Australian Capital Territory Bills
[Index]
[Search]
[Download]
[Related Items]
[Help]
This is a Bill, not an Act. For current law, see the Acts databases.
JUSTICE AND COMMUNITY SAFETY LEGISLATION AMENDMENT BILL 2009
2009
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Justice and
Community Safety Legislation Amendment Bill 2009
Contents
Page
Part 1.1 Bail Act
1992 3
Part 1.2 Crimes
(Forensic Procedures) Act 2000 4
Part 1.3 Crimes
(Sentence Administration) Act 2005 8
Part 1.4 Crimes
(Sentencing) Act 2005 10
Part 1.5 Domestic
Violence and Protection Orders Act 2008 11
Part 1.6 Evidence
(Miscellaneous Provisions) Act 1991 14
Part 1.7 Liquor Act
1975 21
Part 1.8 Magistrates
Court Act 1930 22
Part 1.9 Residential
Tenancies Act 1997 23
2009
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Justice and Community
Safety Legislation Amendment Bill 2009
A Bill for
An Act to amend legislation about justice and community
safety
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Justice and Community Safety Legislation Amendment Act
2009.
(1) Section 3 and schedule 1, part 1.2, part 1.7 and part 1.9 commence on
the day after this Act’s notification day.
Note The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
(2) Schedule 1, part 1.1 and part 1.5 commences immediately after the
later of—
(a) the commencement of the Domestic Violence and Protection Orders Act
2008; and
(b) the commencement of this Act, section 3.
(3) Schedule 1, part 1.3 and part 1.4 commences immediately after the
later of—
(a) the commencement of the Children and Young People
Act 2008, schedule 1, part 1.4; and
(b) the commencement of this Act, section 3.
(4) Schedule 1, part 1.6 and part 1.8 commences immediately after the
commencement of the Crimes Legislation Amendment Act 2008, schedule
1, part 1.1.
This Act amends the legislation mentioned in schedule 1.
Schedule
1 Legislation
amended
(see s 3)
[1.1] Section
9F (6), definition of relevant person, note
substitute
Note The Domestic Violence and Protection Orders Act 2008, s
15 (1) defines a relevant person in relation to a person (the
original person) as any of the following people:
• a domestic partner or former domestic partner of the original
person (domestic partner is defined in the Legislation Act,
s 169 (1))
• a relative of the original person (relative is
defined in the Domestic Violence and Protection Orders Act 2008, s
15A)
• a child of a domestic partner or former domestic partner of the
original person
• a parent of a child of the original person
• someone who is or has been in a relevant relationship with the
original person (relevant relationship is defined in the
Domestic Violence and Protection Orders Act 2008, s 15).
Part
1.2 Crimes (Forensic Procedures) Act
2000
[1.2] Section
40, except note
substitute
40 Suspect in custody may be kept in custody for
carrying out forensic procedure
(1) This section applies if a magistrate orders the carrying out of a
forensic procedure on a suspect mentioned in section 32 (Circumstances in which
magistrate may order forensic procedure).
(2) If the suspect is in custody, the suspect may be detained in custody
for as long as reasonably necessary to carry out the forensic
procedure.
(3) An order made in the circumstances set out in section 32 (c)
operates despite any other law.
[1.3] New
sections 40A to 40D
in division 2.5.2, insert
40A Magistrate may order arrest etc of suspect not in
custody for carrying out forensic procedure
(1) This section applies if a magistrate orders the carrying out of a
forensic procedure on a suspect mentioned in section 32 (a forensic
procedure order).
(2) If the suspect is not in custody, the magistrate may, on the
application of an authorised applicant, also make an order (an arrest and
removal order) for—
(a) the arrest of the suspect for the purpose of carrying out the forensic
procedure; and
(b) the removal of the suspect to the place where the forensic procedure
is to be carried out.
(3) The magistrate may make an arrest and removal order only if satisfied
that—
(a) the order is necessary to ensure that the forensic procedure will be
carried out; or
(b) the suspect might destroy evidence that might be obtained by carrying
out the forensic procedure; or
(c) the order is otherwise justified.
(4) An authorised applicant may apply for an arrest and removal order in
relation to a suspect—
(a) when the authorised applicant applies for a forensic procedure order
in relation to the suspect; or
(b) at any time after a magistrate has made a forensic procedure order in
relation to the suspect.
40B Arrest, removal and detention of
suspect
(1) This section applies if a police officer has power to arrest a suspect
under an arrest and removal order.
(2) The police officer must—
(a) use the minimum amount of force necessary to arrest or remove the
suspect; and
(b) before removing the suspect, explain to the suspect the reason for the
arrest.
Note The Crimes Act 1900, s 252I requires that a responsible
person for a child be told if the child is arrested.
(3) The suspect may be detained in custody for as long as reasonably
necessary to carry out the forensic procedure.
40C Arrest and removal order—warrant to enter
premises
(1) This section applies if a magistrate makes an arrest and removal order
in relation to a suspect.
(2) An authorised applicant may apply to a magistrate for a warrant to
enter premises to arrest the suspect.
(3) The application must be sworn and state the grounds on which the
warrant is sought.
Note Swear an oath includes make an affirmation (see Legislation
Act, dict, pt 1, def swear).
(4) The magistrate may refuse to consider the application until the
authorised applicant gives the magistrate all the information the magistrate
requires about the application in the way the magistrate requires.
(5) The magistrate may issue a warrant only if satisfied that the warrant
is necessary to enable the arrest of the suspect.
(6) The warrant must state—
(a) that a police officer may, with any necessary assistance and force,
enter the premises to arrest the suspect; and
(b) the hours when the premises may be entered; and
(c) the date (within 7 days after the day the warrant is issued) that the
warrant ends.
(7) An authorised applicant may apply for a warrant in relation to a
suspect—
(a) when the authorised applicant applies for an arrest and removal order
in relation to the suspect; or
(b) at any time after a magistrate has made an arrest and removal order in
relation to the suspect.
40D Warrant to enter premises—announcement
before entry and copy of warrant
(1) A police officer must, before anyone enters premises under a warrant
mentioned in section 40C—
(a) announce that the officer is authorised to enter the premises;
and
(b) give anyone at the premises an opportunity to allow entry to the
premises; and
(c) if the occupier of the premises, or someone else who apparently
represents the occupier, is present at the premises—identify himself or
herself to the person.
(2) A police officer is not required to comply with subsection (1) if
the officer believes on reasonable grounds that immediate entry to the premises
is required to ensure—
(a) the safety of the officer or anyone assisting the officer;
or
(b) the safety of anyone at the premises; or
(c) that the effective execution of the warrant is not
frustrated.
(3) If an occupier of premises, or someone else who apparently represents
the occupier, is present at the premises while a warrant is being executed, the
police officer or anyone assisting must make available to the person a copy of
the warrant.
(4) In this section:
occupier, of premises, includes—
(a) a person believed on reasonable grounds to be an occupier of the
premises; and
(b) a person apparently in charge of the premises.
[1.4] Dictionary,
new definition of arrest and removal order
insert
arrest and removal order—see section 40A.
Part
1.3 Crimes (Sentence Administration)
Act 2005
[1.5] Section
26, new note
insert
Note The reference to an ACT correctional centre is, in relation to
a CYP young offender, a reference to a detention place under the
Children and Young People Act 2008. A CYP young offender is a young
offender required under the Crimes (Sentencing) Act 2005, section 133H to
serve his or her sentence of imprisonment at a detention place (see this Act, s
320C).
[1.6] Sections
320B and 320C
substitute
320B Youth justice principles to be
considered
(1) An entity exercising a function under this Act in relation to a CYP
young offender must consider the youth justice principles when dealing with the
offender.
(2) In this section:
CYP young offender means—
(a) a young offender serving a sentence of imprisonment at a detention
place; or
(b) a young offender serving a sentence (other than a sentence of
imprisonment)—
(i) who is under 18 years old; or
(ii) who is over 18 years old but for whom the chief executive (CYP) is
responsible in accordance with a decision under section 320F (Young
offenders—administration of sentences other than imprisonment).
youth justice principles—see the Children and Young
People Act 2008, section 94.
320C Young offenders and remandees—references
to correctional centre and Corrections Management Act
(1) A reference in part 4.2 (Serving full-time detention) to a
correctional centre or an ACT correctional centre is, in relation to a CYP young
offender, a reference to a detention place under the Children and Young
People Act 2008.
(2) A reference in this Act to the Corrections Management Act 2007
is, in relation to a young offender in detention under the Children and
Young People Act 2008 or a young remandee, a reference to the Children
and Young People Act 2008.
(3) In this section:
CYP young offender means a young offender required under the
Crimes (Sentencing) Act 2005, section 133H to serve his or her sentence
of imprisonment at a detention place.
[1.7] Section
320D (2), definition of CYP young offender
substitute
CYP young offender—see section 320B (2).
insert
• detention place
Part
1.4 Crimes (Sentencing) Act
2005
[1.9] Section
13 (3) (c), note
substitute
Note A good behaviour order that includes a rehabilitation program
condition must also include a probation condition or supervision condition (see
s 95 and s 133V).
[1.10] New
section 95 (2)
insert
(2) Subsection (1) does not apply to a good behaviour order for a young
offender if a supervision condition is included in the order under
section 133V (Supervision conditions—when required).
omit everything before paragraph (a), substitute
(2) In addition to the conditions mentioned in section
13 (3) (b) to (g), a good behaviour order for a young offender may
include—
[1.12] Section
133V (1) (b)
substitute
(b) a rehabilitation program condition; or
Part
1.5 Domestic Violence and Protection
Orders Act 2008
substitute
15 Who is a relevant
person?
(1) For this Act, relevant person, in relation to a person
(the original person) means—
(a) a domestic partner or former domestic partner of the original person;
or
Note A domestic partner need not be an adult (see
Legislation Act, s 169).
(b) a relative of the original person; or
(c) a child of a domestic partner or former domestic partner of the
original person; or
(d) a parent of a child of the original person; or
(e) someone who is or has been in a relevant relationship with the
original person.
(2) In this section:
relevant relationship means an intimate relationship between
2 people other than a domestic partnership.
Note For the meaning of domestic partnership, see the
Legislation Act, s 169. It includes a civil partnership.
(3) For subsection (2), factors that indicate whether there is an intimate
relationship between 2 people include, but are not limited to, the
following:
(a) the extent to which each is personally dependent on the
other;
(b) the extent to which each is financially dependent on the other
(including any arrangements for financial support);
(c) the length of the relationship;
(d) if there is, or has been, a sexual relationship;
(e) the extent to which each is involved in, or knows about, the
other’s personal life;
(f) the degree of mutual commitment to a shared life;
(g) if the 2 people share care or support for children or other
dependents.
(4) Also for subsection (2)—
(a) an intimate relationship may exist between people although they are
not, or have not been, members of the same household; and
(b) an intimate relationship is not taken to exist between people only
because one of them provides a service for the other—
(i) for fee or reward; or
(ii) on behalf of another person (including a government or corporation);
or
(iii) on behalf of an organisation the principal objects or purposes of
which are charitable or benevolent.
15A Who is a relative?
For this Act, a relative of a person (the original
person)—
(a) means the original person’s—
(i) father, mother, grandfather, grandmother, stepfather, stepmother,
father-in-law or mother-in-law; or
(ii) son, daughter, grandson, granddaughter, stepson, stepdaughter,
son-in-law or daughter-in-law; or
(iii) brother, sister, half-brother, half-sister, stepbrother, stepsister,
brother-in-law or sister-in-law; or
(iv) uncle, aunt, uncle-in-law or aunt-in-law; or
(v) nephew, niece or cousin; and
(b) if the original person has or had a domestic partner (other than a
spouse)—includes someone who would have been a relative mentioned in
paragraph (a) if the original person had been legally married to the domestic
partner; and
Note Domestic partner—see the Legislation Act, s
169.
(c) includes—
(i) someone who has been a relative mentioned in paragraph (a) or (b)
of the original person; and
(ii) anyone else who could reasonably be considered to be, or have been, a
relative of the original person.
Examples—par (c)
(ii)
1 if the original person is an Aboriginal or Torres Strait Islander, the
following people:
(a) a person the original person has responsibility for, or an interest in,
in accordance with the traditions and customs of the original person’s
Aboriginal or Torres Strait Islander community;
(b) a person who has responsibility for, or an interest in, the original
person in accordance with the traditions and customs of the original
person’s Aboriginal or Torres Strait Islander community
2 a person regarded and treated by the original person as a relative, for
example, as an uncle or aunt
Note 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 Legislation Act, s 126 and s 132).
[1.14] Dictionary,
definitions of relative and relevant person
substitute
relative—see section 15A.
relevant person—see section 15.
Part
1.6 Evidence (Miscellaneous
Provisions) Act 1991
[1.15] Section
38 (2) (c)
substitute
(c) a sentencing proceeding for a person convicted or found guilty of a
sexual offence, whether or not the person is also convicted or found guilty of
any other offence; or
[1.16] Section
38 (4), note
insert
Note 1 A complainant is not required to attend and give evidence at
a committal proceeding in relation to a sexual offence (see Magistrates Court
Act 1930, s 90AA (11A)).
Note 2 A witness must not be cross-examined at a committal hearing
in relation to a sexual offence if the witness is a complainant in relation to
the offence (see Magistrates Court Act 1930, s 90AB (1)).
[1.17] Section
38A (1) (c)
substitute
(c) a sentencing proceeding for a person convicted or found guilty of a
violent offence, whether or not the person is also convicted or found guilty of
any other offence; or
substitute
38B Meaning of relevant person—div
4.2
(1) For this division, relevant person, in relation to a
person (the original person) means—
(a) a domestic partner or former domestic partner of the original person;
or
Note A domestic partner need not be an adult (see
Legislation Act, s 169).
(b) a relative of the original person; or
(c) a child of a domestic partner or former domestic partner of the
original person; or
(d) a parent of a child of the original person; or
(e) someone who is or has been in a relevant relationship with the
original person.
(2) In this section:
relevant relationship means an intimate relationship between
2 people other than a domestic partnership.
Note For the meaning of domestic partnership, see the
Legislation Act, s 169. It includes a civil partnership.
(3) For subsection (2), factors that indicate whether there is an intimate
relationship between 2 people include, but are not limited to, the
following:
(a) the extent to which each is personally dependent on the
other;
(b) the extent to which each is financially dependent on the other
(including any arrangements for financial support);
(c) the length of the relationship;
(d) if there is, or has been, a sexual relationship;
(e) the extent to which each is involved in, or knows about, the
other’s personal life;
(f) the degree of mutual commitment to a shared life;
(g) if the 2 people share care or support for children or other
dependents.
(4) Also for subsection (2)—
(a) an intimate relationship may exist between people although they are
not, or have not been, members of the same household; and
(b) an intimate relationship is not taken to exist between people only
because one of them provides a service for the other—
(i) for fee or reward; or
(ii) on behalf of another person (including a government or corporation);
or
(iii) on behalf of an organisation the principal objects or purposes of
which are charitable or benevolent.
38BA Meaning of relative—div
4.2
For this division, a relative of a person (the original
person)—
(a) means the original person’s—
(i) father, mother, grandfather, grandmother, stepfather, stepmother,
father-in-law or mother-in-law; or
(ii) son, daughter, grandson, granddaughter, stepson, stepdaughter,
son-in-law or daughter-in-law; or
(iii) brother, sister, half-brother, half-sister, stepbrother, stepsister,
brother-in-law or sister-in-law; or
(iv) uncle, aunt, uncle-in-law or aunt-in-law; or
(v) nephew, niece or cousin; and
(b) if the original person has or had a domestic partner (other than a
spouse)—includes someone who would have been a relative mentioned in
paragraph (a) if the original person had been legally married to the domestic
partner; and
Note Domestic partner—see the Legislation Act, s
169.
(c) includes—
(i) someone who has been a relative mentioned in paragraph (a) or (b)
of the original person; and
(ii) anyone else who could reasonably be considered to be, or have been, a
relative of the original person.
Examples—par (c)
(ii)
1 if the original person is an Aboriginal or Torres Strait Islander, the
following people:
(a) a person the original person has responsibility for, or an interest in,
in accordance with the traditions and customs of the original person’s
Aboriginal or Torres Strait Islander community;
(b) a person who has responsibility for, or an interest in, the original
person in accordance with the traditions and customs of the original
person’s Aboriginal or Torres Strait Islander community
2 a person regarded and treated by the original person as a relative, for
example, as an uncle or aunt
Note 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 Legislation Act, s 126 and s 132).
[1.19] New
section 38C (3) (f)
insert
(f) the prosecutor.
[1.20] Section
40B (1) (b)
substitute
(b) a sentencing proceeding for a person convicted or found guilty of a
sexual offence, whether or not the person is also convicted or found guilty of
any other offence; or
[1.21] Section
40C (1) (b)
substitute
(b) a sentencing proceeding for a person convicted or found guilty of a
violent offence, whether or not the person is also convicted or found guilty of
any other offence; or
omit everything before paragraph (a), substitute
(2) The prosecutor must give to the accused person or the person’s
lawyer—
substitute
(3) The notice must state the following:
(a) each audiovisual recording the prosecutor intends to tender;
(b) that the accused person and the person’s lawyer are entitled to
see and listen to each recording at a police station or somewhere else decided
by the chief police officer;
(c) the person responsible (the responsible person) for
arranging access to each recording.
(4) For subsection (3) (c), the notice must state the responsible person
by—
(a) naming the person; or
(b) stating the occupant of a position prescribed by regulation.
[1.24] Section
40O (1) (b)
substitute
(b) a sentencing proceeding for a person convicted or found guilty of a
sexual offence, whether or not the person is also convicted or found guilty of
any other offence; or
[1.25] Section
41 (2) (b)
substitute
(b) a sentencing proceeding for a person convicted or found guilty of a
sexual offence, whether or not the person is also convicted or found guilty of
any other offence; or
[1.26] Section
41 (4), note
insert
Note 1 A complainant is not required to attend and give evidence at
a committal proceeding in relation to a sexual offence (see Magistrates Court
Act 1930, s 90AA (11A)).
Note 2 A witness must not be cross-examined at a committal hearing
in relation to a sexual offence if the witness is a complainant in relation to
the offence (see Magistrates Court Act 1930, s 90AB (1)).
[1.27] Section
41A (1) (b)
substitute
(b) a sentencing proceeding for a person convicted or found guilty of a
violent offence, whether or not the person is also convicted or found guilty of
any other offence; or
[1.28] Section
48 (2) (c)
substitute
(c) a sentencing proceeding for a person convicted or found guilty of a
sexual offence, whether or not the person is also convicted or found guilty of
any other offence; or
[1.29] Section
54, definition of criminal proceeding,
paragraph (b)
substitute
(b) a sentencing proceeding for a person convicted or found guilty of any
offence; or
[1.30] Dictionary,
definition of relevant person
substitute
relative, for division 4.2 (Sexual and violent offence
proceedings—general)—see section 38BA.
relevant person, for division 4.2 (Sexual and violent offence
proceedings—general)—see section 38B.
insert
Part 16 Validation
183 Validation of appointment
(1) The appointment of Robyn Davies as a member of the Liquor Licensing
Board purportedly made by the Minister under section 12 (1) (c)
(Membership of board) on 17 October 2008 is taken to be, and always to have
been, valid as if the instrument of appointment had been
properly—
(a) made (including having regard to the Legislation Act, section 228
(Consultation with appropriate Assembly committee)); and
(b) notified under the Legislation Act, section 61; and
(c) presented to the Legislative Assembly under the Legislation Act,
section 64 (1).
Note The instrument of appointment made by the Minister is
accessible at www.legislation.act.gov.au and is numbered DI2008-273.
(2) Without limiting subsection (1), and to remove any doubt, anything
done, or purporting to have been done by Robyn Davies under the appointment is
taken to be, and always to have been, as valid as if the instrument of
appointment had been properly—
(a) made; and
(b) notified under the Legislation Act, section 61; and
(c) presented to the Legislative Assembly in accordance with the
Legislation Act, section 64 (1).
184 Expiry—pt 16
This part expires on the day it commences.
Note If a law validates something that is or may otherwise be
invalid, the validating effect of the law does not end merely because of the
repeal of the law (see Legislation Act, s 88 (1)).
Part
1.8 Magistrates Court Act
1930
substitute
(1) If the informant has served a copy of a written statement on the
accused person in accordance with section 90, the court at the committal hearing
must (subject to subsection (3)) admit the statement (and any exhibit identified
in it) as evidence of the matters in it.
[1.33] Section
90AA (3A) (b)
omit
[1.34] New
section 90AA (11A )
insert
(11A) However, a person must not be required to attend and give evidence
at a committal hearing in relation to a sexual offence (whether or not the
hearing also relates to another sexual offence) if the person is a complainant
in relation to the sexual offence.
substitute
(12) In this section:
sexual offence means an offence against the Crimes Act
1900, part 3 (Sexual Offences), part 4 (Female genital mutilation) or
part 5 (Sexual servitude).
Part
1.9 Residential Tenancies Act
1997
insert
Part 12 Validation
142 Validation of selection
(1) The selection of Allan Anforth and Jennifer David to be members of the
Residential Tenancies Tribunal purportedly made by the Minister under
section 112 (5) (Membership) on 17 October 2008 is taken to be,
and always to have been, valid as if the instrument of selection had been
properly—
(a) made (including having regard to the Legislation Act, section 228
(Consultation with appropriate Assembly committee); and
(b) notified under the Legislation Act, section 61; and
(c) presented to the Legislative Assembly under the Legislation Act,
section 64 (1).
Note The instrument of selection made by the Minister is accessible
at www.legislation.act.gov.au and is numbered DI2008-272.
(2) Without limiting subsection (1), and to remove any doubt, anything
done, or purporting to have been done by Allan Anforth or Jennifer David as
members of the tribunal is taken to be, and always to have been, as valid as if
the instrument of selection had been properly—
(a) made; and
(b) notified under the Legislation Act, section 61; and
(c) presented to the Legislative Assembly in accordance with the
Legislation Act, section 64 (1).
143 Expiry—pt 12
This part expires on the day it commences.
Note If a law validates something that is or may otherwise be
invalid, the validating effect of the law does not end merely because of the
repeal of the law (see Legislation Act, s 88 (1)).
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2009.
2 Notification
Notified under the Legislation Act on 2009.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2009
[Index]
[Search]
[Download]
[Related Items]
[Help]