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This is a Bill, not an Act. For current law, see the Acts databases.
Justice Legislation Amendment (Police and Other
Matters) Act 2019
No. of 2019
TABLE OF PROVISIONS
Clause Page
Part 1--Preliminary 1
1 Purposes 1
2 Commencement 5
Part 2--Discharging firearm and intimidation offences and
common assault 6
Division 1--Amendment of the Crimes Act 1958 6
3 New sections 31C and 31D inserted 6
4 New section 320A inserted 12
5 Statute law revision--Crimes Act 1958 16
Division 2--Amendment of the Bail Act 1977 16
6 Schedule 2 offences 16
Division 3--Amendment of the Sentencing Act 1991 17
7 Definitions 17
8 Sentences--whether concurrent or cumulative 17
Part 3--Drugs of dependence and commercial trafficking offence 19
Division 1--Amendment of the Drugs, Poisons and Controlled
Substances Act 1981 19
9 Definitions 19
10 Trafficking in a drug or drugs of dependence--commercial
quantity 20
11 Conspiring 22
12 Inciting etc. 22
13 New section 147 inserted 22
14 Part 3 of Schedule Eleven amended--1,4-BD 23
15 Part 3 of Schedule Eleven amended--Heroin 23
16 Part 3 of Schedule Eleven amended--GBL 23
17 Part 3 of Schedule Eleven amended--GHB 23
18 Consequential amendment--Voluntary Assisted Dying
Act 2017 24
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Clause Page
Division 2--Consequential amendment of other Acts 24
19 Bail Act 1977 24
20 Confiscation Act 1997 24
21 Sentencing Act 1991 25
22 Surveillance Devices Act 1999 26
Part 4--Interim closure notices and long-term closure orders 27
Division 1--Amendment of the Second-Hand Dealers and
Pawnbrokers Act 1989 27
23 Definitions 27
24 New Division 5 of Part 5 inserted 27
25 Service 33
26 Regulations 33
27 Statute law revision--Second-Hand Dealers and Pawnbrokers
Act 1989 33
Division 2--Amendment of the Confiscation Act 1997 34
28 New section 192 inserted 34
29 Schedule 1--Offences--Forfeiture on court order 34
Division 3--Amendment of the Magistrates' Court Act 1989 35
30 Rules of Court 35
Part 5--Restorative engagement process 36
Division 1--Amendment of Victoria Police Act 2013 36
31 Definitions 36
32 Making of complaints 36
33 Certain complaints to be referred to the Chief Commissioner 37
34 Complaints made to a police officer or protective services
officer 37
35 New section 174A inserted 37
36 Disclosure of restricted matter prohibited 39
Division 2--Amendment of Protected Disclosure Act 2012 39
37 Circumstances in which information may be disclosed 39
Part 6--Amendment of Firearms Act 1996 40
38 Definitions 40
39 Possession of a traffickable quantity of firearms 40
40 Particulars of licences 41
41 Particulars of dealers licences 41
42 Prohibition on the acquisition or disposal of traffickable
quantities of firearms 41
43 Notification of change of certain details 41
44 New sections 221 and 222 inserted 41
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Clause Page
45 Schedule 2 amended--lever action shotguns 43
46 Statute law revision--Firearms Act 1996 44
Part 7--Amendment of Sex Offenders Registration Act 2004 45
47 Purpose and outline 45
48 Access to the Register to be restricted 45
49 Person with access to Register not to disclose personal
information from it 45
50 Schedule 1--Class 1 offences 46
51 Schedule 2--Class 2 offences 46
Part 8--DNA profile samples and senior police officer
authorisations 48
Division 1--Amendment of the Crimes Act 1958 48
52 Definitions 48
53 Heading amended 50
54 Informed consent 51
55 New sections 464SC, 464SD, 464SE and 464SF inserted 51
56 Caution before forensic procedure 60
57 Procedure for taking samples etc. 61
58 Execution of authorisation, direction or order 62
59 Forensic reports to be made available 65
60 Evidence relating to forensic procedures 65
61 Forensic procedure for registrable offenders under the Sex
Offenders Registration Act 2004 66
62 New sections 464ZFAC, 464ZFAD and 464ZFAE inserted 67
63 Retention of information following finding of guilt etc. 75
64 Victorian DNA database 76
65 Report to Attorney-General 77
66 Destruction of identifying information 77
67 Forensic information from juveniles 78
68 Safeguards after giving sample 78
69 Destruction of samples given by police and VIFM personnel
and storage of DNA information 78
70 Supply of forensic material for purposes of DNA database 79
71 Use of information on Victorian DNA database 79
72 Disclosure of Victorian information 79
73 Immunity of medical practitioners, nurses, midwives, dentists
and other persons 80
74 Regulations 80
75 New section 464ZLA inserted 81
76 New heading and sections 464ZM, 464ZN, 464ZO, 464ZP,
464ZQ, 464ZR and 464ZS inserted 81
77 New section 635 inserted 88
78 Schedule 9 inserted 89
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Clause Page
Division 2--Amendment of the Corrections Act 1986 94
79 New section 43A inserted 94
Division 3--Amendment of the Sex Offenders Registration
Amendment (Miscellaneous) Act 2017 95
80 Forensic procedure for registrable offenders under the Sex
Offenders Registration Act 2004 95
Part 9--Amendment of other Acts 97
Division 1--Confiscation Act 1997 97
81 New section 193 inserted 97
82 Schedule 1--Offences--Forfeiture on court order 97
83 Schedule 2--Offences--Automatic forfeiture and civil
forfeiture 98
Division 2--Sentencing Act 1991 100
84 Custodial sentence must be imposed for offences against
sections 317AC and 317AD in certain circumstances 100
85 Special reasons relevant to imposing minimum non-parole
periods 100
86 New section 169 inserted 101
87 Statute law revision--section 16 of the Sentencing Act 1991 101
88 Statute law revision--Part 12 of the Sentencing Act 1991 101
Division 3--Victoria Police Act 2013 102
89 Maternity and parental leave amendments 102
Division 4--Road Safety Act 1986 102
90 Definitions for the purposes of Part 6A 102
91 Transitional provision--Crimes Legislation Amendment
(Protection of Emergency Workers and Others) Act 2017 103
92 New section 103ZLA inserted 103
Part 10--Repeal of amending Act 104
93 Repeal of amending Act 104
═════════════
Endnotes 105
1 General information 105
iv
Justice Legislation Amendment (Police
and Other Matters) Act 2019
No. of 2019
[Assented to ]
The Parliament of Victoria enacts:
Part 1--Preliminary
1 Purposes
The main purposes of this Act are--
(a) to amend the Crimes Act 1958--
(i) to create new offences of recklessly
discharging a firearm and intimidation
of law enforcement officers and family
members; and
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Part 1--Preliminary
(ii) to further provide for the maximum
term of imprisonment that applies to
the offence at common law of common
assault; and
(b) to amend the Bail Act 1977 to make
provision in relation to the granting of bail
for a new offence and a certain offence at
common law of common assault in the
Crimes Act 1958; and
(c) to amend the Sentencing Act 1991 to make
provision in relation to the sentencing for
a new offence and a certain offence at
common law of common assault in the
Crimes Act 1958; and
(d) to amend the Drugs, Poisons and
Controlled Substances Act 1981--
(i) to further provide for the commercial
and large commercial quantities for
particular drugs of dependence
specified in Schedule Eleven; and
(ii) to provide for the offence of trafficking
in a commercial quantity of a drug of
dependence for the benefit of or at the
direction of a criminal organisation;
and
(e) to amend the Bail Act 1977, the
Confiscation Act 1997, the Sentencing
Act 1991 and the Surveillance Devices
Act 1999 in relation to the new offence of
trafficking in a commercial quantity of a
drug of dependence for the benefit of or at
the direction of a criminal organisation in the
Drugs, Poisons and Controlled Substances
Act 1981; and
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Part 1--Preliminary
(f) to amend the Second-Hand Dealers and
Pawnbrokers Act 1989 to provide for
interim closure notices and long-term closure
orders; and
(g) to amend the Confiscation Act 1997--
(i) to provide for offences against
the Second-Hand Dealers and
Pawnbrokers Act 1989 to be
Schedule 1 offences; and
(ii) to provide for offences against other
Acts to be Schedule 1 or 2 offences;
and
(h) to amend the Victoria Police Act 2013--
(i) to provide for a restorative engagement
process; and
(ii) to further provide for parental leave
arrangements; and
(i) to amend the Firearms Act 1996--
(i) to provide for lever action shotguns;
and
(ii) to provide for the offence to possess a
traffickable quantity of firearms; and
(iii) to further provide for the offence to
acquire or dispose of a traffickable
quantity of firearms; and
(j) to amend the Sex Offenders Registration
Act 2004--
(i) to further provide for access to and
disclosure of personal information
from the Register; and
(ii) to further provide for Class 1 offences
and Class 2 offences; and
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No. of 2019
Part 1--Preliminary
(k) to amend the Crimes Act 1958--
(i) to provide for the giving of an
authorisation by a senior police officer
for the taking of a DNA profile sample
from a DNA person; and
(ii) to provide for a senior police officer to
authorise the taking of a DNA profile
sample from certain persons; and
(iii) to provide for a senior police officer to
authorise the taking of a sample from
certain persons who have previously
provided a sample; and
(iv) to provide for the immunity of certain
health practitioners who may take a
DNA profile sample under a direction
or an authorisation given by a senior
police officer; and
(l) to amend the Corrections Act 1986--
(i) to provide for a police officer and a
registered medical practitioner or nurse
who accompanies the police officer to
enter and remain in a prison for the
purpose of taking a DNA profile
sample from a prisoner; and
(ii) to validate any sample taken by a
forensic procedure conducted under
section 464ZFAB of the Crimes
Act 1958 before the commencement
of section 80; and
(m) to amend the Road Safety Act 1986--
(i) to make further provision in relation
to offences that constitute relevant
offences for the purposes of
impoundment of vehicles under
Part 6A of that Act; and
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No. of 2019
Part 1--Preliminary
(ii) to make technical amendments of a
statute law revision nature; and
(n) to make minor and consequential
amendments to various Acts.
2 Commencement
(1) This Act (except Parts 2, 3, 4, 5 and 6 and
Divisions 1 and 2 of Part 8 and Divisions 1
and 3 of Part 9 and sections 50 and 51) comes
into operation on the day after the day on
which it receives the Royal Assent.
(2) Subject to subsection (3), Parts 2, 3, 4, 5 and 6
and Divisions 1 and 2 of Part 8 and Divisions 1
and 3 of Part 9 and sections 50 and 51 come into
operation on a day or days to be proclaimed.
(3) If a provision referred to in subsection (2), except
sections 50 and 51, does not come into operation
before 1 December 2019, it comes into operation
on that day.
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Part 2--Discharging firearm and intimidation offences and common assault
Part 2--Discharging firearm
and intimidation offences and
common assault
Division 1--Amendment of the
Crimes Act 1958
3 New sections 31C and 31D inserted
After section 31B of the Crimes Act 1958
insert--
"31C Discharging a firearm reckless to safety
of a police officer or a protective services
officer
(1) A person commits an offence if--
(a) the person discharges a firearm and is
reckless as to the safety of another
person (the victim) due to the discharge
of the firearm; and
(b) the victim is a police officer on duty or
a protective services officer on duty;
and
(c) the person knows or is reckless as to
whether the victim is a police officer
or a protective services officer.
(2) A person who commits an offence
against subsection (1) is liable to level 4
imprisonment (15 years maximum).
(3) Subsection (1) does not apply to conduct
engaged in by a person who is--
(a) a police officer or a protective services
officer acting in the course of the police
officer's or the protective services
officer's official duties when authorised
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Part 2--Discharging firearm and intimidation offences and common assault
to discharge a firearm by the Chief
Commissioner of Police; or
(b) a senior IBAC Officer carrying out the
purposes for which firearms may be
used under Part 5 of the Independent
Broad-based Anti-corruption
Commission Act 2011 and as
authorised under that Part; or
(c) a member of a police force or police
service of the Commonwealth or of
another State or a Territory discharging
a firearm issued to the member for the
performance of a detailed duty; or
(d) a prison guard who holds a licence
under the Firearms Act 1996 issued
for the requirement of the occupation
of prison guard discharging a firearm
as authorised under that licence while
acting in the course of the prison
guard's duties in the immediate pursuit
of another person who is under the
prison guard's custody; or
(e) a person who holds a licence under
the Firearms Act 1996, discharging a
firearm the person is authorised to use
under the licence in the course of the
person's duties under--
(i) the Conservation, Forests and
Lands Act 1987; or
(ii) the Livestock Disease Control
Act 1994; or
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Part 2--Discharging firearm and intimidation offences and common assault
(iii) the Prevention of Cruelty to
Animals Act 1986.
Notes
1 An offence against this section if committed
in certain circumstances is a category 2
offence under the Sentencing Act 1991.
See section 5(2H) of that Act for the
requirement to impose a custodial order for
this offence unless the circumstances set out
in paragraphs (a) to (e) of that section exist.
2 Section 16(3E) of the Sentencing Act 1991
requires that every term of imprisonment
imposed on a person for an offence against this
section if committed in certain circumstances
must, unless otherwise directed by the court,
be served cumulatively on any uncompleted
sentence or sentences of imprisonment imposed
on that offender, whether before or at the same
time as that term.
(4) In this section--
discharge means the discharge of shot or a
bullet or other missile from a firearm;
firearm has the same meaning as in the
Firearms Act 1996;
police officer on duty means a police
officer who is performing any duty
or exercising any power as such an
officer;
protective services officer on duty means
a protective services officer who is
performing any duty or exercising
any power as such an officer;
senior IBAC Officer has the same
meaning as it has in the Independent
Broad-based Anti-corruption
Commission Act 2011.
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Part 2--Discharging firearm and intimidation offences and common assault
31D Intimidation of a law enforcement officer
or a family member of a law enforcement
officer
(1) A person commits an offence if--
(a) the person uses or procures the use of
intimidation towards another person
(the victim); and
(b) the victim is a law enforcement
officer or a family member of a
law enforcement officer; and
(c) the use or procuring of intimidation is
for reasons related to the victim being
a law enforcement officer or a family
member of a law enforcement officer.
(2) A person who commits an offence
against subsection (1) is liable to level 5
imprisonment (10 years maximum).
(3) For the purposes of subsection (1)(a), a
person uses intimidation towards a victim
if--
(a) the person engages in conduct that
could reasonably be expected to arouse
apprehension or fear in the victim for
the safety of the victim; and
(b) either--
(i) the person knows that engaging
in that conduct would be likely to
arouse that apprehension or fear;
or
(ii) in all the particular circumstances,
the person ought to have known
that engaging in that conduct
would be likely to arouse that
apprehension or fear.
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Part 2--Discharging firearm and intimidation offences and common assault
(4) Subsection (3) applies whether or not the
conduct arouses apprehension or fear in the
victim.
(5) In a proceeding for an offence against
subsection (1) it is a defence to the
charge for the accused to prove that
conduct in respect of a victim referred
to in paragraph (d), (e), (f) or (g) of the
definition of law enforcement officer in
subsection (8) was engaged in without
malice--
(a) in the normal course of a lawful
business, trade, profession or
enterprise (including that of any
body or person whose business,
or whose principal business, is
the publication, or arranging the
publication, of news or current
affairs material); or
(b) for the purposes of an industrial
dispute; or
(c) for the purpose of engaging in
political activities or discussion
or communicating with respect to
public affairs.
(6) For the purposes of this section a single
act may amount to intimidation.
(7) For the purposes of this section, it is
immaterial--
(a) that some or all of the conduct
constituting an offence against
subsection (1) occurred outside
Victoria, so long as the victim
was in Victoria at the time at
which that conduct occurred; or
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Part 2--Discharging firearm and intimidation offences and common assault
(b) that the victim was outside Victoria at
the time at which some or all of the
conduct constituting an offence against
subsection (1) occurred, so long as that
conduct occurred in Victoria; or
(c) some or all of the conduct constituting
an offence against subsection (1)
occurred outside Victoria and the
victim was outside Victoria at the
relevant time or times, so long as the
conduct is for reasons related to the
victim being a law enforcement officer
in Victoria, or a family member of a
law enforcement officer in Victoria.
(8) In this section--
family member has the meaning given in
section 8 of the Family Violence
Protection Act 2008;
law enforcement officer means a person
who is--
(a) a police officer; or
(b) a protective services officer; or
(c) a police custody officer within the
meaning of the Victoria Police
Act 2013; or
(d) a Governor, prison officer or
escort officer within the meaning
of the Corrections Act 1986; or
(e) authorised under section 9A(1)
of the Corrections Act 1986 to
exercise a function or power of a
Governor, a prison officer or an
escort officer under that Act; or
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Part 2--Discharging firearm and intimidation offences and common assault
(f) authorised under section 9A(1A)
or (1B) of the Corrections
Act 1986 to exercise a function
or power referred to in that
subsection; or
(g) a youth justice custodial worker
within the meaning of the
Children, Youth and Families
Act 2005.".
4 New section 320A inserted
After section 320 of the Crimes Act 1958
insert--
"320A Maximum term of imprisonment for
common assault in certain circumstances
(1) Despite section 320, the maximum term of
imprisonment for common assault is level 5
imprisonment (10 years maximum) if--
(a) at the time of the assault, the person
who commits the assault (the offender)
has an offensive weapon readily
available; and
(b) the person assaulted (the victim) is a
police officer on duty or a protective
services officer on duty; and
(c) the offender knows or is reckless as to
whether the victim is a police officer
or a protective services officer; and
(d) the offender--
(i) enables the victim to see the
offensive weapon or the general
shape of the offensive weapon; or
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Part 2--Discharging firearm and intimidation offences and common assault
(ii) tells or suggests to the victim
that the offender has an offensive
weapon or a firearm readily
available; and
(e) the offender--
(i) knows that engaging in conduct
referred to in subsection (1)(d)
would be likely to arouse
apprehension or fear; or
(ii) in all the particular circumstances,
the person ought to have known
that engaging in conduct referred
to in subsection (1)(d) would be
likely to arouse that apprehension
or fear.
Notes
1 A common assault referred to in this subsection
if committed in certain circumstances is a
category 2 offence under the Sentencing
Act 1991. See section 5(2H) of that Act for
the requirement to impose a custodial order for
this offence unless the circumstances set out in
paragraphs (a) to (e) of that section exist.
2 Section 16(3E) of the Sentencing Act 1991
requires that every term of imprisonment
imposed on a person for a common assault
at common law if committed in certain
circumstances must, unless otherwise
directed by the court, be served cumulatively
on any uncompleted sentence or sentences
of imprisonment imposed on that offender,
whether before or at the same time as that term.
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Part 2--Discharging firearm and intimidation offences and common assault
(2) Despite section 320, the maximum term of
imprisonment for common assault is level 4
imprisonment (15 years maximum) if--
(a) at the time of the assault, the person
who commits the assault (the offender)
has a firearm or an imitation firearm
readily available; and
(b) the person assaulted (the victim) is a
police officer on duty or a protective
services officer on duty; and
(c) the offender knows or is reckless as to
whether the victim is a police officer or
a protective services officer; and
(d) the offender--
(i) enables the victim to see the
firearm or the imitation firearm
or the general shape of the firearm
or the imitation firearm; or
(ii) tells or suggests to the victim
that the offender has a firearm
or an imitation firearm readily
available; and
(e) the offender--
(i) knows that engaging in conduct
referred to in subsection (2)(d)
would be likely to arouse
apprehension or fear; or
(ii) in all the particular circumstances,
the person ought to have known
that engaging in conduct referred
to in subsection (2)(d) would be
likely to arouse that apprehension
or fear.
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Part 2--Discharging firearm and intimidation offences and common assault
Notes
1 A common assault referred to in this subsection
if committed in certain circumstances is a
category 2 offence under the Sentencing
Act 1991. See section 5(2H) of that Act for
the requirement to impose a custodial order
for this offence unless the circumstances set out
in paragraphs (a) to (e) of that section exist.
2 Section 16(3E) of the Sentencing Act 1991
requires that every term of imprisonment
imposed on a person for a common assault
at common law if committed in certain
circumstances must, unless otherwise
directed by the court, be served cumulatively
on any uncompleted sentence or sentences
of imprisonment imposed on that offender,
whether before or at the same time as that term.
(3) For the purposes of subsections (1) and (2),
a person has an offensive weapon, a firearm
or an imitation firearm readily available if
the offensive weapon, the firearm or the
imitation firearm is--
(a) in the person's hand; or
(b) on the person's body; or
(c) within the person's reach.
(4) In this section--
firearm has the same meaning as it has in
the Firearms Act 1996;
imitation firearm has the same meaning as
in section 77(1A);
offensive weapon means any article
(other than a firearm or an imitation
firearm) made or adapted for use for
causing injury to or incapacitating a
person, or which at the time of an
assault the person having it with them
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Part 2--Discharging firearm and intimidation offences and common assault
intends or threatens to use for such a
purpose;
police officer on duty means a police
officer who is performing any duty
or exercising any power as such an
officer;
protective services officer on duty means
a protective services officer who is
performing any duty or exercising
any power as such an officer.".
5 Statute law revision--Crimes Act 1958
(1) In section 317AC(1)(b), (2) and (2)(a) of the
Crimes Act 1958, for "custodial worker."
substitute "custodial worker".
(2) In section 317AC(2)(c) of the Crimes Act 1958,
for "worker. is" substitute "worker is".
Division 2--Amendment of the Bail Act 1977
6 Schedule 2 offences
(1) In item 22 of Schedule 2 to the Bail Act 1977,
before paragraph (a) insert--
"(aa) section 31C (discharging a firearm reckless
to safety of a police officer or a protective
services officer) in circumstances where the
offender's conduct is alleged to have created
a risk to the physical safety of the victim or
to any member of the public;".
(2) After item 23 of Schedule 2 to the Bail Act 1977
insert--
"23A. An offence of common assault that is alleged
to have been committed in the circumstances
referred to in section 320A(1) or (2) of the
Crimes Act 1958 and it is alleged that the
assault consisted of or included the direct
application of force within the meaning of
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Part 2--Discharging firearm and intimidation offences and common assault
the definition of assault in section 31(2) of
that Act.".
Division 3--Amendment of the Sentencing Act 1991
7 Definitions
In section 3(1) of the Sentencing Act 1991,
in the definition of category 2 offence, after
paragraph (k) insert--
"(l) an offence against section 31C of the Crimes
Act 1958 (discharging a firearm reckless to
safety of a police officer or a protective
services officer) in circumstances where the
offender's conduct created a risk to the
physical safety of the victim or to any
member of the public;
(m) the offence of common assault committed
in the circumstances referred to in
section 320A(1) or (2) of the Crimes
Act 1958 if the assault consisted of or
included the direct application of force
within the meaning of the definition of
assault in section 31(2) of that Act;".
8 Sentences--whether concurrent or cumulative
(1) In section 16(1A) of the Sentencing Act 1991,
after paragraph (e) insert--
"(ea) on any person for an offence against
section 31C of the Crimes Act 1958 in
circumstances where the offender's conduct
created a risk to the physical safety of the
victim or to any member of the public; or".
(2) In section 16(1A) of the Sentencing Act 1991--
(a) in paragraph (k), for "Crimes Act 1958."
substitute "Crimes Act 1958; or";
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Part 2--Discharging firearm and intimidation offences and common assault
(b) after paragraph (k) insert--
"(l) on any person for common assault
committed in the circumstances
referred to in section 320A(1) or (2)
of the Crimes Act 1958 if the assault
consisted of or included the direct
application of force within the
meaning of the definition of assault
in section 31(2) of that Act.".
(3) After section 16(3D) of the Sentencing Act 1991
insert--
"(3E) Every term of imprisonment imposed on a
person for--
(a) an offence against section 31C of the
Crimes Act 1958 in circumstances
where the offender's conduct created a
risk to the physical safety of the victim
or to any member of the public; or
(b) a common assault committed in
the circumstances referred to in
section 320A(1) or (2) of the Crimes
Act 1958 if the assault consisted of or
included the direct application of force
within the meaning of the definition of
assault in section 31(2) of that Act--
must, unless otherwise directed by the
court, be served cumulatively on any
uncompleted sentence or sentences of
imprisonment imposed on that offender,
whether before or at the same time as that
term.".
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Part 3--Drugs of dependence and commercial trafficking offence
Part 3--Drugs of dependence and
commercial trafficking offence
Division 1--Amendment of the Drugs, Poisons
and Controlled Substances Act 1981
9 Definitions
In section 70(1) of the Drugs, Poisons and
Controlled Substances Act 1981--
(a) in Example 1 at the foot of the definition of
aggregated commercial quantity--
(i) for "200 grams" substitute "40 grams";
(ii) for "250 grams" substitute "50 grams";
(iii) for "200/250" substitute "40/50";
(b) in Example 3 at the foot of the definition of
aggregated commercial quantity--
(i) for "400 grams" (where first occurring)
substitute "200 grams";
(ii) for "240 grams" substitute
"120 grams";
(iii) for "500 grams" (where first occurring)
substitute "250 grams";
(iv) for "400/500" (where first occurring)
substitute "200/250";
(c) in Example 1 at the foot of the definition of
aggregated large commercial quantity--
(i) for "600 grams" substitute
"450 grams";
(ii) for "200 grams" substitute
"150 grams";
(iii) for "1 kilogram" (where secondly
occurring) substitute "750 grams";
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Part 3--Drugs of dependence and commercial trafficking offence
(iv) for "600/1000" substitute "450/750";
(d) in Example 2 at the foot of the definition of
aggregated large commercial quantity--
(i) for "150 grams" substitute
"100 grams";
(ii) for "750 grams" (where first occurring)
substitute "500 grams";
(iii) for "150/750" substitute "100/500";
(e) insert the following definition--
"criminal organisation means--
(a) an organisation that is a declared
organisation under the Criminal
Organisations Control Act 2012;
or
(b) an organisation that--
(i) has 2 or more members; and
(ii) engages in systemic and
continuing criminal activity
which involves substantial
planning; and
(iii) has a purpose of obtaining
profit, gain, power or
influence through that
criminal activity;".
10 Trafficking in a drug or drugs of dependence--
commercial quantity
(1) In section 71AA of the Drugs, Poisons and
Controlled Substances Act 1981, for "A person"
substitute "Subject to subsection (2), a person".
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(2) At the end of section 71AA of the Drugs, Poisons
and Controlled Substances Act 1981 and before
the note to that provision insert--
"(2) A person who, without being authorized by
or licensed under this Act or the regulations
or the Access to Medicinal Cannabis
Act 2016 or the regulations under that Act
to do so, trafficks or attempts to traffick in
a quantity of a drug of dependence or of
2 or more drugs of dependence that is not
less than the commercial quantity applicable
to that drug of dependence or those drugs of
dependence for the benefit of or at the
direction of a criminal organisation is guilty
of an indictable offence and liable--
(a) to level 1 imprisonment (life); and
(b) in addition to imprisonment, to a
penalty of not more than 5000 penalty
units.".
(3) For the note at the foot of section 71AA of the
Drugs, Poisons and Controlled Substances
Act 1981 substitute--
"Notes
1 An offence against subsection (1) is a category 2
offence under the Sentencing Act 1991.
See subsection (2H) of section 5 of that Act for the
requirement to impose a custodial order for this offence
unless the circumstances set out in paragraphs (a) to (e)
of that subsection exist.
2 An offence against subsection (2) is a category 1
offence under the Sentencing Act 1991.
See section 5(2G) of that Act for the requirement
to impose a custodial order for this offence.
3 An offence against subsection (2) is a serious
drug offence for the purposes of the Confiscation
Act 1997. On the conviction of a person for a serious
drug offence, the court must make an order under
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Part 3--Drugs of dependence and commercial trafficking offence
section 89DI of the Sentencing Act 1991 declaring
the person to be a serious drug offender.".
11 Conspiring
In the note at the foot of section 79(1)
of the Drugs, Poisons and Controlled
Substances Act 1981, for "section 71"
substitute "section 71, 71AA(2)".
12 Inciting etc.
(1) In the note at the foot of section 80(1)
of the Drugs, Poisons and Controlled
Substances Act 1981, for "section 71"
substitute "section 71, 71AA(2)".
(2) In the note at the foot of section 80(3) of the
Drugs, Poisons and Controlled Substances
Act 1981, for "section 71" (where twice
occurring) substitute "section 71, 71AA(2)".
13 New section 147 inserted
After section 146 of the Drugs, Poisons and
Controlled Substances Act 1981 insert--
"147 Transitional--Justice Legislation
Amendment (Police and Other Matters)
Act 2019
(1) The amendments made to Schedule
Eleven by sections 14(a), 15 and 16(a)
of the Justice Legislation Amendment
(Police and Other Matters) Act 2019
apply only to offences alleged to
have been committed after the
commencement of the applicable
section.
(2) For the purposes of subsection (1),
if an offence is alleged to have been
committed between 2 dates, one before
and one on or after the commencement
of the applicable section of the Justice
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Legislation Amendment (Police and
Other Matters) Act 2019, the offence
is alleged to have been committed
before that commencement.".
14 Part 3 of Schedule Eleven amended--1,4-BD
In Part 3 of Schedule Eleven to the Drugs,
Poisons and Controlled Substances Act 1981,
in the item relating to "1,4-BUTANEDIOL"--
(a) in Column 1 omit "and not for human
consumption";
(b) in Column 1B, for "-" substitute "20*0 kg".
15 Part 3 of Schedule Eleven amended--Heroin
In Part 3 of Schedule Eleven to the Drugs,
Poisons and Controlled Substances Act 1981,
for the item relating to "DIACETYLMORPHINE"
substitute--
"DIACETYLMORPHINE 500*0 g 750*0 g 50*0 g 250*0 g 30*0 g 3*0 g - 1*0 g".
(Heroin)
16 Part 3 of Schedule Eleven amended--GBL
In Part 3 of Schedule Eleven to the Drugs,
Poisons and Controlled Substances
Act 1981, in the item relating to "GAMMA
BUTYROLACTONE"--
(a) in Column 1 omit "and not for human
consumption";
(b) in Column 1B, for "-" substitute "20*0 kg".
17 Part 3 of Schedule Eleven amended--GHB
In Part 3 of Schedule Eleven to the Drugs,
Poisons and Controlled Substances Act 1981,
in the item relating to "4-HYDROXYBUTANOIC
ACID", in Column 1B, for "-" substitute
"20⋅0 kg".
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18 Consequential amendment--Voluntary Assisted
Dying Act 2017
In section 71AA(2) of the Drugs, Poisons and
Controlled Substances Act 1981, for "or the
Access to Medicinal Cannabis Act 2016 or
the regulations under that Act" substitute
", the Access to Medicinal Cannabis Act 2016
or the regulations under that Act or the Voluntary
Assisted Dying Act 2017 or the regulations under
that Act".
Division 2--Consequential amendment
of other Acts
19 Bail Act 1977
(1) In item 6(b) of Schedule 1 to the Bail Act 1977,
for "section 71AA" substitute "section 71AA(1)".
(2) After item 6(b) of Schedule 1 to the Bail Act 1977
insert--
"(ba) section 71AA(2) (trafficking in a quantity of
a drug or drugs of dependence that is not less
than the commercial quantity applicable to
that drug or those drugs for the benefit of or
at the direction of a criminal organisation);".
(3) In item 6(e) of Schedule 1 to the Bail Act 1977,
after "paragraph (a), (b)," insert "(ba),".
20 Confiscation Act 1997
(1) In section 3(1) of the Confiscation Act 1997,
in the definition of serious drug offence--
(a) after paragraph (a) insert--
"(ab) section 71AA(2) (trafficking in a drug
or drugs of dependence for the benefit
of or at the direction of a criminal
organisation--commercial quantity);";
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(b) in paragraphs (c), (d) and (e), for
"paragraph (a)" substitute "paragraph (a),
(ab)".
(2) In clause 1(ab) of Schedule 2 to the Confiscation
Act 1997, for "section 71AA" substitute
"section 71AA(1)".
(3) After clause 1(ab) of Schedule 2 to the
Confiscation Act 1997 insert--
"(aba) section 71AA(2) (trafficking in a quantity of
a drug or drugs of dependence that is not less
than the commercial quantity applicable to
that drug or those drugs for the benefit of or
at the direction of a criminal organisation);".
(4) In clause 1(d) and (e) of Schedule 2 to the
Confiscation Act 1997, after "(ab)," insert
"(aba),".
21 Sentencing Act 1991
(1) In section 3(1) of the Sentencing Act 1991,
in the definition of category 1 offence, after
paragraph (j) insert--
"(ja) an offence against section 71AA(2) of the
Drugs, Poisons and Controlled Substances
Act 1981 (trafficking in a drug or drugs of
dependence for the benefit of or at the
direction of a criminal organisation--
commercial quantity);".
(2) In section 3(1) of the Sentencing Act 1991, in the
definition of category 2 offence, in paragraph (g),
for "section 71AA" substitute "section 71AA(1)".
(3) In clause 4(a)(ii) of Schedule 1 to the
Sentencing Act 1991, for "section 71AA"
substitute "section 71AA(1)".
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(4) After clause 4(a)(ii) of Schedule 1 to the
Sentencing Act 1991 insert--
"(iia) section 71AA(2) (trafficking in a quantity of
a drug or drugs of dependence that is not less
than the commercial quantity applicable to
that drug or those drugs for the benefit of or
at the direction of a criminal organisation);".
22 Surveillance Devices Act 1999
In section 3(1) of the Surveillance Devices
Act 1999, in the definition of serious drug
offence--
(a) in paragraph (ab), for "section 71AA"
substitute "section 71AA(1)";
(b) after paragraph (ab) insert--
"(aba) section 71AA(2) (trafficking in a
quantity of a drug or drugs of
dependence that is not less than the
commercial quantity applicable to
that drug or those drugs for the benefit
of or at the direction of a criminal
organisation);";
(c) in paragraphs (f) and (g), after "(ab)," insert
"(aba),".
26
Justice Legislation Amendment (Police and Other Matters) Act 2019
No. of 2019
Part 4--Interim closure notices and long-term closure orders
Part 4--Interim closure notices and
long-term closure orders
Division 1--Amendment of the Second-Hand
Dealers and Pawnbrokers Act 1989
23 Definitions
In section 3(1) of the Second-Hand Dealers and
Pawnbrokers Act 1989 insert the following
definitions--
"interim closure notice means a notice issued
under section 26ZT(1);
long-term closure order means an order made
under section 26ZU(4);
serious criminal offence means an offence
committed in Victoria that is punishable by a
term of imprisonment of 2 years or more;".
24 New Division 5 of Part 5 inserted
After section 26ZS of the Second-Hand Dealers
and Pawnbrokers Act 1989 insert--
"Division 5--Interim closure notices
and long-term closure orders
26ZT Interim closure notice
(1) The Chief Commissioner of Police may issue
a notice that specified premises be closed in
respect of any person carrying on business as
a second-hand dealer at the premises if the
Commissioner--
(a) is satisfied on reasonable grounds
that--
(i) a person is carrying on business
as a second-hand dealer at the
premises; and
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Part 4--Interim closure notices and long-term closure orders
(ii) the person is not a registered
second-hand dealer; and
(iii) the person is not exempt from the
requirement to be registered under
this Act or the regulations; or
(b) reasonably suspects that a serious
criminal offence is being committed at
the specified premises that are also the
business premises or storage premises
of--
(i) a registered second-hand dealer;
or
(ii) a person exempt from the
requirement to be registered under
this Act or the regulations.
(2) An interim closure notice--
(a) must specify the premises, or the part of
the premises, that are the subject of the
notice; and
(b) prohibits a person at the specified
premises--
(i) carrying on business as a
second-hand dealer; and
(ii) altering the form of any
second-hand goods or disposing
of any second-hand goods at the
premises in any way for the period
of the notice; and
(c) must be served personally on the
occupier of the premises in accordance
with section 391 of the Criminal
Procedure Act 2009 and a copy of the
notice must be posted in a conspicuous
place at the entrance to the premises;
and
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Part 4--Interim closure notices and long-term closure orders
(d) takes effect from the time it is served
on the occupier; and
(e) has effect for a period not exceeding
72 hours, unless it is sooner cancelled
by the Chief Commissioner of Police.
(3) The Chief Commissioner of Police must not
issue--
(a) more than one interim closure notice
for the same premises in any 7-day
period; or
(b) under subsection (1)(b), more than
3 interim closure notices in relation
to a course of conduct that constitutes
a serious criminal offence.
26ZU Magistrates' Court may make long-term
closure order
(1) The Chief Commissioner of Police may
apply to the Magistrates' Court for an order
that the premises specified in the application
be closed in respect of any person carrying
on business as a second-hand dealer at the
premises.
(2) An application under subsection (1) must be
made in accordance with the rules of court
(if any).
(3) The Chief Commissioner of Police must
serve a copy of an application made under
subsection (1) on the occupier of the
premises specified in the application as soon
as practicable after the application has been
made.
(4) The Magistrates' Court may make a
long-term closure order closing the specified
premises, or a part of those premises, in
respect of any person carrying on business as
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a second-hand dealer if the Court is satisfied
that--
(a) a person is carrying on business as a
second-hand dealer at the premises and
the person--
(i) is not a registered second-hand
dealer; and
(ii) is not exempt from the
requirement to be registered under
this Act or the regulations; or
(b) there has been, or there is likely to be,
a serious criminal offence committed
at or in connection with the specified
premises that are also the business
premises or storage premises of--
(i) a registered second-hand dealer;
or
(ii) a person exempt from the
requirement to be registered
under this Act or the regulations.
(5) The Magistrates' Court must--
(a) determine the period for which the
order is to be in force, as appropriate
in the circumstances; and
(b) specify this period in the order.
(6) If an order is made under subsection (4)
and the person who is carrying on business
as a second-hand dealer at the premises did
not appear in the proceeding, the Chief
Commissioner of Police must--
(a) serve the order--
(i) personally on the person in
accordance with section 391 of the
Criminal Procedure Act 2009; or
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Part 4--Interim closure notices and long-term closure orders
(ii) if personal service of the order
cannot be promptly effected, by
substituted service in accordance
with section 397 of the Criminal
Procedure Act 2009; and
(b) post a copy of the order in a
conspicuous place at the entrance
to the premises.
(7) An application may be made under this
section regardless of whether an interim
closure notice has been issued with respect
to the specified premises.
(8) If an interim closure notice is in force with
respect to the specified premises on an
application being made under this section,
the Magistrates' Court may cancel the notice
if the Court considers that--
(a) the notice should not have been issued;
or
(b) there are no longer sufficient grounds
for the notice to continue in force.
(9) If the Magistrates' Court makes the order
and an interim closure notice is in force with
respect to the premises, the interim closure
notice ceases to have effect.
26ZV Cancellation of long-term closure order
(1) A person may apply to the Magistrates'
Court for the cancellation of a long-term
closure order made in respect of premises
occupied by the person.
(2) An application under subsection (1) must be
made in accordance with the rules of court
(if any).
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Part 4--Interim closure notices and long-term closure orders
(3) The person must serve a copy of an
application made under subsection (1) on
the Chief Commissioner of Police as soon
as practicable after the application has been
made.
(4) On an application under subsection (1), the
Magistrates' Court may cancel the order if
the court is satisfied--
(a) that the circumstances of the
second-hand dealer have materially
altered since the order was made and
as a result the order is no longer
appropriate; or
(b) that the basis for making the order no
longer exists.
Note
A person who becomes the owner of premises that are
subject to a long-term closure order may make an
application under this section.
26ZW Failure to comply with an interim closure
notice or long-term closure order
(1) A person must not knowingly or recklessly,
while an interim closure notice or long-term
closure order is in force, fail to comply with
that notice or order.
Penalty: 200 penalty units.
(2) A person does not commit an offence against
subsection (1) if--
(a) the person presents or points to
evidence that suggests that the person
did not know, and could not reasonably
have been expected to know, that an
interim closure notice or long-term
closure order was in force with respect
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Part 4--Interim closure notices and long-term closure orders
to the premises specified in the notice
or order; and
(b) the contrary is not proved (beyond
reasonable doubt) by the prosecution.
26ZX No compensation--closure of premises
(1) No compensation is payable by the State in
respect of anything done under or arising out
of the making of an interim closure notice or
long-term closure order.
(2) In this section--
compensation includes damages and
any other form of monetary
compensation.".
25 Service
In section 27(1) of the Second-Hand Dealers
and Pawnbrokers Act 1989, for "and 26ZS"
substitute ", 26ZS, 26ZT and 26ZU(6)".
26 Regulations
(1) In section 31(1)(db)(ii) of the Second-Hand
Dealers and Pawnbrokers Act 1989, after
"infringement notice" insert ", including a
different infringement penalty for natural
persons and bodies corporate".
(2) Section 31(2A) of the Second-Hand Dealers
and Pawnbrokers Act 1989 is repealed.
27 Statute law revision--Second-Hand Dealers and
Pawnbrokers Act 1989
In section 26ZB(1) of the Second-Hand Dealers
and Pawnbrokers Act 1989, for "section 20"
substitute "section 20(1), 20(2)".
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Part 4--Interim closure notices and long-term closure orders
Division 2--Amendment of the
Confiscation Act 1997
28 New section 192 inserted
After section 191 of the Confiscation Act 1997
insert--
"192 Transitional--Justice Legislation
Amendment (Police and Other Matters)
Act 2019
(1) Item 15A of Schedule 1, as inserted by
section 29 of the Justice Legislation
Amendment (Police and Other Matters)
Act 2019, applies to an offence alleged to
have been committed on or after the
commencement of section 29 of that Act.
(2) For the purposes of subsection (1), if an
offence is alleged to have been committed
between 2 dates, one before and one on or
after the commencement of section 29 of
the Justice Legislation Amendment (Police
and Other Matters) Act 2019, the offence
is alleged to have been committed before that
commencement.".
29 Schedule 1--Offences--Forfeiture on court order
After item 15 of Schedule 1 to the Confiscation
Act 1997 insert--
"15A. An offence against any of the following
provisions of the Second-Hand Dealers
and Pawnbrokers Act 1989--
(a) section 5(1) or (1A) (carrying on
business as a second-hand dealer or
pawnbroker without registration);
(b) section 19A(1) or (2) (payment for
scrap metal);
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Part 4--Interim closure notices and long-term closure orders
(c) section 19B(1), (2) or (3) (buying,
disposing of or possessing unidentified
motor vehicles);
(d) section 22(2) (failing to inform police
officer of suspicion that goods in
possession may have been stolen).".
Division 3--Amendment of the
Magistrates' Court Act 1989
30 Rules of Court
Before section 16(1)(d) of the Magistrates'
Court Act 1989 insert--
"(ce) any matter or thing required or permitted
by or under Division 5 of Part 5 of the
Second-Hand Dealers and Pawnbrokers
Act 1989 to be dealt with by rules of court
or otherwise necessary or required for the
purposes of Division 5 of Part 5 of that
Act;".
35
Justice Legislation Amendment (Police and Other Matters) Act 2019
No. of 2019
Part 5--Restorative engagement process
Part 5--Restorative engagement process
Division 1--Amendment of Victoria Police Act 2013
31 Definitions
In section 3(1) of the Victoria Police Act 2013
insert the following definition--
"restorative engagement process--see
section 174A(1);".
32 Making of complaints
(1) After section 167(3) of the Victoria Police
Act 2013 insert--
"(3A) A police officer or protective services
officer (officer A) is not required to make
a complaint under subsection (3) about
the conduct of another police officer or
protective services officer (officer B) if
officer A has reason to believe that the
conduct of officer B is conduct that
contravenes Part 4, 6 or 7 of the Equal
Opportunity Act 2010 in relation to--
(a) officer A; or
(b) a spouse or domestic partner of
officer A who is also a police officer
or protective services officer.".
(2) At the foot of section 167 of the Victoria Police
Act 2013 insert--
"Note
See section 174A for how this section applies in relation to
a restorative engagement process.".
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Part 5--Restorative engagement process
33 Certain complaints to be referred to the Chief
Commissioner
At the foot of section 168 of the Victoria Police
Act 2013 insert--
"Note
See section 174A for how this section applies in relation to a
restorative engagement process.".
34 Complaints made to a police officer or protective
services officer
At the foot of section 169 of the Victoria Police
Act 2013 insert--
"Note
See section 174A for how this section applies in relation to a
restorative engagement process.".
35 New section 174A inserted
After section 174 of the Victoria Police Act 2013
insert--
"174A Restorative engagement process
(1) The Secretary to the Department of Justice
and Community Safety may establish a
process (restorative engagement process),
to be administered by a person or body
independent of Victoria Police, to
acknowledge and respond to an allegation by
a member of Victoria Police personnel that
the member is a victim of sex discrimination
or sexual harassment by another member of
Victoria Police personnel.
(2) Sections 167, 168 and 169 do not apply in
relation to any information about the conduct
of a police officer or protective services
officer that is disclosed for the purpose of,
or in the course of, a restorative engagement
process unless the participant in the process
who alleges that they are the victim of sex
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Part 5--Restorative engagement process
discrimination or sexual harassment consents
to the information being dealt with as a
complaint under those sections.
(3) A participant in a restorative engagement
process who alleges that they are the victim
of sex discrimination or sexual harassment
may make a complaint under section 167 in
relation to the alleged conduct at any time,
including when they are participating in the
process.
(4) In this section--
sex discrimination means discrimination
(within the meaning of the Equal
Opportunity Act 2010) on the basis
of any of the following attributes--
(a) breastfeeding;
(b) gender identity;
(c) lawful sexual activity;
(d) marital status;
(e) parental status or status as a carer;
(f) pregnancy;
(g) sex;
(h) sexual orientation;
(i) an expunged homosexual
conviction;
sexual harassment has the same meaning as
in the Equal Opportunity Act 2010.".
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Part 5--Restorative engagement process
36 Disclosure of restricted matter prohibited
After section 185(2)(c) of the Victoria Police
Act 2013 insert--
"(ca) for the purpose of, or in the course of, a
restorative engagement process, with the
written consent of the person participating in
the process who alleges that they are the
victim of sex discrimination or sexual
harassment; or".
Division 2--Amendment of Protected
Disclosure Act 2012
37 Circumstances in which information may be
disclosed
In section 54 of the Protected Disclosure
Act 2012--
(a) after subsection (2)(d) insert--
"(da) for the purpose of, or in the course
of, a restorative engagement process,
with the written consent of the person
participating in the process who
alleges that they are the victim of sex
discrimination or sexual harassment;";
(b) in subsection (3) insert the following
definition--
"restorative engagement process has the
meaning given in section 174A(1)
of the Victoria Police Act 2013;".
39
Justice Legislation Amendment (Police and Other Matters) Act 2019
No. of 2019
Part 6--Amendment of Firearms Act 1996
Part 6--Amendment of Firearms Act 1996
38 Definitions
In section 3(1) of the Firearms Act 1996--
(a) in the definition of category A longarm, in
paragraph (c), after "other than a" insert
"lever action,";
(b) in the definition of category B longarm,
after paragraph (d) insert--
"(e) a lever action shotgun with a magazine
capacity of no more than 5 rounds;";
(c) in the definition of category D longarm,
after paragraph (b) insert--
"(ba) a lever action shotgun with a magazine
capacity of more than 5 rounds;".
39 Possession of a traffickable quantity of firearms
For section 7C of the Firearms Act 1996
substitute--
"7C Possession of a traffickable quantity of
firearms
(1) A person must not possess 2 or more
firearms unless the person does so in
accordance with this Act or the regulations.
Penalty: 1200 penalty units or 10 years
imprisonment.
(2) A person who is convicted or found guilty
of an offence against subsection (1) is not
liable to be convicted of an offence against
section 5(1), section 6(1), (2), (3), (4), (5)
or (6), section 6A(1), (2) or (3), section 7(1),
(2), (3), (4), (5) or (6) or section 7B(1)
or (2).".
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Part 6--Amendment of Firearms Act 1996
40 Particulars of licences
In section 35(1)(a) of the Firearms Act 1996
omit "and address".
41 Particulars of dealers licences
In section 67(1)(a) of the Firearms Act 1996
omit "and address".
42 Prohibition on the acquisition or disposal of
traffickable quantities of firearms
For section 101A(1) and (2) of the Firearms
Act 1996 substitute--
"(1) A person, who is not the holder of a dealers
licence, must not acquire or dispose of 2 or
more firearms within a period of 12 months,
unless the person does so in accordance with
this Act or the regulations.
Penalty: 1200 penalty units or 10 years
imprisonment.".
43 Notification of change of certain details
Section 139(a) of the Firearms Act 1996 is
repealed.
44 New sections 221 and 222 inserted
At the end of Part 12 of the Firearms Act 1996
insert--
"221 Transitional provision--Justice
Legislation Amendment (Police and Other
Matters) Act 2019--lever action shotguns
(1) On and after the commencement of
section 38 of the Justice Legislation
Amendment (Police and Other Matters)
Act 2019--
(a) a lever action shotgun with a magazine
capacity of no more than 5 rounds
held by a person under a category A
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Part 6--Amendment of Firearms Act 1996
longarm licence immediately before
the commencement may continue to be
held under the person's category A
longarm licence (including any renewal
of that licence) if that person does not
hold a category B longarm licence; and
(b) a lever action shotgun with a magazine
capacity of more than 5 rounds held by
a person under a category A longarm
licence immediately before the
commencement--
(i) in the case of a person who
does not hold a category B
longarm or category D longarm
licence, may continue to be held
under the person's category A
longarm licence (including any
renewal of that licence); and
(ii) in the case of a person who holds
a category B longarm licence and
does not hold a category D
longarm licence, is to be held by
the person under the category B
longarm licence (including any
renewal of that licence); and
(c) if a person has a permit to acquire a
lever action shotgun in force but has
not yet acquired a lever action shotgun
under the permit, the permit ceases to
be in force, unless--
(i) in the case of a lever action
shotgun with a magazine capacity
of no more than 5 rounds, the
person holds a category B
longarm licence; or
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Part 6--Amendment of Firearms Act 1996
(ii) in the case of a lever action
shotgun with a magazine capacity
of more than 5 rounds, the person
holds a category D longarm
licence; and
(d) a person referred to in section 185(1),
(2) or (2A) who holds an interstate
licence that authorises the possession,
carriage or use of a lever action shotgun
is authorised under that licence to
possess, carry or use the shotgun for the
purposes set out in those subsections.
(2) If a permit to acquire ceases to be in force as
a result of subsection (1)(c), section 112(1)
applies as if a reference to the permit being
surrendered or cancelled were a reference to
the permit ceasing to be in force.
222 Transitional provision--Justice
Legislation Amendment (Police and Other
Matters) Act 2019--trafficking
The amendments made to this Act by
sections 39 and 42 of the Justice Legislation
Amendment (Police and Other Matters)
Act 2019 apply only to offences alleged to
have been committed on or after the
commencement of those sections.".
45 Schedule 2 amended--lever action shotguns
In item 1(8) of Schedule 2 to the Firearms
Act 1996, before paragraph (a) insert--
"(aa) possess, carry or use a detachable magazine
with a capacity greater than 5 shots in
combination with a lever action shotgun; or".
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46 Statute law revision--Firearms Act 1996
In section 72(4)(b) of the Firearms Act 1996, for
"persons" substitute "person's".
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Part 7--Amendment of Sex Offenders Registration Act 2004
Part 7--Amendment of Sex Offenders
Registration Act 2004
47 Purpose and outline
In section 1(1)(a)(ii) of the Sex Offenders
Registration Act 2004 omit "future".
48 Access to the Register to be restricted
In section 63(2) of the Sex Offenders
Registration Act 2004, for "attempt to ensure
that access to the personal information in the
Register is restricted to the greatest extent that
is possible without interfering with the purpose
of this Act" substitute "support access and
disclosure of personal information in the Register
occurring only to the extent authorised or
permitted in accordance with this Act".
49 Person with access to Register not to disclose
personal information from it
(1) In section 64(2)(a) of the Sex Offenders
Registration Act 2004 omit "law enforcement
or".
(2) After section 64(2)(a) of the Sex Offenders
Registration Act 2004 insert--
"(ab) for the purpose of the performance of a
function of a law enforcement agency
under any Act or law; or".
(3) In section 64(4) of the Sex Offenders
Registration Act 2004--
(a) in the definition of Australian Crime
Commission, for "Commonwealth."
substitute "Commonwealth;";
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Part 7--Amendment of Sex Offenders Registration Act 2004
(b) insert the following definitions--
"government department includes a
government department (however
described) of a foreign jurisdiction;
law enforcement agency means--
(a) Victoria Police; or
(b) the police force or police service
(however described) of a foreign
jurisdiction;
public statutory authority includes a public
statutory authority (however described)
of a foreign jurisdiction.".
50 Schedule 1--Class 1 offences
In item 8A of Schedule 1 to the Sex Offenders
Registration Act 2004, in paragraph (iii), for
"child with mental impairment or under care,
supervision or authority of defendant" substitute
"sexual intercourse or other sexual activity with
child outside Australia".
51 Schedule 2--Class 2 offences
(1) In item 28AC of Schedule 2 to the Sex Offenders
Registration Act 2004, after paragraph (vii)
insert--
'(viia) section 471.25A(1), (2) or (3) (using a
postal or similar service to "groom" another
person to make it easier to procure persons
under 16);'.
(2) In item 28A of Schedule 2 to the Sex Offenders
Registration Act 2004, after paragraph (iv)
insert--
"(ivaa) section 474.23A(1) (conduct for the purposes
of electronic service used for child abuse
material);".
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(3) In item 28A of Schedule 2 to the Sex Offenders
Registration Act 2004--
(a) in paragraph (ivc), for "child with mental
impairment or under care, supervision or
authority of defendant" substitute "using a
carriage service for sexual activity with
person under 16 years of age";
(b) in paragraph (vii), for "age)." substitute
"age);";
(c) after paragraph (vii) insert--
'(viii) section 474.27AA(1), (2) or (3)
(using a carriage service to "groom"
another person to make it easier to
procure persons under 16 years of
age).'.
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Part 8--DNA profile samples and senior police officer authorisations
Part 8--DNA profile samples and senior
police officer authorisations
Division 1--Amendment of the Crimes Act 1958
52 Definitions
(1) In section 464(2) of the Crimes Act 1958 insert
the following definitions--
"DNA person means--
(a) a person who is of or above the age of
18 years who--
(i) is suspected of having committed
or attempted to commit an
indictable offence; or
(ii) has been charged with an
indictable offence; or
(iii) has been summonsed to answer to
a charge for an indictable offence;
or
(b) a child of or above the age of 15 years
but under the age of 18 years who--
(i) is suspected of having committed
or attempted to commit a DNA
sample offence; or
(ii) has been charged with a DNA
sample offence; or
(iii) has been summonsed to answer
to a charge for a DNA sample
offence;
DNA profile sample means a sample taken for the
purpose of deriving a DNA profile that is--
(a) a blood sample;
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(b) a sample of hair, other than pubic hair,
including the root if required;
(c) a sample of saliva;
(d) a scraping taken from the mouth;
DNA sample offence means any indictable
offence specified in Schedule 9;
IBAC has the same meaning as in the
Independent Broad-based Anti-corruption
Commission Act 2011;
senior police officer authorisation means an
authorisation under section 464ZFAC;".
(2) In section 464(2) of the Crimes Act 1958, in the
definition of detained or protected person--
(a) for paragraph (b) substitute--
"(b) is a prisoner in a prison or a person
detained in a police gaol who is
transferred from the prison or police
gaol to a facility or an institution
referred to in section 56AB(1) of the
Corrections Act 1986; or
(ba) is a forensic patient or a forensic
resident within the meaning of the
Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997; or";
(b) in paragraph (d), for "patient" substitute
"compulsory patient or a security patient".
(3) In section 464(2) of the Crimes Act 1958, in
the definition of forensic procedure, after
"fingerprint" insert "or a DNA profile sample".
(4) In section 464(2) of the Crimes Act 1958, for
paragraph (a) of the definition of related material
and information substitute--
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Part 8--DNA profile samples and senior police officer authorisations
"(a) in relation to any DNA profile sample or
any sample taken in a forensic procedure
conducted in accordance with sections 464R
to 464ZA or section 464ZF, 464ZFAAA
or 464ZFAB, means notes and audiovisual
recordings made of the taking of the DNA
profile sample or the conduct of the forensic
procedure and any information which may
identify the person contained in any record
of or report relating to the DNA profile
sample or the forensic procedure and in any
copy of the record or report;".
(5) In section 464(2) of the Crimes Act 1958, in the
definition of serious offenders index--
(a) after paragraph (a) insert--
"(ab) registrable offenders in accordance
with section 464ZFAB; and
(ac) offenders in accordance with
section 464ZFAC(2)(a)(i); and";
(b) after paragraph (b)(i) insert--
"(ia) an offence and to which section
464ZFB(1AA) applies; or".
(6) In section 464(2) of the Crimes Act 1958, in
the definition of suspects index--
(a) after "464U" insert ", DNA profile samples
taken in accordance with section 464SC
or 464SE";
(b) after "section 464ZFAAA" insert
"or section 464ZFAC(2)(a)(ii)".
53 Heading amended
In the heading preceding section 464R of the
Crimes Act 1958, after "procedures" insert
"and DNA profile samples".
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54 Informed consent
For section 464S(3) of the Crimes Act 1958
substitute--
"(3) A person is taken as having refused consent
if--
(a) the person is--
(i) held in a prison, police gaol or
youth justice centre; or
(ii) a prisoner in a prison or a
person detained in a police
gaol who is transferred from
the prison or police gaol to a
facility or an institution referred
to in section 56AB(1) of the
Corrections Act 1986; and
(b) within 24 hours after the giving of the
information referred to in subsection
(1) the person refuses or fails to consent
to the request to undergo a forensic
procedure.".
55 New sections 464SC, 464SD, 464SE and 464SF
inserted
After section 464SB of the Crimes Act 1958
insert--
"464SC DNA profile sample from DNA person
(1) A police officer may request a DNA person
who is an adult to give a DNA profile sample
only if the police officer is satisfied that the
taking of the sample is justified in all of the
circumstances, and the DNA person--
(a) is suspected on reasonable grounds
of having committed the indictable
offence; or
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Part 8--DNA profile samples and senior police officer authorisations
(b) has been charged with the indictable
offence; or
(c) has been summonsed to answer to a
charge for the indictable offence.
(2) A police officer may request a DNA person
who is a child to give a DNA profile sample
only if the police officer is satisfied that the
taking of the sample is justified in all of the
circumstances, and the DNA person--
(a) is believed on reasonable grounds of
having committed the DNA sample
offence; or
(b) has been charged with the DNA sample
offence; or
(c) has been summonsed to answer to a
charge for the DNA sample offence.
(3) A DNA profile sample may be taken from--
(a) a DNA person who is an adult if--
(i) the adult gives informed consent;
or
(ii) a senior police officer gives
an authorisation under
section 464SE; or
(b) a DNA person who is a child if--
(i) the child and a parent or guardian
of the child give informed
consent; or
(ii) a senior police officer gives
an authorisation under
section 464SE.
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464SD Informed consent--DNA person and their
parent or guardian
(1) In this section--
parent or guardian means a parent or
guardian of a DNA person who is a
child.
(2) A DNA person or a parent or guardian gives
informed consent to a request for the DNA
person to give a DNA profile sample if the
DNA person or the parent or guardian
consents to the request after a police officer
informs the DNA person or the parent or
guardian in language likely to be understood
by the DNA person or the parent or
guardian--
(a) of the purpose for which the sample is
required; and
(b) of the nature of the procedure sought to
be conducted to take the sample; and
(c) for a DNA person who is an adult, of
the indictable offence which the person
is suspected of having committed or
with which the person has been charged
or for which the person has been
summonsed to answer to a charge; and
(d) for a DNA person who is a child, of
the DNA sample offence which the
child is believed on reasonable grounds
of having committed or with which the
child has been charged or for which the
child has been summonsed to answer to
a charge; and
(e) for a DNA person who is a child, that
for the child to give informed consent
both the child and the child's parent or
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guardian must consent to the taking of
the sample; and
(f) that the taking of the sample could
produce evidence to be used in a court;
and
(g) that information obtained from analysis
of forensic material obtained by the
taking of the sample will be placed on a
DNA database and may be used for the
purpose of a criminal investigation or
any other purpose for which the DNA
database may be used under this
Subdivision or under a corresponding
law of a participating jurisdiction; and
(h) that if a sample is taken from the DNA
person and--
(i) the person has not been charged
with an indictable offence or a
DNA sample offence (as the case
requires) at the end of 12 months
after the taking of the sample; or
(ii) the person has been so charged but
the charge is not proceeded with
or the DNA person is not found
guilty of the offence whether on
appeal or otherwise before the end
of that period--
the sample taken will be destroyed; and
(i) that the DNA person or the parent or
guardian may refuse to consent to the
taking of the sample; and
(j) that if the DNA person or the parent
or guardian refuses to consent to the
taking of the sample, that a senior
police officer may authorise the taking
of the sample.
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(3) A police officer who informs a DNA person
or a parent or guardian of the matters in
subsection (2)--
(a) must record the giving of the
information and the person's
responses, if any, by audio recording
or audiovisual recording or in writing
signed by the person; and
(b) must give or send by registered post
to the person or the person's legal
practitioner or the parent or guardian of
the child if the child's legal practitioner
is not known, without charge--
(i) if the giving of the information
and the responses are recorded by
audio recording or audiovisual
recording, a copy of the recording
as soon as practicable, but not
more than 7 days after the
information is given, and, if a
transcript of the recording is
prepared, a copy of the transcript
as soon as practicable; and
(ii) if the giving of the information
and the responses are recorded
in writing signed by the person,
a copy of the record as soon as
practicable.
(4) A DNA person is taken as having refused
consent if--
(a) the DNA person is--
(i) held in a prison, police gaol or
youth justice centre; or
(ii) a prisoner in a prison or a
person detained in a police
gaol who is transferred from
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the prison or police gaol to a
facility or an institution referred
to in section 56AB(1) of the
Corrections Act 1986; and
(b) within 24 hours after the giving
of the information referred to in
subsection (2) the DNA person fails
to consent to the request to take the
sample.
(5) A parent or guardian is taken as having
refused consent if the parent or guardian is
not capable of giving informed consent by
reason of mental impairment.
464SE Senior police officer may authorise the
taking of a DNA profile sample from DNA
person
(1) A senior police officer who is not involved
in investigating the offence for which the
taking of a sample is required may authorise
the taking of a DNA profile sample from a
DNA person if the senior police officer is
satisfied that--
(a) the person is a DNA person who is--
(i) under lawful arrest by warrant; or
(ii) under lawful arrest under
section 458 or 459 or a
provision of any other Act;
or
(iii) in the custody of an investigating
official in accordance with an
order of the Magistrates' Court or
the Children's Court (as the case
requires) under section 464B(5)
and, at the time of the application
for that order, the person was held
in a prison or police gaol; and
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(b) the person is not incapable of giving
informed consent by reason of mental
impairment; and
(c) for a DNA person who is an adult, the
person has refused to give consent to a
request under section 464SC(1); and
(d) for a DNA person who is a child,
both the child and the child's parent or
guardian have refused to give consent
to a request under section 464SC(2);
and
(e) for a DNA person who is an adult,
there are reasonable grounds to
believe the person has committed the
indictable offence in respect of which
the authorisation is sought; and
(f) for a DNA person who is a child,
the person is believed on reasonable
grounds of having committed the DNA
sample offence in respect of which the
authorisation is sought; and
(g) the taking of the sample without the
consent of the person is justified in all
of the circumstances.
(2) A senior police officer must not give an
authorisation for the taking of a DNA profile
sample from a DNA person if--
(a) an application to a court for an order
under section 464T, 464U or 464V in
respect of that person has been made in
relation to the same matter and on the
same grounds but has been refused; or
(b) a previous application for an
authorisation under this section in
respect of that person has been
considered in relation to the same
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matter and on the same grounds but
has not been given.
(3) An authorisation given in contravention of
subsection (2) is void.
(4) Nothing in subsection (2) prevents a later
application for an order under section 464T,
464U or 464V or an authorisation under this
section on different or further grounds.
(5) An authorisation under this section must be
given to a police officer.
464SF Making or refusing authorisation--DNA
profile sample
(1) Before a senior police officer gives or
refuses to give an authorisation under
section 464SE, the senior police officer
must allow a reasonable opportunity, if
practicable in person, for the following
persons to inform the senior police officer
whether there is any reason why the DNA
profile sample should not be taken--
(a) the DNA person;
(b) the parent or guardian of the DNA
person if the DNA person is a child;
(c) the DNA person's legal practitioner, if
any.
(2) An authorisation under section 464SE must
be given in writing, be signed by the senior
police officer giving it and include--
(a) the date and time when the
authorisation is given; and
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Part 8--DNA profile samples and senior police officer authorisations
(b) the grounds for giving the
authorisation.
Note
The Electronic Transactions (Victoria) Act 2000
applies to enable an authorisation to be given
electronically, including facsimile transmission and
email, in accordance with that Act.
(3) The senior police officer must give, or cause
another police officer to give, to the DNA
person a copy of the authorisation as soon as
practicable after the authorisation is made
and, in any event, before the taking of the
DNA profile sample.
(4) Before the DNA profile sample is taken, a
police officer must inform the DNA person
orally and in person of the following--
(a) that an authorisation under
section 464SE has been given;
(b) the matters referred to in
subsection (2)(a) and (b);
(c) that a police officer may use
reasonable force to enable the
DNA profile sample to be taken.
(5) The person who gives the information
required to be given by subsection (4)
must--
(a) record, or cause to be recorded, the
giving of that information by audio
recording or audiovisual recording; and
(b) give or send by registered post, or cause
to be given or sent by registered post
without charge, a copy of the recording
as soon as practicable, but not more
than 7 days after the taking of the DNA
profile sample to--
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(i) the DNA person or their legal
practitioner; or
(ii) the parent or guardian of a DNA
person who is a child if the child's
legal practitioner is not known.
(6) If a senior police officer refuses to give an
authorisation under section 464SE in respect
of a DNA person, the senior police officer
must--
(a) inform, or cause another police officer
to inform, the DNA person orally of the
decision as soon as practicable after the
refusal; and
(b) give written notice of the decision to
the DNA person within 7 days after the
refusal and to the parent or guardian of
a DNA person who is a child.
(7) A failure of the senior police officer or a
police officer to comply with this section
does not invalidate any authorisation made
by the senior police officer but constitutes
non-compliance for the purposes of
section 464ZE(1)(a).".
56 Caution before forensic procedure
(1) Insert the following heading to section 464Y of
the Crimes Act 1958--
"Caution before forensic procedure or taking
of a DNA profile sample".
(2) In section 464Y(1) of the Crimes Act 1958--
(a) after "before a" insert "DNA profile sample
is taken in accordance with section 464SC,
464SE, 464ZFAC or 464ZFAE or a";
(b) after "other person" insert "taking the
sample or".
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(3) In section 464Y(2)(b) of the Crimes Act 1958,
after "practitioner" insert "or the parent or
guardian of a DNA person who is a child if the
child's legal practitioner is not known".
57 Procedure for taking samples etc.
(1) In section 464Z(1) of the Crimes Act 1958, after
"a person" insert "or a class of persons".
(2) For section 464Z(1A) of the Crimes Act 1958
substitute--
"(1A) The Chief Commissioner of Police may
authorise a police officer or police custody
officer, or a class of police officers or police
custody officers, to supervise for the
purposes of subsection (3A) or (3AC)--
(a) the taking of scrapings from the mouth;
or
(b) the taking of a DNA profile sample that
is a scraping from the mouth.".
(3) After section 464Z(2) of the Crimes Act 1958
insert--
"(2A) The taking of a DNA profile sample or
the conduct of a forensic procedure in
accordance with this Subdivision, must be
taken or conducted by the least intrusive
and least painful method practicable in the
circumstances.".
(4) After section 464Z(3) of the Crimes Act 1958
insert--
"(3AAA) For the purposes of a DNA profile sample
taken in accordance with this Subdivision--
(a) a sample may only be taken by a
medical practitioner or nurse of the
same sex, if practicable, as the person
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from whom the sample is to be taken;
and
(b) if the sample is to be taken from a
child the sample must be taken in the
presence of a parent or guardian of the
child or, if a parent or guardian cannot
be located, an independent person of
the same sex, if practicable, as the
child.".
(5) After section 464Z(3AB) of the Crimes Act 1958
insert--
"(3AC) Despite subsection (3AAA), a person from
whom a DNA profile sample is to be taken in
accordance with this Subdivision may elect
to provide instead a scraping taken by the
person from their mouth if a police officer
authorised in accordance with subsection
(1A) considers that it is appropriate for the
person to take the scraping.
(3AD) An election made by a person under
subsection (3AC) must be recorded by
audio recording or audiovisual recording
or in writing signed by the person.".
(6) In section 464Z(3A) of the Crimes Act 1958,
after "subsection (3)" insert "or (3AAA)".
(7) In section 464Z(3B) of the Crimes Act 1958,
after "subsection (3AA)" insert "or (3AC)".
58 Execution of authorisation, direction or order
(1) After section 464ZA(1)(a) of the Crimes
Act 1958 insert--
"(ab) a senior police officer gives an authorisation
under section 464SE for the taking of a DNA
profile sample; or
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(ac) a senior police officer gives an authorisation
under section 464ZFAE for the taking of a
DNA profile sample from a person; or".
(2) In section 464ZA(1) of the Crimes Act 1958--
(a) in paragraph (d)--
(i) after "directs" insert "that a DNA
profile sample be taken from";
(ii) for "section 464ZFAB to undergo a
forensic procedure--" substitute
"section 464ZFAB; or";
(b) after paragraph (d) insert--
"(e) a senior police officer authorises
the taking of a DNA profile sample
from a person under section 464ZFAC
or 464ZFAE--";
(c) before "conduct the procedure" insert
"take the sample or".
(3) In section 464ZA(2)(a) of the Crimes Act 1958,
before "on whom" insert "from whom the sample
is to be taken or".
(4) After section 464ZA(3) of the Crimes Act 1958
insert--
"(3A) The taking of a DNA profile sample
(other than a scraping from the person's
mouth taken by that person)--
(a) must be recorded by audiovisual
recording, if practicable; or
(b) must be witnessed by an independent
medical practitioner or independent
nurse.".
(5) In section 464ZA(6) of the Crimes Act 1958--
(a) after "section 464SA" insert
", 464SE, 464ZFAC or 464ZFAE";
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(b) in paragraph (a), after "if" insert "the taking
of the sample or";
(c) in paragraph (b), after "witnessed" insert
"the taking of the sample or".
(6) In section 464ZA(6A) of the Crimes Act 1958,
after "person" insert "from whom the sample was
taken or".
(7) For section 464ZA(7) of the Crimes Act 1958
substitute--
"(7) If a DNA profile sample taken in accordance
with an authorisation or a direction, or a
compulsory procedure or a forensic
procedure conducted in accordance with an
authorisation of a senior police officer or an
order of a court, is recorded by audiovisual
recording, the applicant for the authorisation,
direction or order must--
(a) without charge; and
(b) as soon as practicable but not more
than 7 days after the procedure was
conducted or the sample was taken--
give or send by registered post a copy of the
audiovisual recording to the person from
whom the sample was taken or on whom the
procedure was conducted or to the person's
legal practitioner.
(8) If the person referred to in subsection (7)
from whom the sample was taken or on
whom the procedure was conducted was a
child, the applicant for the authorisation or
order must also give or send by registered
post a copy of the audiovisual recording to
the parent or guardian of the child if the
child's legal practitioner is not known.".
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59 Forensic reports to be made available
At the end of section 464ZD of the Crimes
Act 1958 insert--
"(2) If a DNA profile sample has been taken
from a DNA person in accordance with
section 464SC or 464SE, a copy of every
forensic report must be given or sent by
registered post as soon as practicable to--
(a) that person or the person's legal
practitioner; and
(b) if that person is a child, also to the
child's parent or guardian.
(3) If a DNA profile sample has been taken
from a person in accordance with
section 464ZFAB, a senior police officer
authorisation or an authorisation under
section 464ZFAE, a copy of every forensic
report must be given or sent by registered
post as soon as practicable to that person
or the person's legal practitioner.".
60 Evidence relating to forensic procedures
(1) Insert the following heading to section 464ZE
of the Crimes Act 1958--
"Evidence relating to forensic procedures or
DNA profile samples".
(2) In section 464ZE of the Crimes Act 1958--
(a) in subsection (1), after "a result of" insert
"a DNA profile sample taken from a person
or";
(b) in subsection (1)(ab), before "the procedure"
insert "the taking of the sample or";
(c) in subsection (1)(b), before "the procedure"
insert "the taking of the sample or";
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(d) in subsection (1)(d)--
(i) in subparagraph (i), before
"forensic procedure" insert
"taking of the sample or the";
(ii) after "464ZFAAA," insert
"464ZFAC,";
(e) in subsection (2), before "a forensic
procedure" insert "the taking of a DNA
profile sample or";
(f) in subsection (4), before "conduct" insert
"taking of a DNA profile sample or the";
(g) in subsection (4)(a), after "enable" insert
"the sample to be taken or";
(h) in subsection (5), after "as a result of" insert
"a DNA profile sample taken from a person
or".
61 Forensic procedure for registrable offenders under
the Sex Offenders Registration Act 2004
(1) In the heading to section 464ZFAB of the
Crimes Act 1958, for "Forensic procedure
for" substitute "DNA profile sample from".
(2) In section 464ZFAB(2) of the Crimes Act 1958--
(a) for "a person to undergo a forensic procedure
for the taking of a sample from any part of
the body" substitute "that a DNA profile
sample be taken from a person";
(b) in paragraph (b), for "forensic sample from
the person" substitute "sample from the
person that may be retained indefinitely".
(3) In section 464ZFAB(3) of the Crimes Act 1958--
(a) after "in the notice" insert "to have the DNA
profile sample taken";
(b) omit "to undergo a forensic procedure".
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(4) In section 464ZFAB(7) of the Crimes Act 1958,
for "forensic procedure is conducted on"
substitute "DNA profile sample is taken from".
62 New sections 464ZFAC, 464ZFAD and 464ZFAE
inserted
After section 464ZFAB of the Crimes Act 1958
insert--
"464ZFAC Senior police officer authorisation--to
take DNA profile sample from certain
adults
(1) In this section--
DNA offence means--
(a) an indictable offence or an offence
specified in Schedule 8; or
(b) any offence of conspiracy to
commit, incitement to commit
or attempting to commit an
indictable offence or an offence
specified in Schedule 8.
(2) A senior police officer may authorise the
taking of a DNA profile sample from a
person if--
(a) the person--
(i) is found guilty of a DNA offence;
or
(ii) is found not guilty of a DNA
offence, other than an offence
heard and determined summarily,
because of mental impairment
under the Crimes (Mental
Impairment and Unfitness
to be Tried) Act 1997; and
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(b) it is not more than 6 months after--
(i) the final determination of an
appeal against the conviction or
the verdict of not guilty because
of mental impairment (as the case
requires); or
(ii) the expiration of any appeal
period; and
(c) the person is not under the age of
18 years at the time--
(i) the finding of guilt for the DNA
offence is made; or
(ii) the finding of not guilty for the
DNA offence because of mental
impairment is made; and
(d) the Chief Commissioner of Police does
not have a sample from the person that
may be retained indefinitely.
(3) An authorisation given for a sample to
be taken from a person referred to in
subsection (2)(a)(i) before the appeal period
in relation to a conviction for the DNA
offence has expired or an appeal against
the conviction (if any) has been finally
determined (whichever is the later), must
not be carried out unless--
(a) the appeal period expires; or
(b) an appeal against conviction (if any) is
finally determined and the conviction
for the DNA offence is upheld.
(4) An authorisation given for a sample to
be taken from a person referred to in
subsection (2)(a)(ii) before the appeal
period in relation to the verdict of not guilty
because of mental impairment has expired
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or an appeal against the verdict (if any) has
been finally determined (whichever is the
later), must not be carried out unless--
(a) the appeal period expires; or
(b) an appeal against the verdict is
dismissed.
(5) If leave to appeal against a verdict of not
guilty because of mental impairment in
respect of a DNA offence is sought after
the expiry of the appeal period in relation
to the verdict, an authorisation for a sample
to be taken from a person referred to in
subsection (2)(a)(ii) before leave to appeal is
sought, if not carried out before that leave is
sought, must not be carried out unless--
(a) leave to appeal against the verdict is
refused; or
(b) leave to appeal against the verdict is
granted but the appeal is dismissed.
(6) If leave to appeal against a conviction for a
DNA offence is sought after the expiry of the
appeal period in relation to the conviction,
an authorisation for a sample to be taken
from a person referred to in subsection
(2)(a)(i) before leave to appeal is sought,
if not carried out before that leave is sought,
must not be carried out unless--
(a) leave to appeal against the conviction is
refused; or
(b) leave to appeal against the conviction
is granted and the appeal is finally
determined and the conviction for the
DNA offence is upheld.
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(7) If an authorisation for a sample to be taken
from a person referred to in subsection (2)(a)
has been carried out after the expiry of the
appeal period in relation to the conviction
for the DNA offence or the verdict of not
guilty for the DNA offence because of
mental impairment and leave to appeal
against the conviction or the verdict (as the
case requires) is granted after the expiry of
that period--
(a) any sample and any related material
and information taken may be retained
by a police officer but must not be
used for any purpose pending the final
determination of the appeal against the
conviction or the verdict; and
(b) if, on appeal, the conviction or
the verdict is set aside, the Chief
Commissioner of Police must,
without delay, destroy or cause to be
destroyed any sample taken and any
related material and information.
(8) If on appeal a conviction for the
DNA offence or the verdict of not guilty
for the DNA offence because of mental
impairment (as the case requires) is set
aside, an authorisation for a sample to be
taken from a person in respect of the DNA
offence ceases to have effect.
(9) An authorisation given under this section
must be in writing signed by the senior
police officer giving it.
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464ZFAD Notice to attend--to take DNA profile
sample from certain adults
(1) In this section--
relevant person means a person other than a
person who is a detained or protected
person.
(2) If a senior police officer authorisation for
a DNA profile sample to be taken from a
relevant person is given, a notice to attend
must be attached to the authorisation and
served on the person, that requires the person
to attend a police station specified in the
notice to have the DNA profile sample taken,
within 28 days after the expiry of the period
referred to in section 464ZFAC(3) or (4)
(as the case requires) or the date of service
of the notice (whichever is the later).
(3) A notice under subsection (2) must state--
(a) the date on which the senior police
officer authorisation was given; and
(b) the kind of DNA profile sample that is
to be taken from the person; and
(c) the name, rank and telephone number
of the senior police officer who gave
the senior police officer authorisation;
and
(d) the Chief Commissioner of Police does
not have a sample from the person that
may be retained indefinitely; and
(e) that if the person fails to comply with
the notice, an application for a warrant
to arrest the person may be made
without further notice to the person;
and
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(f) that the person may wish to seek legal
advice as to the effect of the notice; and
(g) the name, rank and telephone number
of the police officer serving the notice
or causing the notice to be served; and
(h) that a police officer may use reasonable
force to enable the sample to be taken.
(4) A notice under subsection (2) must be served
in accordance with section 464ZFAA(4)
and (5).
(5) Section 464ZFAA(6), (7) and (8) apply to
a notice served under subsection (2) as if it
were a notice served under that section.
(6) If a notice under subsection (2) is not
served within the period referred to in
section 464ZFAC(2)(b), a police officer
may, within 28 days of the expiry of that
period, apply to a magistrate or registrar
of the Magistrates' Court for a warrant
under subsection (7).
(7) On an application referred to in
subsection (6) being made a magistrate
or a registrar may, if satisfied by evidence
on oath or by affidavit that the notice was
not served on the relevant person, issue a
warrant authorising the person to whom it is
directed, if necessary--
(a) to break, enter and search by day or
by night any place where the relevant
person named in the warrant is
suspected to be; and
(b) to arrest the relevant person; and
(c) to detain the relevant person for as
long as reasonably permits for the
DNA profile sample to be taken.
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(8) A magistrate or a registrar must not issue a
warrant under subsection (7) unless satisfied
by evidence on oath or by affidavit that--
(a) reasonable attempts have been made to
serve the notice on the relevant person;
and
(b) the DNA profile sample has not been
taken from the relevant person.
(9) Section 464ZFA(2), (3), (4), (5), (6)
and (7) apply to a warrant issued under
subsection (7) as if it were a warrant issued
under section 464ZFA(1B).
464ZFAE Senior police officer may authorise taking
a DNA profile sample from certain adults
and children who have previously
provided a sample
(1) A senior police officer, on request from a
police officer, may authorise the taking of
a DNA profile sample from a person if the
senior police officer is satisfied that--
(a) a sample for the purpose of deriving a
DNA profile was previously taken from
the person--
(i) in accordance with an order
made by a court under section
464T, 464U, 464V, 464ZF
or 464ZFAAA; or
(ii) in accordance with section 464SC,
an authorisation given under
section 464SE, a direction given
under section 464ZFAB or a
senior police officer authorisation;
and
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(b) a forensic scientist has not derived a
DNA profile from the sample taken
from the person.
(2) A senior police officer may serve, or may
cause to be served, a notice on a person
referred to in subsection (1) directing the
person to attend at a police station specified
in the notice within 28 days after service of
the notice to take a DNA profile sample.
(3) A notice under subsection (2) must state--
(a) the date on which the senior police
officer authorisation was given; and
(b) the kind of DNA profile sample that is
to be taken from the person; and
(c) the name, rank and telephone number
of the senior police officer who gave
the authorisation; and
(d) that the Chief Commissioner of Police
does not have a DNA profile of the
person; and
(e) that a DNA profile was not able to be
derived by a forensic scientist from the
sample given by the person--
(i) in accordance with an order
made by a court under section
464T, 464U, 464V, 464ZF
or 464ZFAAA; or
(ii) in accordance with section 464SC,
an authorisation given under
section 464SE, a direction given
under section 464ZFAB or a
senior police officer authorisation;
and
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(f) that if the person fails to comply with
the notice, application for a warrant to
arrest the person may be made without
further notice to the person; and
(g) that the person may wish to seek legal
advice as to the effect of the notice; and
(h) the name, rank and telephone number
of the police officer serving the notice
or causing the notice to be served; and
(i) that a police officer may use reasonable
force to enable the DNA profile sample
to be taken.
(4) A notice under subsection (2) must be served
by delivering a true copy of the notice to the
person personally.
(5) Section 464ZFAA(6), (7) and (8) apply to a
notice served under subsection (2) as if it
were a notice served under that section.".
63 Retention of information following finding of
guilt etc.
(1) For section 464ZFB(1AA)(a) of the Crimes
Act 1958 substitute--
"(a) a DNA profile sample is taken or a forensic
procedure is conducted on a person of or
above the age of 18 years in accordance
with section 464R, 464SA, 464SC, 464SE,
464T(3) or 464V(5); and".
(2) In section 464ZFB(1AA) of the Crimes
Act 1958--
(a) in paragraph (b)(i), before "the forensic
procedure" insert "the DNA profile sample
was taken or";
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(b) in paragraph (b)(iii), before "forensic
procedure" insert "DNA profile sample or
the".
(3) In section 464ZFB(1) of the Crimes Act 1958--
(a) in paragraph (a), before "forensic" insert
"DNA profile sample is taken from a DNA
person who is a child in accordance with
section 464SC or 464SE or a";
(b) in paragraph (b)(i), before "the forensic
procedure" insert "the DNA profile sample
was taken or";
(c) in paragraph (b)(iii), before "forensic
procedure" insert "DNA profile sample or".
(4) In section 464ZFB(1A) of the Crimes Act 1958--
(a) in paragraph (a), before "forensic" insert
"DNA profile sample is taken from a DNA
person who is a child in accordance with
section 464SC or 464SE or a";
(b) in paragraph (b)(i), before "the forensic
procedure" insert "the DNA profile sample
was taken or";
(c) in paragraph (b)(iii), before "forensic
procedure" insert "DNA profile sample or".
64 Victorian DNA database
(1) In section 464ZFD(1) of the Crimes Act 1958--
(a) before "on whom" insert "from whom a
DNA profile sample was taken or";
(b) after "or 464ZFAB" insert ", 464ZFAC,
464ZFAE".
(2) In section 464ZFD(2) of the Crimes Act 1958,
before "on whom" insert "from whom a DNA
profile sample was taken or".
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65 Report to Attorney-General
In section 464ZFE of the Crimes Act 1958--
(a) in paragraph (c), after "relates" insert
"and the reason for the destruction of the
sample";
(b) for paragraph (d) substitute--
"(d) if a sample has been destroyed, the date
that the requirement to destroy it arose,
the date of destruction and the name of
the person who has destroyed it; and
(da) information on any DNA profile
sample that has been retained for
12 months or more including the
status of any investigation of the DNA
person from whom the sample was
taken; and
(db) information on forensic material taken
from suspects in accordance with
section 464R, 464T or 464U that has
been retained for 12 months or more
including the status of any investigation
of the suspect from whom the forensic
material was taken; and";
(c) in paragraph (e), for "section 464SA"
substitute "sections 464SA and 464SE";
(d) in paragraph (f), for "section 464SA"
substitute "sections 464SA and 464SE".
66 Destruction of identifying information
In section 464ZG of the Crimes Act 1958--
(a) in subsection (1)(a), before "the forensic
procedure" insert "the DNA profile sample
was taken or";
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(b) in subsection (1)(c), before "the forensic
procedure" insert "the DNA profile sample
or";
(c) in subsection (3), before "a forensic
procedure" insert "a DNA profile sample
has been taken or";
(d) in subsection (3)(a), before "conduct" insert
"taking of the sample or the";
(e) in subsection (6), before "on whom the
forensic procedure" insert "from whom
the DNA profile sample was taken or".
67 Forensic information from juveniles
(1) In section 464ZGA(1)(a) of the Crimes Act 1958,
after "person" insert "has a DNA profile sample
taken or".
(2) In section 464ZGA(2) of the Crimes Act 1958--
(a) in paragraph (a)(i), after "to which" insert
"the DNA profile sample was taken or";
(b) in paragraph (a)(iii), after "result of" insert
"the DNA profile sample or".
68 Safeguards after giving sample
After section 464ZGE(11)(a) of the Crimes
Act 1958 insert--
"(ab) requesting, under section 464SC, the person
to give a DNA profile sample; or
(ac) making an authorisation under section 464SE
for the taking of a DNA profile sample from
the person; or".
69 Destruction of samples given by police and VIFM
personnel and storage of DNA information
In section 464ZGFB(4) of the Crimes Act 1958,
for "DNA sample" substitute "sample".
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70 Supply of forensic material for purposes of DNA
database
In section 464ZGG(1) of the Crimes Act 1958, in
the definition of excluded forensic material, after
paragraph (b) insert--
"(ba) taken from a DNA person in accordance with
section 464SC or 464SE; or
(bb) taken from a person in accordance with
section 464ZFAC; or
(bc) taken from a person in accordance with
section 464ZFAE; or".
71 Use of information on Victorian DNA database
(1) For section 464ZGH(2)(g)(iv) of the Crimes
Act 1958 substitute--
"(iv) the IBAC;".
(2) After section 464ZGH(2)(g) of the Crimes
Act 1958 insert--
"(ga) the IBAC performing its functions under
this Act;".
72 Disclosure of Victorian information
(1) For section 464ZGK(2)(g)(iv) of the Crimes
Act 1958 substitute--
"(iv) the IBAC; or".
(2) After section 464ZGK(2)(g) of the Crimes
Act 1958 insert--
"(ga) the IBAC performing its functions under this
Act;".
(3) In section 464ZGK(3) of the Crimes Act 1958,
before "carrying" insert "taking of a DNA profile
sample or the".
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(4) In section 464ZGK(3) of the Crimes Act 1958--
(a) in paragraph (a), after "suspect," insert
"DNA person,";
(b) in paragraph (j), after "suspect's," insert
"DNA person's,".
73 Immunity of medical practitioners, nurses,
midwives, dentists and other persons
(1) In section 464ZH of the Crimes Act 1958, before
"conducting" insert "taking a DNA profile sample
or".
(2) In section 464ZH(a) of the Crimes Act 1958,
before "conducted" insert "taken from or".
(3) After section 464ZH(a)(ii) of the Crimes
Act 1958 insert--
"(iia) a request given by a police officer under
section 464SC; or
(iib) an authorisation given by a senior police
officer under section 464SE; or
(iic) a direction given by a police officer under
section 464ZFAB; or
(iid) a senior police officer authorisation; or
(iie) an authorisation given by a senior police
officer under section 464ZFAE; or".
74 Regulations
In section 464ZJ(1)(d) of the Crimes Act 1958,
before "conducting" insert "taking DNA profile
samples or".
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75 New section 464ZLA inserted
After section 464ZL of the Crimes Act 1958
insert--
"464ZLA Validation of sample taken in accordance
with section 464ZFAB
(1) In this section--
commencement day means the day on which
section 79 of the Justice Legislation
Amendment (Police and Other
Matters) Act 2019 comes into
operation.
(2) A sample taken in a forensic procedure
conducted in accordance or purported to
be conducted in accordance with section
464ZFAB before the commencement day
in a prison was not unlawfully taken only
because the person taking the sample had
no lawful authority to enter and remain in
the prison.".
76 New heading and sections 464ZM, 464ZN, 464ZO,
464ZP, 464ZQ, 464ZR and 464ZS inserted
Before the heading to Subdivision (31) of
Division 1 of Part III of the Crimes Act 1958
insert--
"Oversight by IBAC
464ZM Functions of IBAC
The IBAC has the following functions under
this Subdivision to monitor compliance by
police officers and members of Victoria
Police personnel or any other person who
carried out a function or power in respect
of--
(a) the taking of a DNA profile sample;
(b) a senior police officer authorisation;
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(c) an authorisation under section
464ZFAE;
(d) any matter on which the Chief
Commissioner is required to
report on under section 464ZFE.
464ZN Chief Commissioner of Police to report to
IBAC
(1) As soon as practicable after 1 January but
not later than 1 March in each year, the Chief
Commissioner of Police must provide a
written report to the IBAC for the previous
12 months in relation--
(a) to any DNA profile sample taken or
senior police officer authorisation or
authorisation given and applied for;
and
(b) to the destruction of any DNA profile
sample taken or given in accordance
with a senior police officer
authorisation or authorisation; and
(c) to any matter on which the Chief
Commissioner is required to report
on under section 464ZFE.
(2) The report must include--
(a) a list that identifies by a unique
identifying number every DNA
profile sample taken or given in
accordance with a senior police
officer authorisation or authorisation
under this Subdivision within the
period to which the report relates; and
(b) information on whether any of the
DNA profile samples listed in the
report were taken from a child; and
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(c) the date on which every DNA profile
sample listed in the report was taken;
and
(d) information on whether any of the
DNA profile samples listed in the
report or in any previous report
submitted under this section have
been destroyed within the period to
which the report relates and the reason
for the destruction of the sample; and
(e) if a DNA profile sample has
been destroyed the date that the
requirement to destroy it arose
under section 464ZFC, the date
of destruction and the name of the
person who destroyed it; and
(f) the number of senior police officer
authorisations and authorisations under
section 464SE or 464ZFAE given
within the period to which the report
relates; and
(g) the number of DNA profile samples
taken by consent in accordance with
section 464SC within the period to
which the report relates; and
(h) the number of authorisations under
section 464SE, senior police officer
authorisations and authorisations under
section 464ZFAE refused within the
period to which the report relates; and
(i) information on any DNA profile
sample that has been retained for
12 months or more including the
status of any investigation of the
DNA person from whom the sample
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was taken within the period to which
the report relates.
464ZO Inspection of records by authorised
officers
(1) In this section--
authorised officer is--
(a) the IBAC Commissioner; or
(b) a sworn IBAC Officer who is
authorised under subsection (2);
IBAC Commissioner means the
Commissioner within the meaning
of the Independent Broad-based
Anti-corruption Commission
Act 2011;
police personnel premises has the same
meaning as it has in the Independent
Broad-based Anti-corruption
Commission Act 2011;
records include the following--
(a) forensic material;
(b) records or recordings, whether
in writing or in digital, audio or
audiovisual form or otherwise,
of--
(i) the taking of a DNA
profile sample by informed
consent in accordance
with section 464SC; and
(ii) an authorisation under
section 464SE or a senior
police officer authorisation
or an authorisation under
section 464ZFAE;
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(c) documents on a database;
sworn IBAC Officer has the same meaning
as in the Independent Broad-based
Anti-corruption Commission
Act 2011.
(2) The IBAC Commissioner may authorise a
sworn IBAC Officer to exercise the powers
of an authorised officer under this section.
(3) An authorised officer must, from time to
time, inspect any records of Victoria Police
or any other person or body that carried out
a function or power for the taking of a DNA
profile sample that the authorised officer
considers necessary to determine the extent
of compliance by a member of Victoria
Police personnel or the person or body with
this Subdivision for the following--
(a) the taking of a DNA profile sample by
way of informed consent in accordance
with section 464SC;
(b) an authorisation under section 464SE;
(c) a senior police officer authorisation;
(d) an authorisation under section
464ZFAE;
(e) any matter on which the Chief
Commissioner is required to report
on under section 464ZFE.
(4) For the purpose of an inspection under this
section, an authorised officer--
(a) after notifying the Chief Commissioner
of Police, may enter at any reasonable
time police personnel premises or any
premises occupied by any other person
or body that carried out a function or
power under this Subdivision; and
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(b) is entitled to have full and free access
at all reasonable times to all records of
Victoria Police or any other person or
body that carried out a function or
power under this Subdivision that are
relevant to the inspection; and
(c) may require a member of Victoria
Police personnel or a relevant person or
body to give the authorised officer any
information that the IBAC considers
necessary, being information that is in
that person's or body's possession, or to
which the person or body has access,
and that is relevant to the inspection;
and
(d) may do anything that is necessary or
convenient to be done to enable an
inspection to be carried out under this
section.
(5) The Chief Commissioner of Police must
ensure that members of Victoria Police
personnel give an authorised officer any
assistance that the authorised officer
reasonably requires to enable the authorised
officer to perform functions under this
section.
464ZP IBAC to report to the Attorney-General
(1) The IBAC must give a written report to the
Attorney-General at yearly intervals on--
(a) the report given by the Chief
Commissioner of Police to the
IBAC under section 464ZN; and
(b) the results of each inspection under
section 464ZO; and
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(c) any recommendations about actions
that should be taken in relation to a
matter arising out of the report.
(2) The Attorney-General must cause a report
under this section to be laid before each
House of Parliament within 15 sitting days
after the day on which the Attorney-General
receives the report.
464ZQ Recommendations
(1) The IBAC may at any time make
recommendations to the Chief Commissioner
about actions that should be taken in relation
to a matter arising out of the functions of
IBAC under this Subdivision.
(2) Within a reasonable time after receiving a
recommendation under subsection (1), the
Chief Commissioner must--
(a) take the recommended action; or
(b) if the Chief Commissioner has not
taken the recommended action or does
not intend to take the recommended
action--give a report to the IBAC
stating the reason for not taking or
intending to take the action.
464ZR Attorney-General may make a complaint
to the IBAC
The Attorney-General may make a complaint
to the IBAC under section 51 of the
Independent Broad-based Anti-corruption
Commission Act 2011 about the taking, use,
retention or destruction of forensic material
under this Subdivision.
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464ZS Immunity of the IBAC and sworn IBAC
Officers
(1) The IBAC or a sworn IBAC Officer is not
personally liable for anything necessarily
or reasonably done or omitted to be done in
good faith--
(a) in the performance of a duty or a
function or the exercise of a power
under this Subdivision; or
(b) in the reasonable belief that the act or
omission was in the performance of a
duty or a function or the exercise of a
power under this Act.
(2) Any liability resulting from an act or
omission that would, but for subsection (1),
attach to the IBAC or a sworn IBAC Officer
attaches instead to the State.".
77 New section 635 inserted
After section 634 of the Crimes Act 1958
insert--
"635 Transitional provision--Justice
Legislation Amendment (Police and Other
Matters) Act 2019
(1) The amendments made to this Act by
sections 52, 53 and 55 of the Justice
Legislation Amendment (Police and Other
Matters) Act 2019 apply--
(a) to an offence alleged to have been
committed before the day on which
those sections come into operation
if a criminal proceeding in respect
of the alleged offence has not been
commenced before that day; and
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(b) to an offence alleged to have been
committed on or after the day on which
those sections come into operation.
(2) The amendments made to this Act by
section 62 of the Justice Legislation
Amendment (Police and Other Matters)
Act 2019 apply to a person found guilty or
found not guilty because of mental
impairment on or after the day on which that
section comes into operation.".
78 Schedule 9 inserted
After Schedule 8 of the Crimes Act 1958
insert--
"Schedule 9--DNA sample offences
Section 464(2)
1 Child homicide.
2 Murder.
3 Manslaughter.
4 Treason.
5 An offence against section 15A(1) of the Crimes
Act 1958 (causing serious injury intentionally in
circumstances of gross violence).
6 An offence against section 15B(1) of the Crimes
Act 1958 (causing serious injury recklessly in
circumstances of gross violence).
7 An offence against section 16 of the Crimes Act 1958
(causing serious injury intentionally).
8 An offence against section 21A(1) of the Crimes
Act 1958 (stalking) and the accused has within the
preceding 10 years been convicted or found guilty of
an offence against that section in relation to any person
or an offence in the course of committing which the
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accused used or threatened to use violence against any
person.
9 An offence against section 38(1) of the Crimes Act 1958
(rape).
10 An offence against section 39(1) of the Crimes Act 1958
(rape by compelling sexual penetration).
11 An offence against section 42(1) of the Crimes Act 1958
(assault with intent to commit a sexual offence).
12 An offence against section 47(1) of the Crimes Act 1958
(abduction or detention for a sexual purpose).
13 An offence against section 49A(1) of the Crimes
Act 1958 (sexual penetration of a child under the age
of 12).
14 An offence against section 49B(1) of the Crimes
Act 1958 (sexual penetration of a child under the age
of 16) in circumstances other than where at the time
of the alleged offence the child was 12 years of age or
more and the accused was not more than 2 years older
than the child.
15 An offence against section 49J(1) of the Crimes
Act 1958 (persistent sexual abuse of a child under
the age of 16).
16 An offence against section 49P(1) of the Crimes
Act 1958 (abduction or detention of a child under the
age of 16 for a sexual purpose).
17 An offence against any of the following provisions of
Subdivision (8C) of Division 1 of Part I of the Crimes
Act 1958 (incest) in circumstances other than where
both people are aged 18 or older--
(a) section 50C(1) (sexual penetration of a child
or lineal descendant);
(b) section 50D(1) (sexual penetration of a
step-child);
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(c) section 50E(1) (sexual penetration of a parent,
lineal ancestor or step-parent);
(d) section 50F(1) (sexual penetration of a sibling
or half-sibling).
18 An offence against section 63A of the Crimes Act 1958
(kidnapping).
19 An offence against section 75A(1) of the Crimes
Act 1958 (armed robbery).
20 An offence against section 77 of the Crimes Act 1958
(aggravated burglary).
21 Any indictable offence in the course of committing
which the accused, or any person involved in the
commission of the offence, is alleged to have used or
threatened to use a firearm, offensive weapon, or
explosive as defined by section 77(1A) of the Crimes
Act 1958.
22 An offence against section 77A of the Crimes Act 1958
(home invasion).
23 An offence against section 77B of the Crimes Act 1958
(aggravated home invasion).
24 An offence against section 79 of the Crimes Act 1958
(carjacking).
25 An offence against section 79A of the Crimes Act 1958
(aggravated carjacking).
26 An offence against section 197A of the Crimes Act 1958
(arson causing death).
27 An offence against section 318(1) of the Crimes
Act 1958 (culpable driving causing death).
28 An offence against section 319(1) or (1A) of the Crimes
Act 1958 (dangerous driving causing death or serious
injury).
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29 An offence against section 319AA(1) of the Crimes
Act 1958 (dangerous or negligent driving while pursued
by police).
30 An offence against any of the following provisions
of the Drugs, Poisons and Controlled Substances
Act 1981 (as in force immediately before the
commencement of the Drugs, Poisons and Controlled
Substances (Amendment) Act 2001)--
(a) section 71(1) (trafficking in a drug of dependence)
in circumstances where the offence is committed
in relation to a quantity of a drug of dependence
that is not less than the commercial quantity
applicable to that drug of dependence;
(b) section 72(1) (cultivation of narcotic plants) in
circumstances where the offence is committed in
relation to a quantity of a drug of dependence,
being a narcotic plant, that is not less than the
commercial quantity applicable to that narcotic
plant;
(c) section 79(1) (conspiracy) in circumstances where
the conspiracy is to commit an offence referred to
in paragraph (a) or (b).
31 An offence against any of the following provisions
of the Drugs, Poisons and Controlled Substances
Act 1981 (as in force immediately before the
commencement of the Drugs, Poisons and Controlled
Substances (Amendment) Act 2001)--
(a) section 71(1) (trafficking in a drug of
dependence);
(b) section 72(1) (cultivation of narcotic plants);
(c) section 79(1) (conspiracy) in circumstances
where the conspiracy is to commit an offence
referred to in paragraph (a) or (b).
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32 An offence against any of the following provisions of the
Drugs, Poisons and Controlled Substances Act 1981--
(a) section 71 (trafficking in a quantity of a drug or
drugs of dependence that is not less than the large
commercial quantity applicable to that drug or
those drugs);
(b) section 71AA (trafficking in a quantity of a drug
or drugs of dependence that is not less than the
commercial quantity applicable to that drug or
those drugs);
(c) section 72 (cultivation of a narcotic plant in a
quantity of a drug of dependence, being a narcotic
plant, that is not less than the large commercial
quantity applicable to that narcotic plant);
(d) section 72A (cultivation of a narcotic plant in a
quantity of a drug of dependence, being a narcotic
plant, that is not less than the commercial quantity
applicable to that narcotic plant);
(e) section 79(1) (conspiracy) in circumstances where
the conspiracy is to commit an offence referred to
in paragraph (a), (b), (c) or (d).
33 An offence against any of the following provisions of the
Drugs, Poisons and Controlled Substances Act 1981--
(a) section 71AB (trafficking in a drug of dependence
to a child);
(b) section 71AC (trafficking in a drug of
dependence);
(c) section 72B (cultivation of narcotic plants);
(d) section 79(1) (conspiracy) in circumstances
where the conspiracy is to commit an offence
referred to in paragraph (a), (b) or (c).
34 An offence against section 37A or 123A of the Family
Violence Protection Act 2008 of contravening a family
violence intervention order or family violence safety
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notice (as the case requires) in the course of committing
which the accused is alleged to have used or threatened
to use violence and the accused has within the preceding
10 years been convicted or found guilty of an offence in
the course of committing which the accused used or
threatened to use violence against any person.
35 An offence against section 125A(1) of the Family
Violence Protection Act 2008 (persistent contravention
of family violence safety notices and family violence
intervention orders).
36 An offence against section 4B(1) or 21W of the
Terrorism (Community Protection) Act 2003.
37 An offence of conspiracy to commit, incitement to
commit or attempting to commit an offence referred to
in any other item of this Schedule.".
Division 2--Amendment of the
Corrections Act 1986
79 New section 43A inserted
After section 43 of the Corrections Act 1986
insert--
"43A Access to prison for taking DNA profile
sample
(1) With the permission of the Secretary or the
Governor, a police officer accompanied by
a registered medical practitioner or a nurse
may enter and remain in a prison for the
purpose of taking a DNA profile sample
from a prisoner who is the subject of a
DNA authority.
(2) The Secretary or the Governor must not
give a police officer, a registered medical
practitioner or a nurse permission under this
section unless satisfied a lawful authority
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exists for the taking of a DNA profile sample
from the prisoner.
(3) The Governor may give a police officer and
any registered medical practitioner or nurse
who accompanies the police officer a
direction--
(a) that is necessary for the management or
good order or security of the prison; or
(b) to leave the prison.
(4) In this section--
DNA authority means--
(a) a direction given under section
464ZFAB of the Crimes
Act 1958;
(b) an authorisation given under
section 464ZFAC of the Crimes
Act 1958;
DNA profile sample has the same meaning
as it has in section 464(2) of the
Crimes Act 1958.".
Division 3--Amendment of the Sex
Offenders Registration Amendment
(Miscellaneous) Act 2017
80 Forensic procedure for registrable offenders under
the Sex Offenders Registration Act 2004
(1) In section 53(2) of the Sex Offenders
Registration Amendment (Miscellaneous)
Act 2017, in proposed section 464ZFAB(10) of
the Crimes Act 1958, for "undergo a forensic
procedure" substitute "have a DNA profile
sample taken".
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(2) In section 53(2) of the Sex Offenders
Registration Amendment (Miscellaneous)
Act 2017, in proposed section 464ZFAB(13)
of the Crimes Act 1958--
(a) for "undergoes a forensic procedure"
substitute "has a DNA profile sample
taken";
(b) in paragraph (a), for "undergo the forensic
procedure" substitute "have the DNA profile
sample taken".
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Part 9--Amendment of other Acts
Division 1--Confiscation Act 1997
81 New section 193 inserted
At the end of Part 18 of the Confiscation
Act 1997 insert--
"193 Further transitional--Justice Legislation
Amendment (Police and Other Matters)
Act 2019
(1) On the commencement of section 82 of
the Justice Legislation Amendment
(Police and Other Matters) Act 2019,
this Act applies to an offence specified in
item 3A of Schedule 1, whether that offence
is alleged to have been committed before or
after that commencement.
(2) On the commencement of section 83 of
the Justice Legislation Amendment
(Police and Other Matters) Act 2019,
this Act applies to an offence specified in
clause 11, 12 or 13 of Schedule 2, whether
that offence is alleged to have been
committed before or after that
commencement.".
82 Schedule 1--Offences--Forfeiture on court order
After item 3 of Schedule 1 to the Confiscation
Act 1997 insert--
"3A. An offence against any of the following
provisions of the Australian Consumer Law
(Victoria)--
(a) section 158(1) (accepting payment
or other consideration for goods or
services and not intending to supply
the goods or services);
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(b) section 158(3) (accepting payment
or other consideration for goods or
services and intending to supply
materially different goods or
services).".
83 Schedule 2--Offences--Automatic forfeiture and
civil forfeiture
At the end of Schedule 2 to the Confiscation
Act 1997 insert--
"11. An offence against section 158(1) or (3) of
the Australian Consumer Law (Victoria)
where--
(a) only one offence against section 158(1)
or (3) of the Australian Consumer Law
(Victoria) is charged and the value of
the payment or other consideration is
$50 000 or more; or
(b) more than one offence against
section 158(1) or (3) of the Australian
Consumer Law (Victoria) is charged
and the offences are founded on the
same facts or form or are part of a
series of offences of the same or
similar character and the combined
value of the payment or other
consideration is $75 000 or more.
12. An offence against section 78(1)(a) or (b) of
the Conveyancers Act 2006 where--
(a) only one offence against section
78(1)(a) or (b) of the Conveyancers
Act 2006 is charged and the value of
the deficiency or the money not paid or
delivered is $50 000 or more; or
(b) more than one offence against section
78(1)(a) or (b) of the Conveyancers
Act 2006 is charged and the offences
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are founded on the same facts or form
or are part of a series of offences of
the same or similar character and the
combined value of the deficiency or the
money not paid or delivered is $75 000
or more.
13. An offence against section 91(1)(a), (b)
or (c) of the Estate Agents Act 1980
where--
(a) only one offence against section
91(1)(a) of the Estate Agents Act 1980
is charged and the moneys fraudulently
converted to own use are $50 000 or
more; or
(b) only one offence against section
91(1)(b) of the Estate Agents Act 1980
is charged and the moneys fraudulently
omitted to account for deliver or pay
are $50 000 or more; or
(c) only one offence against section
91(1)(c) of the Estate Agents Act 1980
is charged and the discrepancy in the
account fraudulently rendered is
$50 000 or more; or
(d) more than one offence against section
91(1)(a), (b) or (c) of the Estate Agents
Act 1980 is charged and the offences
are founded on the same facts or form
or are part of a series of offences of the
same or similar character and the
combined moneys are $75 000 or
more.".
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Part 9--Amendment of other Acts
Division 2--Sentencing Act 1991
84 Custodial sentence must be imposed for offences
against sections 317AC and 317AD in certain
circumstances
In section 10AE(1) of the Sentencing Act 1991,
for "in of the" substitute "in the".
85 Special reasons relevant to imposing minimum
non-parole periods
(1) In section 10A(2) of the Sentencing Act 1991,
for "10AC or 10AD" substitute "10AC, 10AD
or 10AE".
(2) In section 10A(3)(ad) of the Sentencing
Act 1991--
(a) omit "of not less than 3 years";
(b) after "imposed" insert "and that a non-parole
period of not less than 3 years should
ordinarily be fixed".
(3) In section 10A(3)(ae) of the Sentencing
Act 1991--
(a) omit "of not less than 3 years";
(b) after "imposed" insert "and that a non-parole
period of not less than 3 years should
ordinarily be fixed".
(4) After section 10A(3)(ae) of the Sentencing
Act 1991 insert--
"(af) the Parliament's intention that a sentence of
imprisonment should ordinarily be imposed
and that a non-parole period of not less than
2 years should ordinarily be fixed for an
offence covered by section 10AE; and".
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86 New section 169 inserted
At the end of Part 12 of the Sentencing Act 1991
insert--
"169 Transitional provision--Justice
Legislation Amendment (Police and
Other Matters) Act 2019
Section 10A as amended by section 85
of the Justice Legislation Amendment
(Police and Other Matters) Act 2019
applies to a sentence imposed on or after the
commencement of section 85 of that Act,
irrespective of when the offence was
committed.".
87 Statute law revision--section 16 of the Sentencing
Act 1991
(1) Section 16(1A)(f) of the Sentencing Act 1991 is
repealed.
(2) After section 16(1A)(e) of the Sentencing
Act 1991 insert--
"(f) on a young offender because of the operation
of section 33(1A); or".
88 Statute law revision--Part 12 of the Sentencing
Act 1991
(1) In section 160A of the Sentencing Act 1991, for
"160A" substitute "162".
(2) In section 161 of the Sentencing Act 1991
(where secondly occurring), for "161"
substitute "163".
(3) In section 163 of the Sentencing Act 1991, for
"163" substitute "164".
(4) In section 162 of the Sentencing Act 1991, for
"162" substitute "165".
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(5) In section 164 of the Sentencing Act 1991, for
"164" substitute "166".
(6) In section 168 of the Sentencing Act 1991, for
"168" substitute "167".
(7) In section 169 of the Sentencing Act 1991, for
"169" substitute "168".
Division 3--Victoria Police Act 2013
89 Maternity and parental leave amendments
(1) For sections 28(5)(d), 32(6)(d), 39(5)(d)
and 41(6)(d) of the Victoria Police Act 2013
substitute--
"(d) parental leave of one month or more
continuously;".
(2) In section 54(8) of the Victoria Police
Act 2013, in the definition of excluded leave,
for paragraph (a) substitute--
"(a) parental leave; or".
Division 4--Road Safety Act 1986
90 Definitions for the purposes of Part 6A
In section 84C(1) of the Road Safety Act 1986, in
the definition of relevant offence--
(a) in paragraph (a), for subparagraph (xvii)
substitute--
"(xvii) an offence against section 317AC,
317AD, 317AE, 317AF or 317AG of
the Crimes Act 1958;";
(b) in paragraph (b), subparagraph (iv) is
repealed.
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91 Transitional provision--Crimes Legislation
Amendment (Protection of Emergency Workers and
Others) Act 2017
(1) In section 103ZL(1) of the Road Safety
Act 1986, for "section 24" substitute
"section 23".
(2) In section 103ZL(2) of the Road Safety
Act 1986--
(a) for "subsection (2)" substitute
"subsection (1)";
(b) for "section 24" substitute "section 23".
92 New section 103ZLA inserted
After section 103ZL of the Road Safety Act 1986
insert--
"103ZLA Transitional provision--Justice
Legislation Amendment (Police and
Other Matters) Act 2019
(1) The amendment to the definition of
relevant offence in section 84C(1) made
by section 90 of the Justice Legislation
Amendment (Police and Other Matters)
Act 2019 applies only to offences alleged
to have been committed on or after the
commencement of that section of that Act.
(2) For the purposes of subsection (1), if an
offence is alleged to have been committed
between 2 dates, one before and one after the
commencement of section 90 of the Justice
Legislation Amendment (Police and Other
Matters) Act 2019, the offence is alleged
to have been committed before that
commencement.".
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Part 10--Repeal of amending Act
Part 10--Repeal of amending Act
93 Repeal of amending Act
This Act is repealed on the first anniversary of
the first day on which all of its provisions are in
operation.
Note
The repeal of this Act does not affect the continuing
operation of the amendments made by it (see section 15(1)
of the Interpretation of Legislation Act 1984).
═════════════
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Endnotes
Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current
authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech--
Legislative Assembly:
Legislative Council:
The long title for the Bill for this Act was "A Bill for an Act to amend the
Bail Act 1977, the Confiscation Act 1997, the Corrections Act 1986,
the Crimes Act 1958, the Drugs, Poisons and Controlled Substances
Act 1981, the Firearms Act 1996, the Magistrates' Court Act 1989,
the Protected Disclosure Act 2012, the Road Safety Act 1986, the
Second-Hand Dealers and Pawnbrokers Act 1989, the Sentencing
Act 1991, the Sex Offenders Registration Act 2004, the Sex Offenders
Registration Amendment (Miscellaneous) Act 2017, the Surveillance
Devices Act 1999, the Victoria Police Act 2013 and for other purposes."
By Authority. Government Printer for the State of Victoria.
105
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