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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Crimes Legislation Amendment Bill 2021
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendments 3
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2021
New South Wales
Crimes Legislation Amendment Bill 2021
Act No , 2021
An Act to amend the Crimes Act 1900, the Crimes (High Risk Offenders) Act 2006, the Law
Enforcement (Powers and Responsibilities) Act 2002, the Surveillance Devices Act 2007, the
Terrorism (High Risk Offenders) Act 2017 and the Terrorism (Police Powers) Act 2002 for
particular purposes.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Crimes Legislation Amendment Bill 2021 [NSW]
The Legislature of New South Wales enacts--
1 Name of Act
This Act is the Crimes Legislation Amendment Act 2021.
2 Commencement
(1) This Act commences on the date of assent to this Act except as provided by
subsection (2).
(2) Schedule 1.1[2] commences on the day that is 6 months after the date of assent or an
earlier day or days to be fixed by proclamation.
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Crimes Legislation Amendment Bill 2021 [NSW]
Schedule 1 Amendments
Schedule 1 Amendments
1.1 Crimes Act 1900 No 40
[1] Section 308H Unauthorised access to or modification of restricted data held in
computer (summary offence)
Omit "not later than 12 months from when" from section 308H(4).
Insert instead "within 3 years of the date on which".
[2] Section 547E
Insert after section 547D--
547E Bestiality or animal crush material
(1) A person who produces or disseminates bestiality or animal crush material is
guilty of an offence.
Maximum penalty--The greater of the following--
(a) the maximum penalty for an offence against section 530(1), or
(b) imprisonment for 5 years.
(2) A person who possesses bestiality or animal crush material is guilty of an
offence.
Maximum penalty--Imprisonment for 3 years.
(3) Each of the following are defences in proceedings for an offence against this
section--
(a) the defendant did not know, and could not reasonably be expected to
have known, that the material the defendant produced, disseminated or
possessed was bestiality or animal crush material,
(b) the conduct engaged in by the defendant--
(i) was of public benefit, and
(ii) did not extend beyond what was of public benefit,
(c) the defendant was, at the time of the offence, a law enforcement officer
acting in the course of the defendant's duties and the conduct of the
defendant was reasonable in the circumstances for the purpose of
performing the duty,
(d) the material concerned was classified, whether before or after the
commission of the alleged offence, under the Classification
(Publications, Films and Computer Games) Act 1995 of the
Commonwealth, other than as refused classification (RC),
(e) the conduct engaged in by the defendant was necessary for or of
assistance in conducting scientific, medical or educational research
approved, authorised or otherwise permitted under a law of the State or
of another State, a Territory or the Commonwealth,
(f) for an offence involving possession of bestiality or animal crush
material, but without limiting the defences above--the material came
into the defendant's possession unsolicited and the defendant, as soon
as the defendant became aware of its nature, took reasonable steps to get
rid of it.
(4) Conduct is of public benefit for subsection (3)(b) only if the conduct is
necessary for or of assistance in--
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Crimes Legislation Amendment Bill 2021 [NSW]
Schedule 1 Amendments
(a) enforcing or administering a law of the State or of another State, a
Territory or the Commonwealth, or
(b) monitoring compliance with, or investigating a contravention of, a law
of the State, or of another State, a Territory or the Commonwealth, or
(c) the administration of justice.
(5) The question of whether a person's conduct is of public benefit is a question
of fact and the person's motives for engaging in the conduct are irrelevant.
(6) In this section--
bestiality or animal crush material means material that--
(a) depicts or describes--
(i) bestiality, or
(ii) an animal being crushed, burned, drowned, suffocated, impaled
or otherwise killed or subjected to serious injury, and
(b) is material that a reasonable person would regard in all the
circumstances as being intended or apparently intended to--
(i) excite or gratify a sexual interest, or
(ii) excite or gratify a sadistic or other perverted interest in violence
or cruelty.
data includes--
(a) information in any form, or
(b) a program or part of a program.
disseminate bestiality or animal crush material, includes--
(a) send, supply, exhibit, transmit or communicate the material to another
person, or
(b) make the material available for access by another person, or
(c) enter into an agreement or arrangement to do so.
material includes a film, printed matter, data or other thing of any kind,
including a computer image or another depiction.
possess bestiality or animal crush material includes, in relation to material in
the form of data, being in possession or control of data, within the meaning of
section 308F(2).
produce bestiality or animal crush material includes--
(a) film, photograph, print or otherwise make bestiality or animal crush
material, or
(b) alter or manipulate an image for the purpose of making bestiality or
animal crush material, or
(c) enter into an agreement or arrangement to do so.
1.2 Crimes (High Risk Offenders) Act 2006 No 7
[1] Section 5 Definitions of "serious sex offence" and "offence of a sexual nature"
Omit section 5(1)(b4) and (b5). Insert instead--
(b4) an offence against the Commonwealth Criminal Code, section 272.8,
272.10, 272.11, 272.12, 272.13, 272.14, 272.15, 272.15A, 272.19 or
273.7,
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Crimes Legislation Amendment Bill 2021 [NSW]
Schedule 1 Amendments
(b5) an offence against the Commonwealth Criminal Code, section 471.22,
471.24, 471.25, 471.25A, 474.23A, 474.24A, 474.25B, 474.26, 474.27
or 474.27AA,
[2] Section 5(2)(h3) and (h4)
Omit the paragraphs. Insert instead--
(h3) an offence against the Commonwealth Criminal Code, section 272.9,
272.18, 272.20, 273.6 or 273A.1,
(h4) an offence against the Commonwealth Criminal Code, section 471.19,
471.20, 471.26, 474.22, 474.22A, 474.23, 474.25A or 474.27A,
[3] Section 28B
Insert after section 28A--
28B Protected records inadmissible
(1) A protected record, or evidence of the contents of a protected record, is not
admissible in proceedings before a court, tribunal, authority or other body or
person.
(2) A person cannot be compelled in the proceedings to--
(a) produce a protected record, or a copy of or extract from a protected
record, or
(b) disclose or give evidence of the contents of a protected record.
(3) In this section--
protected record means any of the following--
(a) the minutes of a meeting of the Assessment Committee or a
sub-committee, or a copy of or extract from the minutes,
(b) another record of the deliberations of the Assessment Committee or a
sub-committee, or a copy of or extract from the record.
sub-committee means a sub-committee formed by the Assessment Committee
under section 24AD.
[4] Schedule 2 Savings, transitional and other provisions
Insert at the end of the Schedule--
Part 11 Provisions consequent on enactment of Crimes
Legislation Amendment Act 2021
20 Definition
In this Part--
amending Act means the Crimes Legislation Amendment Act 2021.
21 Extension of scheme
The amendments made to this Act by the amending Act extend--
(a) to offences committed before the date of commencement of the
amendments, and
(b) to persons serving a sentence of imprisonment that commenced before
the date of commencement of the amendments, and
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Crimes Legislation Amendment Bill 2021 [NSW]
Schedule 1 Amendments
(c) to persons subject to an extended supervision order, interim supervision
order, continuing detention order or interim detention order
immediately before the date of commencement of the amendments.
1.3 Law Enforcement (Powers and Responsibilities) Act 2002 No 103
[1] Section 46A Searchable offences
Omit "and" from the end of section 46A(1)(a)(v).
[2] Section 46A(1)(a)(vi)
Insert after section 46A(1)(a)(v)--
(vi) a computer offence, and
[3] Section 46A(2)
Insert in alphabetical order--
computer offence means an offence under the Crimes Act 1900, Part 6.
[4] Section 60A
Insert after section 60--
60A Applications for warrants by email
(1) Despite the requirement under section 60(1) that an application for a warrant
be made in person, a person may apply for a warrant--
(a) by email, or
(b) in another way prescribed by the regulations for the purposes of this
section.
(2) The eligible issuing officer must not issue the warrant unless the information
given by the applicant in, or in relation to, the application is verified--
(a) before the eligible issuing officer on oath or affirmation, or
(b) by affidavit.
(3) The requirement under subsection (2) for information to be verified before an
eligible issuing officer is taken to be satisfied if--
(a) the applicant appears before the issuing officer by audio visual link or
telephone, and
(b) the issuing officer administers the oath or affirmation by the same
means.
(4) If the eligible issuing officer issues the warrant on an application made by
email, the issuing officer may--
(a) email the signed warrant to the applicant, and
(b) email the signed occupier's notice to the applicant.
(5) If the eligible issuing officer emails the signed warrant or signed occupier's
notice to the applicant, a person executing the warrant may--
(a) for the purposes of section 67--serve a copy of the signed occupier's
notice produced by the email transmission, and
(b) for the purposes of section 69--produce a copy of the signed warrant
produced by the email transmission.
(6) This section does not apply to telephone warrants.
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Crimes Legislation Amendment Bill 2021 [NSW]
Schedule 1 Amendments
(7) Despite section 59(2) and (3)--
(a) this section does not apply to notices to produce documents issued
under Division 3, and
(b) subsections (4) and (5), to the extent that the subsections require or
provide for occupier's notices, do not apply to warrants issued under
Part 6 or Part 11, Division 2.
(8) Subsections (2)-(5) apply to detention warrants issued under Part 9.
(9) This section is repealed at the beginning of the day that is 2 years after it
commences.
[5] Section 99 Power of police officers to arrest without warrant
Omit section 99(3). Insert instead--
(3) The arresting police officer or another police officer must, as soon as is
reasonably practicable, take the person who has been arrested under this
section before an authorised officer to be dealt with according to law.
Note-- A police officer may discontinue the arrest of a person at any time and without
taking the arrested person before an authorised officer--see section 105.
[6] Section 99(7)
Insert after section 99(6)--
(7) In this section--
arresting police officer means the police officer arresting a person under this
section.
1.4 Surveillance Devices Act 2007 No 64
[1] Section 4 Definitions
Insert in alphabetical order in section 4(1)--
surveillance device warrant particulars--see section 20(1).
[2] Section 17 Application for a surveillance device warrant
Omit section 17(3)-(5). Insert instead--
(3) The application must be in the form of an affidavit that--
(a) includes the information required to complete the surveillance device
warrant particulars, and
(b) sets out the grounds on which the warrant is sought, and
(c) sets out the details of any alternative means of obtaining the evidence or
information sought under the warrant and the extent to which those
means may assist or prejudice the investigation, and
(d) states whether any attempts have been made to use an alternative means
and, if so, the result of the attempts, and
(e) sets out the details of any previous warrant or emergency authorisation
sought or issued under this Act in relation to the relevant offence, and
(f) as far as reasonably practicable, identifies persons who may be
incidentally recorded by the surveillance device, and
(g) includes any information known to the applicant that may be adverse to
the warrant application or, if no adverse information is known, a
statement to that effect.
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Crimes Legislation Amendment Bill 2021 [NSW]
Schedule 1 Amendments
(4) The application may be made in a form other than an affidavit if the law
enforcement officer believes that--
(a) the immediate use of a surveillance device is necessary for a purpose
referred to in subsection (1)(c) or (1A)(c), and
(b) it is impracticable for the application to be prepared and sworn in the
form of an affidavit for the purpose of making the application as
required by subsection (3).
(5) If subsection (4) applies, the applicant must--
(a) provide the eligible Judge or eligible Magistrate with any information
the eligible Judge or eligible Magistrate considers is reasonably
practicable in the circumstances, and
(b) within 72 hours after making the application, send a duly sworn
affidavit that includes the information required under subsection (3) to
the eligible Judge or eligible Magistrate, whether or not a warrant has
been issued.
[3] Section 17(5A)
Omit "in subsections (3) and (3A)". Insert instead "required under subsection (3)".
[4] Schedule 1 Savings, transitional and other provisions
Insert at the end of the Schedule--
Part 5 Provisions consequent on enactment of Crimes
Legislation Amendment Act 2021
11 Definitions
In this Part--
amended, in relation to a provision, means the provision as in force on and
from the date this clause commences.
amending Act means the Crimes Legislation Amendment Act 2021.
previous, in relation to a provision, means the provision as in force before the
date this clause commenced.
12 Applications for surveillance device warrants made before commencement of
Crimes Legislation Amendment Act 2021
(1) This clause applies to an application for a surveillance device warrant made
under section 17, but not decided, before the date this clause commenced.
(2) Despite the amending Act--
(a) amended section 17 does not apply in relation to the application, and
(b) previous section 17 continues to apply in relation to the application.
1.5 Terrorism (High Risk Offenders) Act 2017 No 68
Section 71B
Insert after section 71A--
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Schedule 1 Amendments
71B Protected records of HRO Assessment Committee inadmissible
(1) A protected record, or evidence of the contents of a protected record, is not
admissible in proceedings before a court, tribunal, authority or other body or
person.
(2) A person cannot be compelled in the proceedings to--
(a) produce a protected record, or a copy of or extract from a protected
record, or
(b) disclose or give evidence of the contents of a protected record.
(3) In this section--
protected record means any of the following--
(a) the minutes of a meeting of the HRO Assessment Committee or an HRO
sub-committee, or a copy of or extract from the minutes,
(b) another record of the deliberations of the HRO Assessment Committee
or an HRO sub-committee, or a copy of or extract from the record.
HRO sub-committee means a sub-committee formed by the HRO Assessment
Committee under the Crimes (High Risk Offenders) Act 2006, section 24AD.
1.6 Terrorism (Police Powers) Act 2002 No 115
Section 26ZS Sunset provision
Omit "16 December 2021" wherever occurring. Insert instead "16 December 2023".
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