for another offence and the order has not been made in combination with a custodial sentence, at the time the order is made; or (b) if the offender is serving a custodial sentence for another offence at the time the order is made or the order has been made in combination with a custodial sentence, on the offender's release from prison. (7) An alcohol exclusion order must state— (a) the name of the offender; and (b) the grounds on which the order is made; and (c) the conduct that is prohibited by the order; and (d) any exemptions imposed under subsection (5); and (e) when the order takes effect in accordance with subsection (6); and (f) the duration of the order. (8) If a court makes an alcohol exclusion order in respect of a person, it must not, for the duration of the order, in respect of that person— (a) make an exclusion order under Part 8A of the **Liquor Control Reform Act 1998** (except an order under section 148I(2)(a) of that Act); or (b) attach an alcohol exclusion condition as a condition of a community corrections order. S. 89DF inserted by No. 15/2014 s. 7. 89DF Offences for contravening alcohol exclusion order (1) A person in respect of whom an alcohol exclusion order is in effect must not, in contravention of the order, enter, remain or attempt to enter or remain in any place that the person knows or is reckless as to whether the place is— (a) a licensed premises characterised as a nightclub, bar, restaurant, cafe, reception centre or function centre; or (b) the location of a major event; or (c) a bar area of any licensed premises to which paragraph (a) or (b) does not apply— knowing that the order is in effect, or being reckless as to whether the order is in effect. Penalty: Level 7 imprisonment. (2) A person in respect of whom an alcohol exclusion order is in effect must not, in contravention of the order, consume or attempt to consume liquor in any place that the person knows or is reckless as to whether the place is a licensed premises, knowing that the order is in effect, or being reckless as to whether the order is in effect. Penalty: Level 7 imprisonment. (3) It is not a contravention of subsection (1) if the conduct contravening the order was caused by circumstances beyond the control of the accused and the accused had taken reasonable precautions to avoid committing an offence against subsection (1). (4) In proceedings for an offence against subsection (1) or (2), proof of the person the subject of the alcohol exclusion order being present in court when the order is made, or proof of service of the alcohol exclusion order on the person is admissible in evidence for the purpose of establishing that the person knows that an alcohol exclusion order is in effect and, in the absence of evidence to the contrary, is proof of that fact. S. 89DG inserted by No. 15/2014 s. 7. 89DG Variation of alcohol exclusion order (1) Any of the following may apply for variation of an alcohol exclusion order— (a) the person to whom the order applies; S. 89DG(1)(b) amended by No. 21/2015 s. 3(Sch. 1 item 47.3). (b) a police officer. S. 89DG(2) substituted by No. 55/2014 s. 169(2). (2) An application under subsection (1) must be made to the Magistrates' Court if— (a) the order was made by the County Court or the Magistrates' Court; or S. 89DG(2)(b) amended by No. 21/2015 s. 3(Sch. 1 item 47.4). (b) the order was made by the Supreme Court and the Supreme Court has given a direction under section 89DD(5). S. 89DG(2A) inserted by No. 55/2014 s. 169(2). (2A) For the purposes of subsection (2), the order made by the Supreme Court or County Court must be taken to have been made by the Magistrates' Court. S. 89DG(2B) inserted by No. 55/2014 s. 169(2). (2B) An application under subsection (1) must be made to the Supreme Court if— (a) the order was made by the Supreme Court; and (b) the Supreme Court has not given a direction under section 89DD(5). (3) On an application under subsection (1), the court may vary an alcohol exclusion order, if the court— (a) is satisfied that new facts or circumstances have arisen since the making or last variation of the order that make it appropriate for the order to be varied; and (b) is satisfied that there is a good reason why the person to whom the order applies should, or should not, be allowed to enter specified licensed premises; and (c) considers that it is appropriate in all the circumstances to do so. (4) If the court varies an exclusion order under this section, it may only make any of the following variations— (a) imposing a new exemption on an alcohol exclusion order; (b) varying or removing an existing exemption on an alcohol exclusion order. (5) The court must specify the date on which the alcohol exclusion order as varied takes effect. S. 89DG(6) inserted by No. 55/2014 s. 169(3). (6) An order of the Supreme Court or County Court that is varied by the Magistrates' Court under this section is taken for the purposes of enforcement to be an order of the Magistrates' Court. S. 89DH inserted by No. 15/2014 s. 7. 89DH Chief Commissioner to report on alcohol exclusion orders (1) The Chief Commissioner of Police must provide to the Minister for inclusion in the annual report of operations under Part 7 of the **Financial Management Act 1994** a report containing— (a) the number of applications made for alcohol exclusion orders during that financial year; and (b) the number of applications for alcohol exclusion orders that were withdrawn during that year; and (c) the number of applications for alcohol exclusion orders that were dismissed during that year; and (d) the number of alcohol exclusion orders made during that year; and (e) the number of persons charged with an offence against section 89DF(1) or (2) during that year; and (f) the number of charges for an offence under section 89DF(1) or (2) that resulted in a finding of guilt in that year; and (g) the number of contraventions of an alcohol exclusion order that were recorded by members of the police force during that year in respect of which no charge sheet was filed; and (h) a comparison with the immediately preceding 3 financial years of the information required under this subsection. (2) As soon as is practicable after the end of each financial year, the Director of Public Prosecutions must provide the Chief Commissioner of Police with the following information for the purposes of preparing a report under this section— (a) the number of applications made by the Director of Public Prosecutions for alcohol exclusion orders during that financial year; and (b) the number of applications for alcohol exclusion orders that were withdrawn during that year; and (c) the number of applications for alcohol exclusion orders that were dismissed during that year. Pt 4 Div. 5 (Heading and s. 89DI) inserted by No. 55/2014 s. 49. Division 5—Serious drug offender S. 89DI inserted by No. 55/2014 s. 49. 89DI Declaration by court that person is serious drug offender (1) On the conviction of a person by a court for a serious drug offence, the court must make an order declaring the person to be a serious drug offender. (2) In this section— ***serious drug offence*** has the same meaning as in section 3(1) of the **Confiscation Act 1997**. Pt 4A (Heading and ss 89E–89H) inserted by No. 22/2009 s. 6.