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This is a Bill, not an Act. For current law, see the Acts databases.
2012
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Contents
Page
2012
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Crimes Legislation Amendment Bill 2012 (No 2)
A Bill for
An Act to amend legislation about crimes, and for other purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Crimes Legislation Amendment Act 2012 (No 2).
This Act commences on the 7th day after its notification day.
Note The naming and commencement provisions automatically commence on
the notification day (see
, s 75 (1)).
This Act amends the following legislation:
•
•
•
•
•
•
•
•
•
•
.
substitute
35A Affray
(1) A person commits an offence if—
(a) the person engages in conduct; and
(b) the conduct is violence or the threat of violence; and
(c) the violence or threat is directed towards someone else; and
(d) the violence or threat would be likely to cause a reasonable person to fear for his or her safety.
Maximum penalty: imprisonment for 2 years.
(2) For subsection (1) (b), the violence, or the threat of violence, must involve more than words.
(3) In this section:
engage in conduct—see the Criminal Code
, section 13.
5 Meaning of sexual intercourse
in pt 3
Section 50 (1), definition of sexual intercourse,
paragraphs (a) and (b)
omit
the vagina or anus of a person
substitute
the genitalia of a female person or the anus of any person
6 Section 50 (1), new paragraph (ca)
insert
(ca) fellatio; or
after
(c)
insert
, (ca)
8 Section 50 (2), new definition of female person
insert
female person includes a transsexual person with a surgically constructed vagina.
insert
55A Sexual intercourse with young person under special care
(1) A person commits an offence if—
(a) the person engages in sexual intercourse with a young person; and
(b) the young person is under the person’s special care.
Maximum penalty: imprisonment for 10 years.
Note A reference to an offence includes a reference to a related ancillary offence, eg attempt (see Legislation Act
, s 189).
(2) Without limiting subsection (1), a young person is under a person’s special care if—
(a) the person is a teacher at a school, or a person with responsibility for students at a school, and the young person is a student at the school; or
(b) the person is a step-parent, foster carer or legal guardian of the young person; or
(c) the person provides religious instruction to the young person; or
(d) the person is the young person’s employer; or
(e) the person is the young person’s sports coach; or
(f) the person provides professional counselling to the young person; or
(g) the person is a health professional and the young person is the person’s patient; or
(h) the person is a custodial officer and the young person is a young detainee in the officer’s care, custody or control.
(3) Subsection (1) does not apply to a person if the person—
(a) was married to the young person at the time of the alleged offence; or
(b) is not more than 2 years older than the young person.
Note The defendant has an evidential burden in relation to the matters
mentioned in s (3) (see
, s 58).
(4) It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that the defendant believed on reasonable grounds that the young person was at least 18 years old.
Note The defendant has a legal burden in relation to the matters
mentioned in s (4) (see
, s 59).
(5) In this section:
custodial officer means—
(a) a police officer; or
(b) a corrections officer; or
(c) a youth detention officer under the Children and Young People Act 2008
, section 96; or
(d) a transfer escort under the Children and Young People Act 2008
, section 114; or
(e) a prison officer under the Crimes (Sentence Administration) Act 2005
, section 217.
employer, of a young person, includes someone authorised to—
(a) decide or vary the terms of the young person’s employment; or
(b) end the young person’s employment.
health professional includes—
(a) a health practitioner; and
(b) a registered health professional under the Health Professionals Act 2004
; and
(c) someone providing a health service.
health service—see the Human Rights Commission Act 2005
, section 7.
young detainee—see the Children and Young People Act 2008
, section 95.
young person means a person who is at least 16 years old, but not yet an adult.
Note Adult—see the Legislation Act
, dictionary, pt 1.
insert
61A Act of indecency with young person under special care
(1) A person commits an offence if—
(a) the person commits an act of indecency on, or in the presence of, a young person; and
(b) the young person is under the person’s special care.
Maximum penalty: imprisonment for 7 years.
Note A reference to an offence includes a reference to a related ancillary offence, eg attempt (see Legislation Act
, s 189).
(2) Without limiting subsection (1), a young person is under a person’s special care if—
(a) the person is a teacher at a school, or a person with responsibility for students at a school, and the young person is a student at the school; or
(b) the person is a parent, grandparent, step-parent, foster carer or legal guardian of the young person; or
(c) the person provides religious instruction to the young person; or
(d) the person is the young person’s employer; or
(e) the person is the young person’s sports coach; or
(f) the person provides professional counselling to the young person; or
(g) the person is a health professional and the young person is the person’s patient; or
(h) the person is a custodial officer and the young person is a young detainee in the officer’s care, custody or control.
(3) Subsection (1) does not apply to a person if the person—
(a) was married to the young person at the time of the alleged offence; or
(b) is not more than 2 years older than the young person.
Note The defendant has an evidential burden in relation to the matters
mentioned in s (3) (see
, s 58).
(4) It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that the defendant believed on reasonable grounds that the young person was at least 18 years old.
Note The defendant has a legal burden in relation to the matters
mentioned in s (4) (see
, s 59).
(5) In this section:
custodial officer—see section 55A (5).
employer, of a young person—see section 55A (5).
health professional—see section 55A (5).
young detainee—see the Children and Young People Act 2008
, section 95.
young person—see section 55A (5).
11 Alternative verdicts for certain
sexual offences
New section 70 (6)
insert
(6) If, on the trial of a person for an offence against section 55A (1), the jury is not satisfied that the accused is guilty of the offence but is satisfied that the accused is guilty of an offence against section 61A (1), the jury may find the accused not guilty of the offence charged but guilty of an offence against section 61A (1).
12 Indictment for act of
indecency
Section 72
omit
section 60 or 61
substitute
section 60, 61 or 61A
13 Destroying or damaging
property
Section 116 (3)
substitute
(3) A person commits an offence if—
(a) the person destroys or causes damage to property, other than by fire or explosive; and
(b) the property belongs to—
(i) someone else; or
(ii) the person and someone else; and
(c) the person intends to destroy or cause damage, or is reckless about destroying or causing damage, to the property; and
(d) the damage to the property does not exceed $5 000.
Maximum penalty: 50 penalty units, imprisonment for 2 years or both.
Note The defence of lawful authority applies in relation to the offence under s (3) (see Criminal Code
, s 43).
14 Summary disposal of certain
cases
Section 375 (1) (c)
substitute
(c) an offence against the Criminal Code
, section 310 (Aggravated robbery), section 311 (1) (b) (Burglary) or section 312 (Aggravated burglary).
Note Under the
, s 311 (1) (b), a person commits an offence if the person enters or remains in a building as a trespasser with intent to commit an offence that involves causing harm, or threatening to cause harm, to anyone in the building.
insert
(4A) To remove any doubt, for subsection (4) (b), property does not include
real property or any building at which the offence charged was allegedly
committed.
Part 3 Crimes (Child Sex Offenders) Act 2005
16 Schedule 1, part 1.1, new item 10A
insert
|
10A
|
|
, section 55A (1)
sexual intercourse with young person under special care
17 Schedule 2, part 2.1, new item 4A
insert
|
4A
|
|
, section 61A (1)
act of indecency with young person under special care
Part 4 Crimes (Sentencing) Act 2005
18 Sentencing—relevant
considerations
New section 33 (1) (wa)
insert
(wa) if the offender has complied with an order for assessment, treatment, referral or monitoring by the court alcohol and drug assessment service under section 40B (2)—that fact;
19 Sentencing—irrelevant
considerations
New section 34 (1) (fa)
insert
(fa) that the offender did not comply with an order for assessment, treatment, referral or monitoring by the court alcohol and drug assessment service under section 40B (2);
20 Pre-sentence report
matters
New section 40A (ja)
insert
(ja) whether the offender—
(i) is addicted to, or misuses, alcohol or a controlled drug; and
(ii) has been assessed, treated or monitored by the court alcohol and drug assessment service under section 40B;
insert
40B Pre-sentence report matters—court alcohol and drug assessment service
(1) This section applies if the offender is addicted to, or misuses, alcohol or a controlled drug.
(2) Before sentencing the offender, a court may order that the offender—
(a) be assessed by the court alcohol and drug assessment service (CADAS); and
(b) comply with any treatment, referral to treatment or monitoring by CADAS as a result of the assessment.
(3) A court must not make an order under subsection (2) without the offender’s consent.
(4) In making an order under subsection (2), the court may also order that the offender comply with any reasonable direction given by the director-general of the administrative unit responsible for the administration of the Corrections Management Act 2007
in relation to the assessment, treatment, referral or monitoring.
(5) If the court makes an order under subsection (2), the court may make an order requiring a clinician from CADAS to appear before the court at the time and place stated in the order for the sentencing of the offender.
22 Victim impact statements—use
in court
New section 52 (3) and (4)
insert
(3) The court must allow the statement to be read out in court if the maker of the statement wishes the statement to be given to the court in that way.
(4) If the maker of the statement wishes, a statement may be read out by audiovisual link if the maker of the statement was eligible to give evidence in the proceeding to which the statement relates by audiovisual link under the Evidence (Miscellaneous Provisions) Act 1991
—
(a) part 2 (Evidence of children); or
(b) part 4 (Evidence in sexual and violent offence
proceedings).
insert
612A Possessing offence—presumption if controlled precursor possessed to manufacture controlled drug
(1) This section applies if, in a prosecution for an offence against section 612 (5) (Possessing controlled precursor), it is proved that the defendant possessed a controlled precursor with the intention of using any of it to manufacture a controlled drug.
(2) It is presumed, unless the contrary is proved, that the defendant had the intention or belief about the sale of the drug required for the offence.
Note The defendant has a legal burden in relation to the matters mentioned in s (2) (see s 59).
omit
containing instructions
substitute
containing instructions,
in part 6.3, insert
614A Possessing tablet press
(1) A person commits an offence if—
(a) the person possesses a thing; and
(b) the thing is a tablet press; and
(c) the person is reckless about whether the thing is a tablet press.
Maximum penalty: 200 penalty units, imprisonment for 2 years or both.
(2) Subsection (1) does not apply to a person if the person has a reasonable excuse for possessing the tablet press.
Examples—reasonable excuse
1 to manufacture a regulated substance in accordance with authorisation under
the
2 to supply a regulated therapeutic good in accordance with authorisation
under the
3 to give the tablet press to a person authorised under the Medicines, Poisons and Therapeutic Goods Act 2008
to manufacture a regulated substance or to supply a regulated therapeutic good
Note 1 The defendant has an evidential burden in relation to the matters mentioned in s (2) (see s 58).
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see
, s 126 and s 132).
(3) In this section:
tablet press means an instrument or machine that may be used to manufacture a controlled drug in tablet form.
omit
containing instructions
substitute
containing instructions,
27 Participating
in a criminal group—causing harm
New section 653 (3) and
(4)
insert
(3) In the prosecution of an offence against subsection (2), it is not necessary to prove that the person threatened actually feared that the threat would be carried out.
(4) In this section:
threat includes the meaning given by section 402.
Note For further definition of threat, see the dictionary.
28 Participating in a criminal
group—property damage
Section 654 (1), new note
insert
Note The fault element of recklessness can be satisfied by proof of intention, knowledge or recklessness (see s 20 (4)).
after
carried
insert
out
30 Section 654 (4), definition of threat
substitute
threat includes the meaning given by section 402.
Note For further definition of threat, see the
dictionary.
Part 6 Domestic Violence and Protection Orders Act 2008
31 Schedule 1, table 1.2, new item 27A
insert
|
27A
|
|
55A
sexual intercourse with young person under special care
32 Schedule 1, table 1.2, new item 32A
insert
|
32A
|
|
61A
act of indecency with young person under special care
Part 7 Evidence (Miscellaneous Provisions) Act 1991
33 Meaning of witness—div
4.2A
Section 40D (1)
omit
the complainant
substitute
a witness
after
child
insert
on the day an audiovisual recording is made
35 Meaning of witness—div
4.2B
Section 40P (1) (a)
after
child
insert
on the day the proceeding started in the Magistrates Court
insert
43A Recording evidence given by audiovisual link in sexual offence proceedings
(1) This section applies if—
(a) a complainant or similar act witness gives evidence in a proceeding by audiovisual link under section 43; and
(b) the proceeding is a sexual offence proceeding.
(2) The complainant’s or similar act witness’s evidence given by audiovisual link must be recorded as an audiovisual recording.
(3) The recording is admissible as the complainant’s or similar act witness’s evidence in a related proceeding unless the court in the related proceeding otherwise orders.
(4) However, the court in the related proceeding may—
(a) refuse to admit any part of the recording in evidence; and
(b) if the court refuses to admit part of the recording in evidence—order that the part that is not admitted be deleted from the recording.
(5) A party to a related proceeding may apply to the court for an order that the complainant or similar act witness attend the hearing to give further evidence.
(6) The court must not make the order unless satisfied that—
(a) the applicant has become aware of something that the applicant did not know or could not reasonably have known when the recording was made; and
(b) if the complainant or similar act witness had given evidence in person at the hearing, the complainant or similar act witness could be recalled; and
(c) it is in the interests of justice to make the order.
(7) In this section:
related proceeding, in relation to the proceeding in which the evidence given by audiovisual link was recorded, means—
(a) a re-hearing or re-trial of, or appeal from, the hearing of the proceeding; or
(b) another proceeding in the same court as the proceeding for the offence, or another offence arising from the same, or the same set of, circumstances; or
(c) a civil proceeding arising from the offence.
37 Adult firearms
licences—genuine reasons to possess or use firearms
Table 61,
item 2
substitute
|
2
|
vermin control on rural land
|
2.1 For vermin control on rural land—the applicant has the permission
of the owner or occupier of the land to shoot vermin on the land.
2.2 For vermin control on land within a reserved area under the Nature
Conservation Act 1980
|
—the applicant has the permission of an officer of the ACT Parks and Conservation Service or ACT Forests or another authority prescribed by regulation, to shoot vermin on the land.
38 Regulation-making
power
Section 272 (2) (a)
before
acquisition
insert
manufacture,
Part 9 Magistrates Court Act 1930
39 Appeals to which div 3.10.2
applies
New section 208 (1) (g)
insert
(g) an appeal from an order of the court to disqualify a person from holding
or obtaining a driver licence under an automatic disqualification provision
under the
, division 4.2 (Licence suspension, disqualification and related matters), if the order is for a longer period than the minimum.
Note Automatic disqualification provision—see the Road Transport (General) Act 1999
, s 61A.
40 Jurisdiction of Childrens
Court
New section 288 (1) (e)
insert
(e) if a child and an adult are jointly charged with an offence—the proceeding against the child and the proceeding against the adult that arise out of the charge.
substitute
289 Procedure for proceedings where children jointly charged with adults
substitute
(1) If section 288 (1) (e) applies, a magistrate may, considering the nature of the alleged offence and the time and expense involved in carrying out hearings for the offence separately, order that the hearing for the offence against the child and the adult be heard together.
Note Section 288 (1) (e) applies if a child and an adult are jointly charged with an offence.
(2) Subsection (1) does not affect the operation of the Court Procedures Act 2004
, part 7A (Procedural provisions—proceedings involving children or
young people) in relation to the child.
insert
|
14A
|
55A
|
sexual intercourse with young person under special care
|
insert
|
19A
|
61A
|
act of indecency with young person under special care
|
Part 11 Supreme Court Act 1933
45 Schedule 2, part 2.2, new item 12A
insert
|
12A
|
|
55A
sexual intercourse with young person under special care
46 Schedule 2, part 2.2, new item 18A
insert
|
18A
|
|
61A
act of indecency with young person under special care
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 29 November 2012.
2 Notification
Notified under the
on 2012.
3 Republications of amended laws
For the latest republication of amended laws, see www.legislation.act.gov.au
.
© Australian Capital Territory 2012
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