South Australian Current Acts South Australian Current Acts (1) In this Act,
unless the contrary intention appears—
"adult" means a person of or above the age of 18 years;
"AUSTRAC" means the Australian Transaction Reports and Analysis Centre
continued in existence by the Anti-Money Laundering and Counter-Terrorism
Financing Act 2006 of the Commonwealth;
"child" means a person under the age of 18 years;
"Commonwealth authority" means—
(a) a
Commonwealth Minister; or
(b) a
Commonwealth Department; or
(c) the
Defence Force; or
(d) a
body (whether incorporated or not) established or appointed for a public
purpose by or under a Commonwealth law, not being—
(i)
an incorporated company, society or association; or
(ii)
an organisation registered, or an association recognised,
under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth,
or a branch of such an organisation or association; or
(e) a
body established or appointed by the Governor-General, or by a Commonwealth
Minister, otherwise than by or under a Commonwealth law; or
(f) a
person holding or performing the duties of an office established by or under,
or an appointment made under, a Commonwealth law other than the office of
Secretary of a Commonwealth Department; or
(g) a
person holding or performing the duties of an appointment made by the
Governor-General, or by a Commonwealth Minister, otherwise than under a
Commonwealth law; or
(h) a
federal court; or
(i)
a tribunal established under a Commonwealth law; or
(j) the
Australian Federal Police;
"Commonwealth Department" means an Agency within the meaning of the
Public Service Act 1999 of the Commonwealth;
"conviction" means a conviction, whether summary or on indictment, for an
offence and includes a finding which, under subsection (5), is treated as
a conviction for the purposes of this Act or a case which falls within the
ambit of subsection (6);
"corresponding law" means a law of another State or of the Commonwealth that
is declared by the regulations to be a corresponding law for the purposes of
this Act;
"designated Commonwealth position" means a position in a
Commonwealth authority which the head of the authority has determined to be a
designated security assessment position whose duties are likely to involve
access to national security information classified as secret or top secret;
"designated judicial authority" means—
(a) a
court or tribunal (including a military tribunal established under a law of
the Commonwealth); or
(b) a
judicial or quasi-judicial body brought within the ambit of this definition by
the regulations;
"designated sex-related offence" means—
(i)
that is constituted by consenting adults engaging in
sexual intercourse, or another form of sexual activity; or
(ii)
that is constituted by an adult procuring another adult
to engage in consensual sexual intercourse, or another form of consensual
sexual activity; or
(b) an
offence where—
(i)
the offence is constituted by consenting persons of the
same sex engaging in sexual intercourse, or another form of sexual activity;
and
(ii)
at least 1 of them is 16 or 17 years
of age (and none of them is younger); and
(iii)
their actions would not have constituted an offence if
they were not of the same sex; and
(iv)
no person engaged in the activity was in
a position of authority in relation to another person engaged in the activity;
or
(i)
section 69, 70 or 71 (other than
section 70(1)(b) or (c)) of the Criminal Law Consolidation Act 1935
before its repeal by the Criminal Law Consolidation Act Amendment
Act 1972 (No 94 of 1972); or
(ii)
section 69 (other than section 69(1)(b)(ii) or
(iii)) of the Criminal Law Consolidation Act 1935 before its repeal by
the Criminal Law (Sexual Offences) Amendment Act 1975 (No 66
of 1975); or
(iii)
any other provision, prescribed by regulation, that
involves consensual sexual activity between persons of the same sex; or
(d) an
offence against the common law substantially corresponding to an offence
referred to in paragraph (a) or (c); or
(e) an
offence of attempting, or of conspiracy or incitement, to commit an offence
mentioned in paragraphs (a) to (d);
"eligible adult offence" means an offence committed by an adult for
which—
(a) a
sentence of imprisonment is not imposed; or
(b) a
sentence of imprisonment is imposed but the sentence is 12 months or
less;
"eligible juvenile offence" means an offence committed while the defendant was
a child where, on conviction of the defendant—
(a) a
sentence of imprisonment is not imposed; or
(b) a
sentence of imprisonment is imposed but the sentence is 24 months or
less;
"eligible sex offence" means a sex offence (being either an
eligible adult offence or an eligible juvenile offence) for which a sentence
of imprisonment is not imposed;
"intelligence or security agency" means—
(a) the
Australian Security Intelligence Organisation; or
(b) the
Australian Secret Intelligence Service; or
(c) the
Office of National Assessments; or
(d) that
part of the Department of Defence known as the Defence Signals Directorate; or
(e) that
part of the Department of Defence known as the Defence Intelligence
Organisation; or
(f) that
part of the Department of Defence known as the Defence Imagery and Geospatial
Organisation; or
(g) any
other similar agency, office or part of a Commonwealth Department that has a
direct involvement in national intelligence or security activities;
"justice agency" means any of the following:
(a) the
Australian Federal Police;
(b) the
police force or service of a State;
(c) the
Australian Customs and Border Protection Service;
(d) the
National Anti-Corruption Commission, the Australian Crime Commission, or any
other similar crime or integrity commission, body, office or agency
established under a law of the Commonwealth or a State;
(f)
AusCheck (established by the Commonwealth on 5 December 2005);
(g) the
Australian Securities and Investments Commission;
(h) the
Attorney-General for the Commonwealth or a State;
(i)
the Director of Public Prosecutions for the Commonwealth
or a State, or a person or body performing a similar function under a law of a
State;
(j)
staff appointed to assist a person or body referred to in paragraph (i);
(k) a
government department or agency of the Commonwealth or the State which is
concerned, as 1 of its principal or primary duties, with the prosecution of
offences or assisting with the prosecution of offences;
(l) the
Australian Taxation Office or the Australian Electoral Commission, in
connection with any function associated with the prosecution of offences or
assisting with the prosecution of offences;
(m) the
Department for Correctional Services or an equivalent entity in another State;
(n) the
Department responsible for a training centre under the Young Offenders
Act 1993 or an equivalent entity in another State;
(o) the
Registrar or administrator of a Commonwealth or State court;
(p) a
person or body brought within the ambit of this definition or a corresponding
definition by regulations made under this Act or under a corresponding law for
the purposes of a corresponding definition;
"minor offence" means an offence where, on conviction—
(a) the
defendant is discharged without penalty; or
(b) the
only penalty imposed on the defendant (disregarding any demerit points that
may apply) is a fine not exceeding—
(i)
unless an amount applies under
subparagraph (ii)—$500; or
(ii)
an amount, greater than $500, prescribed by the
regulations for the purposes of this definition;
"mutual recognition principle"—see subsection (7);
"national security information" means information affecting the defence,
security or international relations of Australia;
"official record" means a record kept by a court, tribunal, police force or
public authority;
"overseas jurisdiction" means a jurisdiction outside Australia and the
external territories;
"prescribed public decency offence" means an offence against public decency or
morality by which homosexual behaviour could be punished (but does not include
a sex offence);
"public authority" means—
(a) a
public or local authority constituted by or under an Act of this State,
another State or the Commonwealth; or
(b) a
government department of this State, another State or the Commonwealth; or
(c) a
statutory body representing the Crown in right of this State, another State or
the Commonwealth,
and includes a person performing a function on behalf of the authority,
department or body;
"qualification period" means the qualification period that applies under
section 7;
"qualified magistrate"—see section 6A;
"quashed"—a conviction is quashed if—
(a) the
conviction is quashed or set aside; or
(b) a
finding of guilt, or a finding that a charge has been proved, is quashed or
set aside;
"recognised jurisdiction"—if a law of another State or of the
Commonwealth has been declared by the regulations to be a corresponding law,
then that State or the Commonwealth (as the case requires) is a recognised
jurisdiction;
"security" has the same meaning as in the Australian Security Intelligence
Organisation Act 1979 of the Commonwealth;
"sex offence" means an offence prescribed as a sex offence for the purposes of
this definition;
"spent", for a conviction—see section 4;
"State" includes Territory;
"this jurisdiction" means South Australia;
"tribunal" means a tribunal constituted by law;
"work" includes the following:
(a)
work—
(i)
under a contract of employment or contract for services;
or
(ii)
in a leadership role in a religious institution or as
part of the duties of a religious vocation; or
(iii)
as an officer of a body corporate, member of the
committee of management of an unincorporated body or association or member of
a partnership; or
(iv)
as a volunteer, other than unpaid work engaged in for a
private or domestic purpose; or
(v)
as a self-employed person;
(b)
practical training as part of a course of education or vocational training;
(c)
acting in a prescribed capacity or engaging in a prescribed activity.
(2) If—
(a) a
person is convicted by a court of a number of offences; and
(b) the
sentencing court imposes 1 penalty for some or all of the offences,
the penalty so imposed will be taken to apply in relation to each offence for
the purpose of determining whether a particular offence is an eligible adult
offence or an eligible juvenile offence under subsection (1).
(3) In this Act, a
reference to a sentence of imprisonment extends to—
(a) a
period of detention under the Young Offenders Act 1993 ;
(b) a
sentence of imprisonment or a period of detention that has been suspended (in
whole or in part);
(c) a
period of detention under section 57 of the Sentencing Act 2017 ;
(d)
where a court has made a finding of a kind referred to in
subsection (5)(c) and a limiting term is fixed under section 269O(2)
of the Criminal Law Consolidation Act 1935 , or a term of an equivalent
nature is fixed under a law of another jurisdiction—that limiting term
or that term of an equivalent nature (as the case may be).
(4) In this Act, a
reference to a conviction that is spent includes a reference to the charge to
which the spent conviction related and any investigation or legal process
associated with the offence or the conviction.
(5) The following
findings are treated as convictions for the purposes of this Act:
(a) a
formal finding of guilt by a court;
(b) a
finding by a court that an offence has been proved;
(c) a
finding by a court that the objective elements of an offence are established
in proceedings under Part 8A of the
Criminal Law Consolidation Act 1935 or a law of any other jurisdiction in
which the defendant was found to be mentally incompetent to commit the offence
or unfit to stand trial for the offence.
(6) For the purposes
of this Act, if an offence is taken into account for the purposes of
sentencing for another offence or offences, it will be taken that there is a
conviction for that offence (and that the conviction is capable of being
spent).
(7) The "mutual
recognition principle is as follows:
(a) a
conviction for an offence against a law of a recognised jurisdiction that is
spent under the corresponding law of that jurisdiction will be taken to be
spent for the purposes of Part 3 and Part 4; and
(b) a
conviction for an offence against a law of a recognised jurisdiction that is
not spent (or has ceased to be spent) under the corresponding law of that
jurisdiction will be taken not to be spent for the purposes of Part 3 and Part
4.
(8) For the purposes
of the definition of "designated sex-related offence —
(a) a
person will not be taken to have engaged in an activity with his or her
consent if the person would not be taken to have freely and voluntarily agreed
to the activity under section 46 of the Criminal Law Consolidation
Act 1935 ; and
(b) a
person is in "a position of authority" in relation to another person if they
would be in a position of authority in relation to the person under
section 49(5a) of the Criminal Law Consolidation Act 1935 .