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CRIMINAL ORGANISATIONS CONTROL AND OTHER ACTS AMENDMENT BILL 2014

   Criminal Organisations Control and
    Other Acts Amendment Bill 2014

                       Introduction Print


            EXPLANATORY MEMORANDUM


                             Clause Notes

                    PART 1--PRELIMINARY
Clause 1   sets out the main purposes of the Bill.
           Subclause (1) sets out the main purposes of Part 2 of the Bill
           (Confiscation) which are--
           ·       to modify the operation of the civil forfeiture regime to
                   allow an application for a civil forfeiture restraining
                   order to be made in relation to one or more Schedule 2
                   offence; and
           ·       to modify the provisions relating to hardship so that a
                   court may only take into account hardship that is undue
                   hardship; and
           ·       to introduce a regime for the automatic forfeiture of all
                   property owned or controlled by a person convicted of a
                   serious drug offence; and
           ·       to permit the holders of prescribed positions within the
                   Department of Justice to take control of restrained
                   property and exercise the powers of a trustee in relation
                   to that property.




571352                              1      BILL LA INTRODUCTION 24/6/2014

 


 

Subclause (2) sets out the main purposes of Part 3 of the Bill (Criminal Organisations Control) which are-- · to amend the Criminal Organisations Act 2012-- · to change the standard of proof that applies in relation to the making of declarations applying to individuals; and · to provide for the making of different kinds of declarations applying to organisations; and · to make further provision in relation to former members of declared organisations; and · to change the matters of which the Court must be satisfied in making control orders; and · to provide for the making of declarations and control orders by consent; and · to provide for applicants, respondents and objectors to bear their own costs in proceedings under that Act; and · to apply that Act in relation to a wider range of offences; and · to amend the Firearms Act 1996 to change how that Act operates in relation to declared individuals and declared organisation members; and · to amend the Fortification Removal Act 2013 to apply that Act in relation to a wider range of offences; and · to amend the Major Crime (Investigative Powers) Act 2004 to change how that Act operates in relation to organised crime offences involving a declared individual or a declared organisation member. Subclause (3) sets out the purposes of Part 4 of the Bill (Criminal Procedure). Part 4 of the Bill amends provisions in the Criminal Procedure Act 2009 concerning committal proceedings and the service provisions for offences detected by road safety cameras and similar devices, such as speed, red light and tollway offences. 2

 


 

Subclause (4) sets out the main purposes of Part 5 of the Bill (Mental Impairment and Unfitness to be Tried) which are-- · to amend the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and the Children, Youth and Families Act 2005-- · to enable the Children's Court to determine the issue of fitness to stand trial in relation to offences within the jurisdiction of the Children's Court; and · if the Children's Court finds that a child is unfit to stand trial and committed the offence charged, to enable the Children's Court to declare the child liable to supervision; and · after a finding of not guilty because of mental impairment for offences within the jurisdiction of the Children's Court, to enable the Children's Court to declare a child liable to supervision; and · to amend the Working with Children Act 2005 to include in the definition of finding of guilt a finding of not guilty on account of insanity. Subclause (5) sets out the main purposes of Part 6 of the Bill (Major Crime Investigative Powers) which are to amend the Major Crime (Investigative Powers) Act 2004 to improve the operation of that Act and to make a related amendment to the Criminal Procedure Act 2009. Subclause (6) sets out the main purpose of Part 7 of the Bill (Variation of Alcohol Exclusion Orders) which is to amend the Sentencing Act 1991 in relation to alcohol exclusion orders. Subclause (7) sets out the main purpose of Part 8 of the Bill (Miscellaneous Amendments) which is to make miscellaneous amendments to the Acts listed in that subclause. Clause 2 sets out the commencement of the Bill. The following amendments commence on the day after the Bill receives the Royal Assent-- · Part 1; · Part 2 (except Division 3); 3

 


 

· Division 4 of Part 5 (additional VIFM Council member); · clause 154(2) (which amends the definition of finding of guilty in the Working with Children Act 2005); · Part 6; · Part 8 (except Division 5). Clause 155 (which makes an amendment consequential on the Victoria Police Act 2013) comes into operation on the later of the day on which clause 125 comes into operation or the day on which section 278 of the Victoria Police Act 2013 comes into operation. The remaining amendments in the Bill commence by default on 1 March 2015 unless proclaimed earlier. PART 2--CONFISCATION Part 2 of the Bill amends the Confiscation Act 1997 to improve and clarify the operation of civil forfeiture and hardship provisions, implement a serious drug offender regime and to provide for the appointment of prescribed persons as trustees. Part 2 also amends the Sentencing Act 1991 and Drugs, Poisons and Controlled Substances Act 1981 to provide for the making of a serious drug offender declaration. Division 1--Amendments relating to civil forfeiture Division 1 of Part 2 of the Bill makes a series of amendments to clarify and improve the operation of existing powers and processes in the Confiscation Act 1997. Civil forfeiture provides for the confiscation of property suspected of being the proceeds or instruments of a Schedule 2 offence, where there is insufficient evidence for a criminal conviction. The existing requirement for a causal connection between property and a specific Schedule 2 offence is problematic, especially given the evidentiary threshold requirements to prove a Schedule 2 offence. The amendments to civil forfeiture will provide for the confiscation of property suspected to be the proceeds or instruments of one or more Schedule 2 offences. The court will only need to be satisfied that there are reasonable grounds to suspect property is the proceeds or instrument of the commission of at least one Schedule 2 offence for confiscation to operate. 4

 


 

Clause 3 amends the definition of tainted property in section 3(1) of the Confiscation Act 1997 for the purpose of civil forfeiture proceedings. The new definition at paragraph (a) provides that property used in connection with or derived from the commission of one or more Schedule 2 offences is tainted property. The intention is that the issue for the court's determination is the use and derivation of the property, not the commission of a specific Schedule 2 offence. The definition also provides for the use or derivation of the property from multiple Schedule 2 offences. This addresses the difficulty in linking property to the commission of a single Schedule 2 offence, especially where the proceeds used to purchase the property are from multiple Schedule 2 offences. The current definition at paragraph (a) operates to require the identification of a specific Schedule 2 offence, and the use and derivation of the property from the commission of that Schedule 2 offence. Paragraph (b) of the definition of tainted property applies to cases other than civil forfeiture. The amendment to this paragraph preserves the current operation of the tainted property definition by requiring property to be tainted in relation to "an offence". Clause 4 makes a minor change to section 36J(2)(a) of the Confiscation Act 1997 to clarify the circumstances in which a civil forfeiture restraining order ceases to apply if it applies to the same property or interest as a restraining order for the purposes of conviction based automatic forfeiture. The civil forfeiture restraining order will no longer operate if the property or interest is subject to automatic forfeiture in relation to a Schedule 2 offence. This means that the civil forfeiture restraining order and the restraining order for automatic forfeiture purposes do not need to be in relation to the same Schedule 2 offence. Clause 5 amends sections 36K(1), 36K(2)(b), 36K(3) and 36K(6) of the Confiscation Act 1997, which provide for the making of an application for a civil forfeiture restraining order. Subclause (1) amends sections 36K(1) and 36K(2)(b) to remove the requirement for the property to be tainted in relation to a Schedule 2 offence. Section 36K(1) provides for an application for a civil forfeiture restraining order to be made where a police officer or authorised person suspects on reasonable grounds that 5

 


 

property is tainted property. A consequential amendment is made to the supporting affidavit requirements in paragraph 36K(2)(b) to provide that the police officer or authorised person must state that they suspect that the property is tainted property. The police officer or authorised person must then set out the grounds on which he or she holds the suspicion. Subclause (2) amends section 36K(3) to clarify that an application for a civil forfeiture restraining order does not need to identify a particular person alleged to have committed any one or more Schedule 2 offences suspected to taint the property. This means that where the property is tainted by more than one Schedule 2 offences the application does not need to identity any particular person alleged to have committed any of the Schedule 2 offences. It also preserves the operation of civil forfeiture as in rem, that is against property rather than a person. Subclause (3) amends paragraph 36K(6)(a) to provide that a civil forfeiture restraining order can also be made in relation to different property or different interests in property in respect of the same Schedule 2 offences and paragraph 36K(6)(b) in relation the same property or interest in property in respect of different Schedule 2 offences. Clause 6 amends section 36M of the Confiscation Act 1997, which provides for the determination of an application for civil forfeiture, to include the tainting of property in relation to one or more Schedule 2 offences. Subclause (1) makes a consequential amendment to section 36M(a) to reflect changes to section 36K(2)(b) relating to the contents of an affidavit in support of an application for a civil forfeiture restraining order. Subclause (2) inserts new section 36M(2), which provides that the court may be satisfied that the deponent of the affidavit suspects that the property is tainted property, although the deponent is unable to specific which of the Schedule 2 offences taint the property or the extent to which the property is tainted by one or more Schedule 2 offences. New section 36M(2) addresses the problem of the intermingling of proceeds of crime from multiple Schedule 2 offences, where it is difficult to identify the link between the offence and the property. 6

 


 

An example is a bank account, which is reasonably suspected to be the proceeds of multiple Schedule 2 offences. The police may be unable to link the money in the bank account to any one of the specific offences on which the restraining order is based, but still reasonably suspect that the money is derived or realised from the commission of those offences. The court has the discretion to make a civil forfeiture restraining order if satisfied that the deponent reasonably suspects the property to be tainted property in relation to the relevant schedule 2 offences. Clause 7 makes a minor change to language in section 36S(2)(a) of the Confiscation Act 1997, to refer to a Schedule 2 offence. Clause 8 makes some minor changes to language in sections 36U(7), 36U(8) and 36U(9) of the Confiscation Act 1997. These changes do not alter the current meaning or operation of the provisions. Clause 9 amends section 36V(1)(b) and inserts a new section 36V(3) into the Confiscation Act 1997, which provides for the determination of an application for exclusion from civil forfeiture restraining order. Subclause (1) inserts new section 36V(1)(b) setting out the matters that the court must be satisfied of when making an exclusion order to reflect changes to the definition of tainted property made by clause 3. The court must be satisfied that the applicant was not involved in or had no knowledge of the commission of any relevant Schedule 2 offence; or did not know that the property was tainted or derived property. Subclause (2) inserts a new definition of relevant Schedule 2 offence at section 36V(3). This definition ensures that the exclusion provisions inserted by subclause (1) operate in relation to the Schedule 2 offence or offences that gave rise to the making of a civil forfeiture restraining order. For example, a police officer or person may suspect that the property is tainted in relation to the commission of five Schedule 2 offences, however the court in determining a civil forfeiture restraining order may only be satisfied that there are reasonable grounds to suspect property is tainted in relation to three Schedule 2 offences. A person should only be required to meet the test for exclusion in relation to these offences. 7

 


 

Clause 10 makes a minor change to language in section 36ZA(1) of the Confiscation Act 1997 to refer to an offence as a result of changes to the definition of tainted property made by clause 3 of the Bill. Clause 11 makes a consequential amendment to section 37(7) of the Confiscation Act 1997, reflecting changes to the definition of tainted property made by clause 3 of the Bill. Clause 12 makes statute law revisions to subsections 40A(9), 40A(10) and 40A(11) of the Confiscation Act 1997 to remove unnecessary language. Clause 13 amends section 40B(1)(b) and inserts new section 40B(3) into the Confiscation Act 1997, which sets out the matters that the court must be satisfied of when making an exclusion order. Subclause (1) inserts new section 40(1)(b) setting out the matters that the court must be satisfied of when making an exclusion order to reflect changes to the definition of tainted property made by clause 3. The court must be satisfied that the applicant was not involved in or had no knowledge of the commission of any relevant Schedule 2 offence or did not know that the property was tainted or derived property. Subclause (2) inserts a new definition of relevant Schedule 2 offence at section 40B(3). This definition ensures that the exclusion provisions inserted by subclause (1) operate in relation to the Schedule 2 offence or offences that gave rise to the making of a civil forfeiture restraining order. Division 2--Amendments relating to hardship Division 2 of Part 2 of the Bill amends the Confiscation Act 1997 to require the court to have regard to undue hardship in exercising its discretion to alleviate the hardship caused to a person from a forfeiture order or civil forfeiture order. Currently, the court has a broad discretion to alleviate hardship caused to any person from a forfeiture order or civil forfeiture order. The courts have interpreted this hardship discretion broadly as including hardship that ordinarily flows from the deprivation of property. This interpretation dilutes the purpose of the Confiscation Act 1997, which is to deprive people of the proceeds and instrumentalities of crime. 8

 


 

A requirement for undue hardship codifies the common law, which requires something more than ordinary hardship. The court will still be able to exercise its discretion to alleviate hardship where the hardship caused by forfeiture is unjust or excessive given the circumstances. Clause 14 amends section 33(5) of the Confiscation Act 1997, which provides for the determination of an application for a forfeiture order. Subclause (1) inserts a new section 35(5)(b) requiring undue hardship and making the exercise of the discretion subject to the operation of new section 33(5)(5A) inserted by subclause (2). Subclause (2) provides that the court may not take into consideration the impact of the sentence on the person when determining whether the person will suffer any undue hardship from the forfeiture of property. The rationale for this is that a sentence is imposed as punishment for committing an offence, while confiscation aims to remedy and prevent the unjust enrichment of a person at the expense of the community and future investment in criminal activity. Clause 15 amends section 38(2) of the Confiscation Act 1997 to require the court to consider undue hardship when exercising its discretion to exclude an interest in property or property from the operation of a civil forfeiture order. Clause 16 amends section 45 of the Confiscation Act 1997, to require the court in exercising its hardship discretion to have regard to undue hardship. Subclause (1) inserts a new heading to existing section 45 to reflect the requirement for undue hardship inserted in section 45(1) by subclause (2). Subclause (2) amends section 45(1) to provide that the court's discretion to relieve undue hardship that may be caused to a person by a forfeiture order or civil forfeiture order is subject to section 45(1A) inserted by subclause (4). Subclause (3) amends section 45(1)(a) to replace references to hardship with undue hardship. Subclause (4) provides that the court in considering undue hardship must not take into consideration the impact on a person of the sentence given for that offence. 9

 


 

Division 3--Amendments relating to serious drug offender regime Division 3 of Part 2 of the Bill implements a new serious drug offender regime in the Confiscation Act 1997. This regime will operate in conjunction with the current conviction based automatic forfeiture regime. The regime will result in the automatic forfeiture of all property in which a person has an interest on declaration by the court that the person is a serious drug offender. The automatic forfeiture of all property of a serious drug offender is proportionate to the harm that these offences cause the community and goes some way to compensating the community for associated justice and health related costs. The harshness of the regime is ameliorated by providing for the serious drug offender to retain minimal property similar to that retained by a person declared bankrupt. The dependants of the serious drug offender will be able to apply for payment of a prescribed sum for the purpose of securing accommodation if the residence of the serious drug offender is forfeited in certain circumstances. Innocent third parties may also be able to seek exclusion of an interest in property during the restraint period or after forfeiture in certain circumstances. The Bill makes a series of consequential amendments to existing provisions so that they apply to serious drug offences, including management of forfeited property and investigation powers. Subdivision 1--Amendment of Confiscation Act 1997 Clause 17 amends two definitions currently set out in section 3(1) of the Confiscation Act 1997 and inserts four new definitions. The changes include-- · expanding the definition of automatic forfeiture to include forfeiture under section 36GA (on declaration that a person is a serious drug offender); · expanding the definition of restraining order to include a serious drug offence restraining order; · inserting a new definition of protected property, which is described in section 24(2); · inserting a new definition of serious drug offence, which is described as an offence under sections 71, 72, 79(1), 80(1), or 80(3) of the Drugs, Poisons and Controlled Substances Act 1981; 10

 


 

· inserting a new definition of serious drug offence restraining order, which is described as a restraining order made under section 18 for the purpose referred to in section 15(1)(c); and · inserting a new definition of serious drug offender, which is described as a person declared under section 89DI of the Sentencing Act 1991 to be a serious drug offender. Clause 18 inserts new paragraph 15(1)(c) in the Confiscation Act 1997 to provide that one of the purposes for which a restraining order may be made is to satisfy automatic forfeiture of property under Division 4 of Part 3. Clause 19 inserts new section 15A in the Confiscation Act 1997 to provide that property may be subject to both a restraining order and civil forfeiture restraining order. Section 15A sets out the circumstances in which a restraining order over the same property or interest in property will cease to operate. A restraining order in relation to that interest or property will cease to operate when that interest or property is disposed of in accordance with section 44(2) because a civil forfeiture order has been made, the restraining order is set aside under section 27, or that interest or property is the subject of an exclusion order under section 22. For the avoidance of doubt, a restraining order will remain in operation for the purposes of section 15A(2)(a) in respect of any property or interest in property that is not subject to the civil forfeiture order. Clause 20 amends section 16 of the Confiscation Act 1997, which specifies the procedures for making an application for a restraining order. Subclause (1) inserts section 16(2A) that sets out when the Director of Public Prosecutions (DPP) or a prescribed person can apply for a restraining order for the purposes of the serious drug offender regime. The DPP or prescribed person may apply for a restraining order if a member of the police force or a person authorised to prosecute under the Confiscation Act 1997 believes that a person with an interest in the property will within 48 hours be charged, or has been charged or convicted of a serious drug offence. 11

 


 

Subclause (2) makes a consequential amendment to section 16(3) as a result of new section 16(2A) inserted by subclause (1) to provide that an application for a restraining order must be made before the end of the relevant period in relation to the conviction. Subclause (3) amends section 16(4) to set out the matters that must be included in the supporting affidavit for a restraining order application. Paragraph 16(4)(d) provides that the supporting affidavit must state that the police officer or person holds a belief that the person accused of serious drug offences has an interest in the property. Subclause (4) amends section 16(6) to provide that an application for a restraining order, including a serious drug offender restraining order, in relation to property or an interest in property does not preclude another application under section 16 in relation to the same property or interest in property. Subclause (5) amends section 16(7) to provide that an application for a restraining order in relation to a Schedule 1 offence or serious drug offence does not preclude an application for a restraining order in relation to a Schedule 2 offence. Subclause (6) amends section 16(8) to provide that an application for a restraining order in relation to a Schedule 2 offence or serious drug offence does not preclude an application for a restraining order in relation to a Schedule 1 offence in respect of the same property or interest in property. Subclause (7) inserts a new section 16(9) to provide that an application for a serious drug offender restraining order does not preclude an application for a restraining order in relation to a Schedule 1 or Schedule 2 offence in relation to the same property or interest in property. Clause 21 amends sections 17(1), 17(1B) and 17(1C) of the Confiscation Act 1997 to provide that the procedure on application for a restraining order applies to an application for a serious drug offender restraining order. Clause 22 amends section 18 of the Confiscation Act 1997 to provide that the court can make a restraining order if satisfied that the person has been or will be charged within the next 48 hours or convicted of a serious drug offence. 12

 


 

Clause 23 amends section 19D(2)(a) of the Confiscation Act 1997 to provide that if a person given a notice under section 19A is convicted of a serious drug offence the court which convicts the person must direct the person to provide the court with the information that should have been provided in the declaration of property interests. Clause 24 amends section 20(1) of the Confiscation Act 1997, which provides for the making of an application for an exclusion order. Subclause (1) amends section 20(1) to provide that a person claiming an interest in the property other than the accused can make an application for an exclusion order from a serious drug offender restraining order. Subclause (2) amends section 20(3) to provide that a person applying for exclusion is entitled to appear and give evidence at the hearing of an order for exclusion under new section 22A inserted by clause 25. Subclause (3) provides for the stay provisions to apply in relation to the hearing for an application for an exclusion order in respect to a serious drug offender restraining order until, such time as, the serious drug offence is determined or withdrawn. Clause 25 inserts new section 22A in the Confiscation Act 1997 to provide for the determination of an exclusion application under a serious drug offender restraining order. New section 22A(1) provides that the court may make an exclusion order if satisfied of certain matters. These matters are-- · the applicant was not, in any way, involved in the commission of the serious drug offence; and · the applicant's interest in the property was not subject to the effective control of the accused on the date that the accused was charged with the serious drug offence or the serious drug restraining order was made; and · the applicant's interest in the property, if acquired from the accused, was acquired at market value. New section 22A(2) provides that the court may also make an order declaring the nature, extent and value of the applicant's interest in the property. This addresses the situation where the 13

 


 

applicant may have an interest in property, such as being a tenant in common. New section 22A includes a note clarifying that property that may be excluded from a serious drug offence restraining order may continue to be restrained under another restraining order or civil forfeiture restraining order. Clause 26 inserts new section 24 in the Confiscation Act 1997 to provide that a serious drug offence restraining order must not include protected property. New section 24(1) provides that a serious drug offence restraining order must not include property that is protected property. New section 24(2) specifies that the following property of the accused and his or her dependants is protected property-- · property used as the primary means of transport, such as a car; · items of necessary clothing; · ordinary household items, and · tools of the trade. New section 24(3) provides that any item that exceeds the prescribed value for that category of property will not be protected property. The rationale for the inclusion of a prescribed value is to prevent the accused retaining high value luxury items, such as an expensive sports car. The values for each category will be prescribed by regulations. New sections 24(4) and 24(5) provide for the exclusion of protected property from other restraining orders, except where the property is tainted property. Tainted property is property that has a connection with the commission of a Schedule 2 offence, including a serious drug offence. This property is subject to forfeiture under the automatic forfeiture provisions on conviction of a person for a Schedule 2 offence. New section 24(6) inserts definitions of dependant, necessary clothing and ordinary household items. The definition of dependant is any person who resided with the accused for a substantial time immediately prior to the making of the restraining order and who is wholly or substantially dependent on the accused for family support or personal care due to disability, medical condition or old age. The definition of 14

 


 

dependant is intentionally broad to accommodate the diverse range of family relationships and structures that exist in the Victorian community. The definitions of necessary clothing and ordinary household items are by exclusion. Necessary clothing and ordinary household items do not include certain items, which are high value easily liquidated goods, such as antiques, artwork, jewellery and collectible items. Collectible items can include trading cards, memorabilia and Persian rugs. The intention is for the accused person to be able to retain any items of clothing that are necessary given his or her circumstances and ordinary household items, such as a fridge, dryer, and washing machine. The tools of the trade are limited to those used by the accused to earn his or her income. Clause 27 amends section 27 of the Confiscation Act 1997 to provide for the duration and setting aside of a serious drug offender restraining order. Subclauses (1), (3) and (5) amend sections 27(1), 27(3), 27(5) and 27(6) to provide that these sections do not apply to a serious drug offence restraining order. The setting aside and duration of a serious drug offence restraining order are dealt with in new subsections as inserted by this clause. Subclause (2) inserts new section 27(2), which provides that a serious drug offence restraining order made in reliance on a person being charged will be set aside if at the end of the 48 hour period the person has not been charged with a serious drug offence. Subclause (4) inserts new sections 27(3A), 27(3B) and 27(3C) to provide for the duration and setting aside of a serious drug offence restraining order when certain events occur. New section 27(3A) applies to a serious drug offence restraining order made in reliance on the proposed charging or charging of a person with a serious drug offence where the charge is withdrawn. The serious drug offence restraining order will cease to be in effect on the expiry of 7 days after the charge is withdrawn. The 7 day window provides the police with sufficient time to charge the person with other Schedule 2 offences, such as trafficking in a drug of dependence in a commercial quantity. 15

 


 

New section 27(3B) provides for the cessation of a serious drug offence restraining order where a person charged with a serious drug offence is acquitted and there are no further charges for related offences. The serious drug offence restraining order ceases to be in force when the acquittal occurs. New section 27(3C) provides that where a serious drug offence restraining order is made in reliance on the conviction of a person and the conviction is subsequently set aside that the order ceases to be in force on the expiry of the appeal period, unless a new trial has been ordered at the time of setting aside the conviction. This ensures that property is still subject to restraint in the period between the conviction being set aside and the commencement of a new trial. Clause 28 amends section 31D of the Confiscation Act 1997 to provide for an application for a freezing order to be made in relation to a serious drug offence. This will enable an application to be made by a police member to freeze the account of a person suspected on reasonable grounds to be involved in or committed a serious drug offence. Clause 29 inserts Division 4 of Part 3 in the Confiscation Act 1997 to provide for the automatic forfeiture of property of a serious drug offender. New Division 4 (Automatic forfeiture of property of a serious drug offender) applies only to persons declared a serious drug offender under new section 89DI of the Sentencing Act 1991 as inserted by clause 49 of the Bill. New section 36GA provides for the automatic forfeiture of restrained property on declaration that a person is a serious drug offender. Section 36GA(1) provides that property of a person subject to a serious drug offence restraining order is forfeited to the Minister if the court has made a serious drug offender declaration under new section 89DI of the Sentencing Act 1991 inserted by clause 49, and there are no exclusion orders pending under section 22A inserted by clause 25. New section 36GA(2) specifies that where no exclusion application has been made under section 20, restrained property is forfeited to the Minister on the expiry of 60 days after the later of the making of the restraining order or the conviction of the person. 16

 


 

New section 36GA(3) specifies the time periods that will apply to the forfeiture of restrained property to the Minister if a section 20 exclusion application is still pending after the expiration of the 60 day period. New section 36GA(4) specifies that a section 20 exclusion order application is not pending unless the application has been made within the 30 day time period after service of the notice of the making of an ex parte restraining order or the making of the restraining order; or where the court has extended the period before the expiry of the 60 day period in new section 36GA(2). New section 36GB provides that a person may apply to the court for a declaration that property has been forfeited to the Minister under new section 36GA. The court must make the declaration if satisfied that the property has been forfeited under new section 36GA. An applicant for a declaration is not required to give notice to any person as this is simply a declaration that a certain state of affairs exist. Clause 30 amends section 36J of the Confiscation Act 1997 to make clear that property or the same interest in property may be subject to a civil forfeiture restraining order, restraining order and a serious drug offence restraining order. New section 36J(2)(a) provides for the circumstances in which a civil forfeiture restraining order ceases to apply if it applies to the same property or interest as a serious drug offence restraining order. Clause 31 amends sections 41(2)(b), 41(3) and 41(4) of the Confiscation Act 1997 to include property forfeited under new section 36GA inserted by clause 29. Clause 32 amends sections 44(1), 44(2), 44(3) and 44(3A) of the Confiscation Act 1997, which provides for the disposal of forfeited property to include property forfeited under new section 36GA inserted by clause 29. New section 44(3)(ba) specifies the circumstances in which the prohibition against the Minister disposing of or otherwise dealing with the property or authorising another person to dispose of or deal with the property no longer applies. This ensures that the property is not disposed of before the end of the relevant appeal periods. 17

 


 

Clause 33 inserts new section 45A in the Confiscation Act 1997, which provides for the dependants of the serious drug offender to apply for relief from the forfeiture of the serious drug offender's residence. New sections 45A(1) and (2) provides for a dependant of the serious drug offender to make an application for relief from the forfeiture of the serious drug offender's residence. The application must be made within 30 days of the residence being forfeited to the Minister. New section 45A(3) gives the court a discretion to order payment of a prescribed sum from the sale of the proceeds of the forfeited residence if satisfied that the forfeited residence was the principal residence of the dependant, the residence is not tainted or derived property, and the dependants do not have sufficient financial means to secure accommodation. The definition of dependant in new section 45A(7) requires that the dependant lived with the serious drug offender in the forfeited residence for a substantial period of time before the making of the restraining order. New section 45A(3)(b) requires that the forfeited residence is not tainted property or derived property as the overriding purpose of confiscation is to prevent the unjust enrichment of individuals at the expense of the community. The intention of new section 45A is to relieve hardship caused to dependants of the serious drug offender from the forfeiture of legitimate property. New section 45A(3)(c) imposes a means test to restrict eligibility for payment of the prescribed sum. The dependants, individually or collectively, must not have assets or property that is equivalent to or more than the prescribed sum. This recognises that the partner, children or other dependants may have assets of their own sufficient to provide them with accommodation. The intention of the prescribed sum is to prevent homelessness and reliance on social housing not as general compensation for the loss of the forfeited residence. New section 45A(4) recognises that the proceeds from the sale of the forfeited residence may be less than the prescribed sum. In this situation, the dependant will be paid the proceeds from the sale of the forfeited residence. 18

 


 

New section 45A(5) provides that the court may order only one payment from the proceeds of the sale of the forfeited residence. This prevents multiple dependants applying for a payment of the prescribed amount resulting in the dissipation of the proceeds from the sale of the forfeited residence. The sum to be paid from the proceeds of the sale of the forfeited property will be prescribed by regulations. New section 45A(7) defines a defendant for the purpose of this section as any person who resided with the serious drug offender for a substantial period before the making of the restraining order and was wholly or substantially dependent for financial support or personal care due to disability, medical condition or old age on the offender. The definition of dependant accommodates a broad range of family relationships and structures that exist in the community. Clause 34 amends section 47(1) and 47(2) of the Confiscation Act 1997 to provide for the circumstances in which automatic forfeiture in respect of an interest is discharged for the purposes of automatic forfeiture under new section 36GA inserted by clause 29. The circumstances mirror those that currently exist for automatic forfeiture. Clause 35 inserts new sections 53 and 64 in the Confiscation Act 1997 to provide for the making and determination of an application for exclusion from automatic forfeiture of property of a serious drug offender. New section 53 specifies the circumstances in which a person may apply for an exclusion order in respect of property forfeited to the Minister under new section 36GA inserted by clause 29. The circumstances, including time periods and notice requirements, mirror those for an application for exclusion from automatic forfeiture under section 51. New section 64 gives the court the power to exclude property from automatic forfeiture under new section 36GA, if the court is satisfied of certain matters. The court must be satisfied that the applicant was not involved in the commission of the serious drug offence, that the property was not under the effective control of the serious drug offender at the date that charges were laid against the offender or the date the restraining order was made, and that the applicant paid market value for the property if it was acquired directly or indirectly from the serious drug 19

 


 

offender. The court has the power to order exclusion of the applicant's interest in the property, and may declare the nature, extent and value of this interest. Clause 36 amends section 55 of the Confiscation Act 1997 to ensure that a person may apply to the Minister for return of property or payment of property forfeited under Division 4 of Part 3 as inserted by clause 29. Clause 37 amends section 75(2) of the Confiscation Act 1997, which provides for a liability under forfeiture or pecuniary penalty order to be satisfied by a trustee, to apply to automatic forfeiture under new section 36GA inserted by clause 29. Clause 38 amends sections 98(2), 98(2A) and 98(5) of the Confiscation Act 1997, to confer on the court the power to make an examination order in respect of a person charged or convicted of a serious drug offence. Clause 39 amends section 40 of the Confiscation Act 1997 to enable a police member to apply to the court for a production order where he or she believes the person has committed a serious drug offence. Clause 40 amends sections 109(1) and 109(2) of the Confiscation Act 1997, which provides for an application for a search warrant for property tracking documents, to include a serious drug offence. Clause 41 amends paragraph 115(2)(a) of the Confiscation Act 1997, to provide for a monitoring order application to be made where the IBAC Commissioner or police member believes the account holder has committed a serious drug offence. Clause 42 amends paragraph 118D(2)(a) of the Confiscation Act 1997 to provide that an authorised member of the police force may issue an information notice to a financial institution if he or she believes that the account holder has committed or is about to commit a serious drug offence. Clause 43 amends section 131(3) of the Confiscation Act 1997, to provide that a person may apply to the Magistrate's Court for property to be returned or access to be granted to property seized in another State or Territory under a search warrant issued under a corresponding law in reliance on the commission of a serious drug offence. 20

 


 

Clause 44 amends section 134(3) of the Confiscation Act 1997, to provide that all money realised by automatic forfeiture under new section 36GA inserted by clause 29 and that is not required to be paid to a person or body under section 75(1) is to be paid into the Consolidated Fund. Clause 45 amends section 135 of the Confiscation Act 1997, to provide that the definition of conversion costs apply to property subject to automatic forfeiture under new section 36GA inserted by clause 29. Clause 46 amends section 142(1)(b), 142(4) and 142(5)(ba) of the Confiscation Act 1997, to provide that a person who has an interest in property forfeited by automatic forfeiture under new section 36GA or in relation to which an exclusion order has been made or refused under new sections 22A or 54 may appeal against that refusal or order. Clause 47 inserts new section 188 in the Confiscation Act 1997 to provide for the operation and effect of this Bill during the transitional period to the new automatic forfeiture for serious drug offender regime. New section 188 clarifies that the new serious drug offender provisions will only apply to serious drug offences committed after the commencement of the Bill. Subdivision 2--Amendment of Sentencing Act 1991 Clause 48 amends sections 5(2A)(ab) and 5(2A)(e) of the Sentencing Act 1991 to provide that the court must not take the effect of automatic forfeiture of property under Division 4 of Part 3 as inserted by clause 29 into consideration when determining the sentence of a person convicted of a serious drug offence. A sentence is imposed as punishment for committing an offence while confiscation of property is to remedy and deter the unjust enrichment of an individual at the expense of the community and prevent investment in future criminal activity. Clause 49 inserts new Division 5 of Part 4 in the Sentencing Act 1991 to provide for the making of a serious drug offender declaration. New section 89DI requires a court on conviction of a person for a serious drug offence to declare that person a serious drug offender. A serious drug offence has the same meaning as in section 3(1) of Confiscation Act 1997 inserted by clause 17. 21

 


 

Subdivision 3--Amendment of Drugs, Poisons and Controlled Substances Act 1981 Clause 50 inserts a note in section 71 of the Drugs, Poisons and Controlled Substances Act 1981 stating that an offence against this section is a serious drug offence for the purposes of the Confiscation Act 1997. It also provides that on conviction for a serious drug offence the court must make an order under section 89DI of the Sentencing Act 1991 declaring the person to be a serious drug offender. Clause 51 inserts a note in section 72 of the Drugs, Poisons and Controlled Substances Act 1981 stating that an offence against this section is a serious drug offence for the purposes of the Confiscation Act 1997. It also provides that on conviction for a serious drug offence the court must make an order under section 89DI of the Sentencing Act 1991 declaring the person to be a serious drug offender. Clause 52 inserts a note in section 79(1) of the Drugs, Poisons and Controlled Substances Act 1981 stating that where the conspiracy is to commit an offence against section 71 or 72 of Drugs, Poisons and Controlled Substances Act 1981, then the person will have committed a serious drug offence for the purpose of the Confiscation Act 1997. It also provides that on conviction for a serious drug offence the court must make an order under section 89DI of the Sentencing Act 1991 declaring the person to be a serious drug offender. Clause 53 amends sections 80(1) and 80(3) of the Drugs, Poisons and Controlled Substances Act 1981 to include a note stating that an offence against those sections in the specified circumstances is a serious drug offence for the purpose of the Confiscation Act 1997. It also provides that on conviction for a serious drug offence the court must make an order under section 89DI of the Sentencing Act 1991 declaring the person to be a serious drug offender. Division 4--Amendments relating to management of restrained property Division 4 of Part 2 of the Bill amends the Confiscation Act 1997 to allow a court, when making a restraining order or civil forfeiture restraining order, to direct either a specified trustee or a person holding a prescribed position 22

 


 

within the Department of Justice to take control of some or all of the property specified in the order. The positions within the Department of Justice will be prescribed in regulations. Currently the Confiscation Act 1997 only allows a court to direct a specified trustee to take control of some or all of the property specified in the order. The appointment of such a trustee may be necessary where property (such as real property or property that is a business) must be maintained and the owner of the property is restrained from doing so. The appointment of trustees can be costly, and there are officers within the Department of Justice who have the skills and expertise to carry out the function performed by a trustee on a much more cost-efficient basis. These amendments will ensure that in appropriate cases officers of the Department of Justice can be appointed to control property rather than a specified trustee. Clause 54 amends section 14(3) of the Confiscation Act 1997 to provide that, when making a restraining order, a court may direct either a specified trustee or a person holding a prescribed position within the Department of Justice to take control of some or all of the property specified in the order. Currently section 14(3) allows only the appointment of a specified trustee to take control of property subject to a restraining order. Clause 55 amends paragraphs 26(5)(ga) and 26(5)(h) of the Confiscation Act 1997 to replace references to "a trustee" in those paragraphs with references to "a trustee or a person holding a prescribed position referred to in section 14(3)". Clause 56 amends section 36H(3) of the Confiscation Act 1997 to provide that, when making a civil forfeiture restraining order, a court may direct either a specified trustee or a person holding a prescribed position within the Department of Justice to take control of some or all of the property specified in the order. Currently section 36H(3) allows only the appointment of a specified trustee to take control of property subject to a civil forfeiture restraining order. Clause 57 amends paragraphs 36W(6)(h) and 36W(6)(b) of the Confiscation Act 1997 to replace references to "a trustee" in those paragraphs with references to "a trustee or a person holding a prescribed position referred to in section 36H(3)". 23

 


 

Clause 58 inserts new section 75(3) into the Confiscation Act 1997 which will provide that references to a trustee within section 75 are read as references to a person holding a prescribed position referred to in section 14(3) or 36H(3) if the court has directed such a person to take control of property. Clause 59 inserts new section 76(8) into the Confiscation Act 1997 which will provide that references to a trustee within section 76 are read as references to a person holding a prescribed position referred to in section 14(3) or 36H(3) if the court has directed such a person to take control of property. PART 3--CRIMINAL ORGANISATIONS CONTROL Part 3 of the Bill amends the Criminal Organisations Control Act 2012 to create two categories of declarations that may apply to organisations, modify the circumstances in which a declaration or control order may be made, make further provision in relation to former members of declared organisations, and provide that parties will generally bear their own costs in proceedings under the Act. Part 3 also amends the Firearms Act 1996, Fortification Removal Act 2013 and the Major Crime (Investigative Powers) Act 2004 to improve the effectiveness of those schemes as well as declarations and control orders made under the Criminal Organisations Control Act 2012. Division 1--Amendment of Criminal Organisations Control Act 2012 Clause 60 amends three definitions currently set out in section 3 of the Criminal Organisations Control Act 2012 and inserts two new definitions. The changes include-- · expanding the definition of applicable offence from that currently provided in section 4 of the Act by lowering the threshold for indictable offences from those punishable by at least 10 years imprisonment to those punishable by at least 5 years imprisonment, and removing the additional criteria currently set out in section 4(1) of the Act; and · amending the definition of related organisation to mean an organisation specified in an application in accordance with section 15(1)(ba) on which the Court has made a declaration that applies to an individual; and 24

 


 

· inserting a new definition of prohibitive declaration, which is described in section 19(2) as a declaration made under section 19(1)(a), on the basis of the matters set out in section 19(2); and · inserting a new definition of restrictive declaration, which is described in section 19(2A) as a declaration made under section 19(1)(a), on the basis of the matters set out under section 19(2A). Clause 61 repeals section 4 of the Criminal Organisations Control Act 2012. A replacement definition of applicable offence is inserted in section 3 by clause 60 of the Bill. Clause 62 amends the definition of prospective member currently set out in section 8 of the Criminal Organisations Control Act 2012. Section 8(2)(c) currently provides that a prospective member includes an individual "who wears" certain patches, insignia or identifiers. That paragraph will now also refer to an individual who displays such patches, insignia or identifiers. This amendment ensures the language used in section 8 is consistent with that used in sections 45(2)(d) and 47(2)(e) and (3)(e) of the Act. Clause 63 amends section 15 of the Criminal Organisations Control Act, which sets out the required form and contents for applications for declarations. Subclause (1) provides that an application in respect of an individual must identify the organisation that-- · the individual is a member, former member or prospective member of; and · is being used for a criminal purpose in accordance with section 19(3)(b). Subclause (2) provides that an application for a declaration in respect of an organisation does not need to state whether a prohibitive declaration or a restrictive declaration is sought. It is intended that when the application is being heard, the Supreme Court would first consider whether or not to make a prohibitive declaration. If it does not make a prohibitive declaration, the Court would then consider whether to make a restrictive declaration. 25

 


 

Subclause (3) makes minor changes to the language in section 15(2) of the Act to reflect that organisations now need to be identified in applications relating to individuals. Clause 64 corrects a section reference in section 17(2)(b) of the Criminal Organisations Control Act 2012. Clause 65 amends the circumstances in which the Supreme Court may make a declaration under the Criminal Organisations Control Act 2012. Subclause (1) inserts new provisions that set out the circumstances in which a declaration may be made in relation to an organisation. New section 19(2) of the Act provides that the Supreme Court may make a prohibitive declaration if it is-- · satisfied, beyond reasonable doubt, that the matters set out in section 19(2B) apply to the organisation; and · satisfied, on the balance of probabilities, that the activities of the organisation pose a serious threat to public safety and order. New section 19(2A) then sets out the circumstances when the Supreme Court may make a restrictive declaration. The Court may do so if it is satisfied on the balance of probabilities that-- · the matters set out in section 29(2B) apply to the organisation; and · the activities of the organisation pose a serious threat to public safety and order. The matters set out in section (2B) are that-- · the organisation has engaged in, organised, facilitated or supported serious criminal activity or is engaging in organising, facilitating or supporting serious criminal activity; or · any 2 or more members, former members or prospective members of the organisation have used or are using the organisation, or their relationship with that organisation or its members, former members or prospective members, for a criminal purpose; or 26

 


 

· any 2 or more members or prospective members of the organisation are also members, former members or prospective members of an organisation to which a control order applies; or · control orders apply to any 2 or more members or prospective members of the organisation. New section 19(2C) provides that the Court may also make a prohibitive declaration or a restrictive declaration if the organisation gives its consent to the declaration being made. Subclause (2) makes two changes to section 19(3) of the Act. The first change expressly provides that the Court must be satisfied on the balance of probabilities of the matters set out in sections 19(3)(a), (b) and (c). The second change is to the language used in section 19(3)(a) of the Act. That provision now requires that the Court be satisfied that the individual (being the subject of an application for a control order) is a member, former member or prospective member of the organisation identified in the application for the declaration. This change reflects the fact that clause 63(1) of the Bill amends section 15(1) of the Act to require that an application for a declaration in relation to an individual specify the name of the related organisation for the purposes of sections 19(3)(a) and (b). Subclause (3) provides that the Court may also make a declaration against an individual if that individual consents. Subclauses (4), (5) and (6) make minor amendments to sections 19(4), (5) and (6) of the Act. Those amendments include changing section references in those provisions to reflect the changes in subclauses (1) to (3). They also amend a reference to an individual wearing certain patches, insignia or identifiers. That reference will now also refer to an individual who displays such patches, insignia or identifiers. Subclause (7) provides, for the avoidance of doubt, that in making a declaration by consent in accordance with new sections 19(2C) or (3A), the Court is not required to consider the matters set out in sections 19(2), (2A) and (3). 27

 


 

Clause 66 substitutes a new provision for section 21 of the Criminal Organisations Control Act 2012. The new section provides that the Supreme Court must disregard any objection made under section 17 in making a declaration if the respondent gives consent to the declaration being made. This removes any doubt about the Court's ability to make a declaration against an organisation with that organisation's consent even where a member of the organisation or another person, whose interests may be affected by the determination of the application, has lodged an objection under section 17. Clause 67 requires that a declaration made by the Supreme Court must specify, if it applies to an organisation, whether it is a prohibitive declaration or a restrictive declaration. Clause 68 changes a section reference in section 24(1) of the Criminal Organisations Control Act 2012. This change reflects that the amendments made by this Bill will mean that both section 29 and new section 29A provide for the determination of an application for the revocation of a declaration. Clause 69 amends section 27(3) of the Criminal Organisations Control Act 2012 to provide that the Supreme Court may grant leave to a declared organisation or a declared individual to apply for the revocation of a declaration if-- · the Chief Commissioner files with the Court a signed notice stating that he or she supports the granting of leave; or · the Court is satisfied that there has been a substantial change in circumstances since the declaration that applies to the organisation or individual was made. Clause 70 replaces section 29 of the Criminal Organisations Control Act 2012 with a new provision that sets out when the Supreme Court may revoke a declaration in respect of an organisation. The Court may revoke a prohibitive declaration made on the basis that the Court was satisfied of the matters set out in section 19(2) if it is-- · no longer satisfied beyond reasonable doubt that the matters set out in section 19(2B) apply to the declared organisation; or 28

 


 

· no longer satisfied on the balance of probabilities that the activities of the declared organisation pose a serious threat to public safety and order. The Court may revoke a restrictive declaration made on the basis that the Court was satisfied of the matters set out in section 19(2) if the Court is no longer satisfied on the balance of probabilities that both-- · the matters set out in section 19(2B) apply to the declared organisation; and · the activities of the declared organisation pose a serious threat to public safety and order. By contrast, sections 29(4) and (5) set out the circumstances in which the Court may revoke a prohibitive or restrictive declaration made by consent under section 19(2C). The respective tests are much the same as those under sections 29(2) and (3). However, the wording of those provisions is different, taking into account the fact the Court will not have previously considered the matters set out in sections 19(2) and (2A) where the declaration was made by consent. In each of the processes under sections 29(2) to (5), the applicant will bear the legal onus in respect of the various limbs of the tests. The new section also provides that a declaration may be revoked with the consent of the respondent. This power operates independently of sections 29(2) to (5). Consequently, when exercising its power under section 29(6), the Court is not required to consider the matters set out in those sections. Clause 71 inserts a new section 29A into the Criminal Organisations Control Act 2012, which sets out when the Supreme Court may revoke a declaration in respect of an individual. The Court may revoke a declaration that was made on the basis that the Court was satisfied of the matters set out in section 19(3) if the Court is no longer satisfied of those matters on the balance of probabilities. Where the declaration was made by consent, the Court may only revoke a declaration in respect of an individual when the Court is not satisfied on the balance of probabilities of the 29

 


 

matters set out in section 19(3). As with sections 29(4) and (5), the different wording reflects the fact the Court will not have previously considered the matters set out in section 19(3) where the declaration was made by consent. The Court may also revoke a declaration if the respondent consents. This power operates independently of sections 29A(2) and (3). Consequently, when exercising its power under section 29A(4), the Court is not required to consider the matters set out in those sections. Clause 72 amends section references in section 30(1) of the Criminal Organisations Control Act 2012 to reflect the new location of the provisions setting out when the Supreme Court may revoke a declaration. Clause 73 amends the circumstances in which the Supreme Court may make a control order that applies under section 43 of the Criminal Organisations Control Act 2012. Under new section 43(1), the Court may make a declaration that applies to a declared organisation where satisfied that-- · if the declaration which applies to the organisation is a prohibitive declaration, the making of the control order is likely to contribute to the purpose of preventing or disrupting serious criminal activity by the organisation or any members, former members or prospective members of the organisation; or · if the declaration which applies to the organisation is a restrictive declaration, it is necessary or desirable to restrict, or to impose conditions on, the activities of the organisation or any members, former members or prospective members of the organisation in order to end, prevent or reduce a serious threat to public safety and order. Subclause (2) inserts a new section 43(1A). New section 43(1A) provides that the Court may also make a control order that applies to an organisation if the organisation is a declared organisation and gives its consent to the control order being made. Subclause (3) substitutes section 43(2). New section 43(2) provides that the Court may make a control order that applies to an individual if the Court is satisfied that an individual is a 30

 


 

member, former member or prospective member of an organisation that is subject to a declaration and either-- · if the declaration is a prohibitive declaration, the making of the control order is likely to contribute to the purpose of preventing or disrupting serious criminal activity by the individual or any other person that is being or may be facilitated by the individual; or · if the declaration is a restrictive declaration, it is necessary or desirable to restrict, or to impose conditions on, the activities of the individual in order to end, prevent or reduce a serious threat to public safety and order. A separate test applies to declared individuals under new section 43(2A). This new provision enables a Court to make a control order if the individual is a declared individual and the Court is satisfied that it is necessary or desirable to restrict, or to impose conditions on, the activities of the individual in order to end, prevent or reduce a serious threat to public safety and order. New section 43(2B) provides that the Court may also make a control order that applies to an individual where the individual consents. New section 43(5) of the Act provides, for the avoidance of doubt, that in making a control order by consent, the Court is not required to consider the matters set out in subsections (1), (2) and (2A). Clause 74 amends section 45 of the Criminal Organisations Control Act 2012 by changing the types of conditions that may be included in a control order that applies to an organisation. Subclauses (1)(a) and (2) provide that the Supreme Court may only include a condition that prohibits the organisation from continuing to operate, carry on a business or take on new members as part of a control order if the declaration applying to the organisation is a prohibitive declaration. Subclause (1)(b) amends section 45(2)(b) to enable a Court to impose a condition in a control order to prohibit certain members, former members or prospective members of the declared organisation (or certain classes of members, former members or prospective members) from participating in the activities of the organisation. This condition may be applied to 31

 


 

a declared organisation regardless of whether the declaration is a prohibitive declaration or a restrictive declaration. Therefore, the changes enable such a condition to be imposed without having the same effect as a condition that prohibits the organisation from continuing to operate or carry on business. Subclause (1)(c) inserts a missing comma. Subclause (3) inserts new section 45(4) and (5). New section 45(4) provides that for the purposes of a condition imposed under section 45(2)(b) or (d), a person who was a member of a declared organisation on the day of the initial application, but who has since become a former member of that organisation, is taken to be both a member and a former member. New section 45(5) defines the following terms for the purposes of section 45-- · carrying out of an activity does not include being or becoming a party to a proceeding (including an appeal); and · day of the initial application means the day on which the Chief Commissioner applied for the declaration that applies to the organisation. Clause 75 replaces a description of a type of condition with a reference to the new provision under which that type of condition is now imposed. Clause 76 inserts a new section 51A into the Criminal Organisations Control Act 2012. The section is similar to new section 21 inserted by clause 66 and provides that the Supreme Court must disregard any objection made under section 41 in making a control order if the respondent gives consent to the control order being made. Clause 77 amends section 52(b) to require that a control order made by the Supreme Court must specify, in the case of an individual-- · if the control order was made on the basis that the Court was satisfied of the matters set out in section 43(2), the declared organisation; or · if the control order was made on the basis that the Court was satisfied of the matters set out in section 43(2A), the related organisation; or 32

 


 

· if the control order was made by consent in accordance with section 43(2B), whether the order was made on the basis of section 43(2B), whether the order was made on the basis of section 43(2B)(a)(i) or (ii), and the declared organisation or related organisation (as the case requires). Clause 78 amends the notice requirements upon the making of a control order that applies to an organisation under section 55 of the Criminal Organisations Control Act 2012. The amended procedure adds to the current requirements by providing that the Chief Commissioner must cause notice of the making of a control order that applies to a declared organisation to be affixed to or near an appropriate place. This requirement is currently set out in regulation 9 of the Criminal Organisations Control Regulations 2013 but will be shifted to the Act. Subclause (2) provides that the notice must be affixed in the same timeframe that notice is currently required to be published in the Government Gazette and a newspaper, no later than 7 days after the control order is made. Subclause (3) provides that the notice must be in the form prescribed by the Regulations. Clause 79 amends section 56(3) of the Criminal Organisations Control Act 2012 to provide that the Supreme Court may grant leave to a declared organisation to which, or an individual to whom, a control order or ancillary order applies for the revocation of the control order or ancillary order if-- · the Chief Commissioner files with the Court a notice stating that he or she supports the granting of leave; or · the Court is satisfied that there has been a substantial change in circumstances since the control order or ancillary order that applies to the declared organisation or individual was made. Clause 80 replaces section 58 of the Criminal Organisations Control Act 2012 with a new provision that sets out when the Supreme Court may vary or revoke a control order. The Court may vary a control order if it considers that there has been a substantial change in circumstances since the order was made or where the respondent consents to the variation. 33

 


 

The Court may revoke a control order in respect of an organisation that was made on the basis that the Court was satisfied of the matters set out in section 43(1), (2) or (2A) if the Court is no longer satisfied of those matters. The Court may also revoke a control order in respect of an organisation that was made by consent in accordance with section 43(1A) if the Court is not satisfied of the matters set out in section 43(1). Similarly, the court may revoke a control order in respect of an individual that was made by consent in accordance with section 43(2B) if-- · in the case of a control order that was made on the basis of section 43(2B)(a)(i), the Court is not satisfied of the matters set out in section 43(2); or · in the case of a control order that was made on the basis of section 43(2B)(a)(ii), either the individual is no longer a declared individual, or the Court is not satisfied of the matters set out in section 43(2A)(b). The Court may also revoke a control order with the consent of the respondent. This power operates independently of sections 58(2) to (5). Consequently, when exercising its power under section 58(6), the Court is not required to consider the matters set out in those sections. Clause 81 inserts a new section 58A into the Criminal Organisations Control Act 2012. The new section sets out when the Supreme Court may vary or revoke an ancillary order. Those requirements are currently set out in section 58 but will be shifted to this stand-alone provision. The Supreme Court may vary an ancillary order if-- · the Court consider there has been a substantial change in circumstances since the order was made; or · the respondent consents to the variation. Similarly, the Court may revoke an ancillary order if-- · the Court is satisfied that the basis on which the order was made no longer exists; or · the respondent consents to the revocation. 34

 


 

Clause 82 inserts a new section reference into section 96. This has the effect of ensuring that a registered corresponding declaration that is in effect operates in this State for the purposes of sections 43(2) and (2B) as if it were a restrictive declaration made under Part 2. Clause 83 provides that each entry for a declaration that applies to an organisation on the register maintained by the Chief Commissioner must include whether the declaration is a prohibitive declaration or a restrictive declaration. Clause 84 provides that the Annual Report required to be prepared by the Chief Commissioner under section 133 of the Criminal Organisations Control Act 2012 must specify the number of-- · prohibitive declarations that were in effect on the last day of that financial year; and · the number of restrictive declarations in effect on the last day of that financial year. Clause 85 inserts three new provisions in the Criminal Organisations Control Act 2012. New section 135A sets out the requirements for giving consent in accordance with sections 19(2C) and (3A), 21, 29(6), 29A(4), 43(1A)(b) and (2B)(b), 51A, 58(2)(b) and (6), and 58A(2)(b) and (3)(b). The manner for consent differs according to whether it is given by an individual, company or registered foreign company, incorporated association, or unincorporated association. New section 135B provides that all parties to an application referred to in section 9(1) (including a third party person who, under section 17 or 41 makes an objection to the application) must bear their own costs. Nevertheless, the Supreme Court may award costs against a party if the person has-- · made an application or objection that the Court considers frivolous or vexatious; or · by an unreasonable act or omission caused the other person to incur costs in relation to the application or objection. 35

 


 

To avoid any doubt, section 135B(3) provides that each member of an unincorporated body or association is jointly and severally liable for any costs awarded against the body or association. New section 135C provides that where the Supreme Court may adjourn proceedings where it decides that there are grounds to award costs against a person but neither that person nor the person's legal representative (if any) is present. Notice may then be given to the person that an order for costs will be made at the next hearing unless the person contests the making of the order at that hearing. For the purposes of the section, an organisation is deemed to be present at a hearing if an office holder of the organisation is present at the hearing. Clause 86 amends the Schedule to the Criminal Organisations Control Act 2012 by removing references to offences that are now captured by the expanded definition of applicable offence. The clause also includes several minor statute law revisions to how some of those offences that remain included in the schedule are referred to. Division 2--Amendment of Firearms Act 1996 Clause 87 amends the definition of prohibited person in section 3 of the Firearms Act 1996 by providing that the definition includes-- · a declared individual within the meaning of the Criminal Organisations Control Act 2012; and · a person to whom a control order (within the meaning of the Criminal Organisations Control Act 2012) applies. Subclause (2) also inserts a new definition of declared organisation member into the Act. A declared organisation member is a member, former member, or prospective member of an organisation subject to a declaration made under the Criminal Organisations Control Act 2012. Clause 88 amends section 17 of the Firearms Act 1996 to provide a rebuttable presumption that a person who is a declared organisation member is not a "fit and proper person" for the purposes of the Chief Commissioner of Police deciding whether to issue that person with a longarm or handgun licence. 36

 


 

Section 17 of the Act provides that a longarm or handgun licence must not be issued to a person unless the Chief Commissioner of Police is satisfied that person is a "fit and proper person". This clause will amend section 17 to provide that persons who are declared organisation members are presumed not to be "fit and proper persons". The amendment provides that this presumption may be rebutted. Clause 89 amends section 20 of the Firearms Act 1996 to provide a rebuttable presumption that a person who is a declared organisation member is not a "fit and proper person" for the purposes of the Chief Commissioner of Police deciding whether to issue that person with a junior licence. Section 20 of the Act provides that a junior licence must not be issued to a person unless the Chief Commissioner of Police is satisfied that person is a "fit and proper person". This clause will amend section 20 to provide that persons who are declared organisation members are presumed not to be "fit and proper persons". The amendment provides that this presumption may be rebutted. Clause 90 amends section 23 of the Firearms Act 1996 to provide a rebuttable presumption that a person who is a declared organisation member is not a "fit and proper person" for the purposes of the Chief Commissioner of Police deciding whether to issue that person with a firearms collectors licence. Section 23 of the Act provides that a firearms collectors licence must not be issued to a person unless the Chief Commissioner of Police is satisfied that person is a "fit and proper person". This clause will amend section 23 to provide that persons who are declared organisation members are presumed not to be "fit and proper persons". The amendment provides that this presumption may be rebutted. Clause 91 amends section 27 of the Firearms Act 1996 to provide a rebuttable presumption that a person who is a declared organisation member is not a "fit and proper person" for the purposes of the Chief Commissioner of Police deciding whether to issue that person with a firearms heirlooms licence. Section 27 of the Act provides that a firearms heirlooms licence must not be issued to a person unless the Chief Commissioner of Police is satisfied that person is a "fit and proper person". 37

 


 

This clause will amend section 27 to provide that persons who are declared organisation members are presumed not to be "fit and proper persons". The amendment provides that this presumption may be rebutted. Clause 92 amends section 29 of the Firearms Act 1996 to provide a rebuttable presumption that a person who is a declared organisation member is not a "fit and proper person" for the purposes of the Chief Commissioner of Police deciding whether to issue that person with a firearms ammunition collectors licence. Section 29 of the Act provides that a firearms ammunition collectors licence must not be issued to a person unless the Chief Commissioner of Police is satisfied that person is a "fit and proper person". This clause will amend section 29 to provide that persons who are declared organisation members are presumed not to be "fit and proper persons". The amendment provides that this presumption may be rebutted. Clause 93 amends subsection 34(2) of the Firearms Act 1996 to ensure a reference to section 17(1)(c)(ia) remains correct following the amendments contained in this Bill. Clause 94 amends section 42 of the Firearms Act 1996 to provide a rebuttable presumption that a person who is a declared organisation member is not a "fit and proper person" for the purposes of the Chief Commissioner of Police deciding whether to renew a licence issued under Part 2. Section 42 of the Act provides that a licence must not be renewed unless the Chief Commissioner of Police is satisfied that the person seeking the renewal a "fit and proper person". This clause will amend section 42 to provide that persons who are declared organisation members are presumed not to be "fit and proper persons". The amendment provides that this presumption may be rebutted. Clause 95 amends section 49 of the Firearms Act 1996 to provide a rebuttable presumption that a person who is a declared organisation member is not a "fit and proper person" for the purposes of the Chief Commissioner of Police deciding whether to cancel a licence that has been suspended. 38

 


 

Section 49 of the Act provides that the Chief Commissioner cancel a licence that has been suspended if the holder of the licence ceases to be a "fit and proper person". This clause will amend section 49 to provide that persons who are declared organisation members are presumed not to be "fit and proper persons". The amendment provides that this presumption may be rebutted. Clause 96 amends section 58A of the Firearms Act 1996 to provide a rebuttable presumption that a person who is a declared organisation member is not a "fit and proper person" for the purposes of the Chief Commissioner of Police deciding whether to grant a provisional general category handgun licence. Section 58A of the Act provides that a provisional general category handgun licence must not be issued to a person unless the Chief Commissioner of Police is satisfied that person is a "fit and proper person". This clause will amend section 58A to provide that persons who are declared organisation members are presumed not to be "fit and proper persons". The amendment provides that this presumption may be rebutted. Clause 97 amends section 61 of the Firearms Act 1996 to provide a rebuttable presumption that a person who is a declared organisation member is not a "fit and proper person" for the purposes of the Chief Commissioner of Police deciding whether to issue a dealers licence. Section 61 of the Act provides that a dealers licence must not be issued to a person unless the Chief Commissioner of Police is satisfied that person is a "fit and proper person". This clause will amend section 61 to provide that persons who are declared organisation members are presumed not to be "fit and proper persons". The amendment provides that this presumption may be rebutted. Clause 98 amends section 73 of the Firearms Act 1996 to provide a rebuttable presumption that a person who is a declared organisation member is not a "fit and proper person" for the purposes of the Chief Commissioner of Police deciding whether to renew a dealers licence. Section 73 of the Act provides that a dealers licence must not be renewed unless the Chief Commissioner of Police is satisfied that person seeking the renewal, and other persons specified in 39

 


 

the provision, are all "fit and proper persons". This clause will amend section 73 to provide that persons who are declared organisation members are presumed not to be "fit and proper persons". The amendment provides that this presumption may be rebutted. Clause 99 amends section 79 of the Firearms Act 1996 to provide a rebuttable presumption that a person who is a declared organisation member is not a "fit and proper person" for the purposes of the Chief Commissioner of Police deciding whether to cancel a suspended dealers licence. Section 79 of the Act provides that the Chief Commissioner may cancel a suspended dealers licence if the Chief Commissioner is satisfied that the holder of the licence, or another person specified in the provision, ceases to be a "fit and proper person". This clause will amend section 79 to provide that persons who are declared organisation members are presumed not to be "fit and proper persons" for the purposes of this section. The amendment provides that this presumption may be rebutted. Clause 100 amends section 104 of the Firearms Act 1996 to provide a rebuttable presumption that a person who is a declared organisation member is not a "fit and proper person" for the purposes of the Chief Commissioner of Police deciding whether to issue a permit to acquire a firearm. Section 104 of the Act provides that a permit to acquire must not be issued to a person unless the Chief Commissioner of Police is satisfied that the applicant, and other specified persons, are all "fit and proper persons". This clause will amend section 104 to provide that persons who are declared organisation members are presumed not to be "fit and proper persons". The amendment provides that this presumption may be rebutted. Clause 101 amends section 121A of the Firearms Act 1996 to provide a rebuttable presumption that a person who is a declared organisation member is not a "fit and proper person" for the purposes of the Chief Commissioner of Police deciding whether to grant a permit to store handguns. Section 121A of the Act provides that a permit to store handguns must not be granted to a person unless the Chief 40

 


 

Commissioner of Police is satisfied that person is a "fit and proper person". This clause will amend section 121A to provide that persons who are declared organisation members are presumed not to be "fit and proper persons". The amendment provides that this presumption may be rebutted. Clause 102 amends section 176 of the Firearms Act 1996 to ensure a reference to section 17(1)(c)(ia) remains correct following the amendments contained in this Bill. Division 3--Amendment of Fortification Removal Act 2013 Clause 103 amends the definition of specified offence contained in section 3 of the Fortification Removal Act 2013. Under that Act, an order to remove fortifications from premises can be sought where those fortifications are used for the commission of a specified offence, to conceal evidence of a specified offence, or to keep the proceeds of a specified offence. The Act also prohibits the construction of fortifications to be used for such a purpose. Currently a specified offence is defined to include all indictable offences punishable by at least 10 years imprisonment and other offences specified in the Schedule to the Act (and the offences of conspiracy, incitement and attempt in relation to these offences). This clause will amend this definition to include all indictable offences punishable by at least 5 years imprisonment and other offences specified in the Schedule (and the offences of conspiracy, incitement and attempt in relation to these offences). Clause 104 amends the Schedule to the Fortification Removal Act 2013. This Schedule contains a list of offences that, due to their inclusion in this Schedule, are considered to fall within the definition of specified offence. The above amendment will amend the definition of specified offence to automatically include all offences punishable by at least five years imprisonment. As a result of this amendment, it is no longer necessary to list in the Schedule any offence punishable by at least five years imprisonment. This clause will remove such offences from the Schedule. 41

 


 

This clause also adds a note to the Schedule to clarify that the definition of specified offence includes the offences of conspiracy, incitement and attempt in relation to the offences found in the Schedule. Division 4--Amendment of Major Crime (Investigative Powers) Act 2004 Clause 105 amends section 3 of the Major Crime (Investigative Powers) Act 2004 to replace the definition of organised crime offence contained in that section with a reference to new section 3AA which will now contain this definition. This clause also inserts definitions of the terms declared individual and declared organisation member, which have the same meaning as they have in the Criminal Organisations Control Act 2012. Clause 106 inserts new section 3AA into the Major Crime (Investigative Powers) Act 2004, which defines the term organised crime offence for the purposes of the Act. The Act provides that the Supreme Court of Victoria can authorise the use of certain coercive powers for the investigation of an organised crime offence. The Act currently provides that an offence will be considered an organised crime offence if it meets all of the following criteria-- · is punishable by level 5 imprisonment (10 years maximum) or more; · involves 2 or more offenders; · involves substantial planning and organisation; · forms part of systemic and continuing criminal activity; · has a purpose of obtaining profit, gain, power or influence or of sexual gratification where the victim is a child. The amended definition inserted by this clause will provide that an offence is also an organised crime offence if it meets the first two of these criteria (punishable by level 5 imprisonment and involves 2 or more offenders), and if 2 or more of the offenders are, at any time, declared individuals or declared organisation members. 42

 


 

An offence that meets the current definition of organised crime offence will also continue to do so under this new definition. Clause 107 amends section 5 of the Major Crime (Investigative Powers) Act 2004, which deals with how an application is made for a coercive powers order to investigate an organised crime offence. This amendment will provide that a member of the police force may only apply for a coercive powers order to investigate an offence, which is considered to be an organised crime offence because declared individuals or declared organisation members were involved, if at least 2 such offenders are declared individuals or declared organisation members at the time the application is made. PART 4--CRIMINAL PROCEDURE Division 1--Amendment of Criminal Procedure Act 2009 relating to committal proceedings Clause 108 amends the contents required in a case direction notice. Subclause (1) amends section 119(c) of the Criminal Procedure Act 2009 to provide that for each witness the accused intends to seek leave to cross-examine, the case direction notice must state-- · each issue the accused seeks leave to cross-examine that witness about; · the relevance of the witness's evidence to each issue; and · the reason why cross-examination on each issue is justified. This change is necessary because of the changes introduced by clauses 109 and 111 of this Bill. Subclause (1) also inserts two notes which cross-refer to new sections 124(6) and 132A of the Criminal Procedure Act 2009. These notes make clear that the court may grant leave to cross-examine a person on one or more issues at the committal mention, and if leave to cross-examine a witness is granted at the committal mention, the accused may apply to cross-examine the witness on other issues during the committal hearing. 43

 


 

Subclause (2) amends section 119(d) to provide that the informant must state on the case direction notice whether he or she opposes or consents to leave being granted to cross-examine a witness for each issue specified by the accused, and where leave is opposed, the reasons why. Under section 119(g), the DPP, rather than the informant, must sign the case direction notice, if the DPP is conducting the prosecution. Clause 109 amends section 124 of the Criminal Procedure Act 2009 to change the procedure for the Magistrates' Court granting leave to cross-examine a witness. Subclause (1) amends section 124(2) to provide that the Magistrates' Court may have regard to the informant's consent or opposition to the granting of leave in determining the question of leave. This changes the existing requirement that the magistrate must grant leave to cross-examine a witness where the informant consents, unless it is inappropriate to do so. Under the new requirements, the views of the informant are one consideration that the court may take into account in determining the question of leave. Subclause (2) amends section 124(3) so that the Magistrates' Court must not grant leave to cross-examine a witness unless the accused has identified an issue for cross-examination, demonstrated its relevance, and cross-examination of the witness on that issue is justified. This will mean that the informant's opposition to leave is no longer a trigger for this test. Instead, it will apply to each application for leave to cross- examine a witness. Subclause (3) inserts two notes at the foot of section 124(4) that cross-refer to sections 102 and 103(1) of the Evidence Act 2008. The notes highlight that the credibility rule applies to committal proceedings. This will mean that an accused must not be granted leave to cross-examine a witness about the witness's credibility, unless evidence adduced in cross- examination could substantially affect the assessment of the credibility of the witness. Subclause (4) inserts new section 124(6). New section 124(6) provides that if the Magistrates' Court grants leave to an accused to cross-examine a witness, it must identify each issue with respect to which the witness may be cross-examined. It is essential that the court identifies the issues on which leave to 44

 


 

cross-examine has been granted as the amendments in clause 110 of this Bill provide that cross-examination is limited to issues where leave to cross-examine has been granted by the court. Clause 110 amends the questioning requirements during cross-examination in a committal hearing. Subclause (1) substitutes current section 132(1) with a new section 132(1) in the Criminal Procedure Act 2009 to limit cross-examination of a witness during a committal hearing to each issue for which leave has been obtained by the accused. This includes the issues identified at the committal mention, in accordance with new section 124(6), as well as any issues for which the accused has obtained leave during the committal hearing in accordance with new section 132A. Subclause (2) substitutes paragraph (a) of subsection 132(2) to allow the Magistrates' Court to disallow questions in a committal hearing that do not relate to an issue for which leave has been obtained under section 124 or new section 132A. This will change procedures for cross-examination at a committal proceeding. Currently, it is sufficient if the accused obtains leave to cross-examine a witness on one issue; the accused may then cross-examine the witness at the committal hearing on other issues without first needing leave from the court. At any time during that cross-examination, the court may ask the accused to indicate why cross-examination on an issue is relevant and justified. The amendments do not change the threshold involved with this test. Instead, the Bill changes when this test is applied, namely to before cross-examination of a witness on a particular issue. Clause 111 inserts new section 132A in the Criminal Procedure Act 2009 to provide the Magistrates' Court with the power to grant leave, for the accused to question a witness about different issues, during the committal hearing. New subsection 132A(1) provides that the section only applies to witnesses that the accused received leave to cross-examine under section 124. New subsection 132A(2) provides that leave to cross-examine a witness on an issue not previously identified under section 124(6) may be granted during the committal hearing. This will 45

 


 

mean that the accused could seek leave to cross-examine a witness on an issue at the committal mention, and then where leave is granted, seek leave to cross-examine the same witness about other issues during the committal hearing. New subsections 132A(3), (4) and (5) replicate the test for leave to cross-examine a witness as set out in section 124. Accordingly, the Magistrates' Court will apply the same test to determine whether to grant leave to cross-examine a witness on an issue, at both the committal mention and the committal hearing. Division 2--Other Amendments to Criminal Procedure Act 2009 Clause 112 inserts a definition for traffic camera offence into section 3 of the Criminal Procedure Act 2009. This definition is modelled on section 53A(3) and includes speed, red light and tollway offences that are detected by cameras and similar devices. Clause 113 amends section 17 of the Criminal Procedure Act 2009 to provide that the service provisions in this section no longer apply to traffic camera offences. Subclause (2) amends section 17(3) to address an error in the cross-reference to section 394 of the Criminal Procedure Act 2009. The cross-reference should be to section 394(1)(a), not 394(a), as section 394 has a subsection (1). Clause 114 inserts a new section 17A in the Criminal Procedure Act 2009 to provide service provisions for a summons for a traffic camera offence. New subsection 17A(1) provides that a summons for a traffic camera offence may be served personally on the accused or served by ordinary service. This removes the requirement that an informant consider whether ordinary service is an appropriate method for service of a summons in the circumstances of each particular case where the summons involves only traffic camera offences. New subsection 17A(2) provides that evidence of service where ordinary service is used for service of a summons in a traffic camera offence, and service is effected by sending a copy of the document by prepaid ordinary post addressed to the person to be served, must state how the informant ascertained the address for service and the time and place of posting. 46

 


 

Clause 115 amends section 39(1A)(a) of the Criminal Procedure Act 2009, by substituting 7 days with 21 days, to provide consistency with-- · the timing for service of the preliminary brief (see section 24 of the Criminal Procedure Act 2009), and · when a summary case conference must be conducted (see section 54(2) of the Criminal Procedure Act 2009). If a preliminary brief is served within 21 days after the charge- sheet is filed, a full brief may only be requested after a summary case conference is held. The purpose of a summary case conference is to manage the progression of a case. Clause 116 amends section 53A(3) of the Criminal Procedure Act 2009 to use the single term traffic camera offence to identify the offences to which section 53A does not apply. Section 53A does not apply to traffic camera offences because the briefs are so short that the accused's lawyer normally does not need a copy of the brief at the first mention hearing. Clause 117 inserts new subsection 394(1)(ab) in the Criminal Procedure Act 2009 to provide that ordinary service may be effected for documents relating only to a traffic camera offence by sending a copy of the document by prepaid ordinary post, addressed to the person to be served, to a post office box address nominated by the person. Clause 118 provides transitional provisions by inserting new section 444 into the Criminal Procedure Act 2009. New section 444(1) and (2) provide that amended sections 17 and 394 and new section 17A apply to a criminal proceeding commenced on or after the commencement of clauses 113, 117 and 114 (respectively) irrespective of when the offence is alleged to have been committed. New section 444(3) provides that amended section 39 applies to a criminal proceeding commenced on or after the commencement of clause 115, irrespective of when the offence is alleged to have been committed. 47

 


 

New section 444(4) provides that amended section 119 applies to a committal proceeding where the committal mention is held on or after the commencement of clause 108, irrespective of when the committal proceeding commenced. New section 444(5) and (6) provide that amended sections 124 and 132 and new section 132A apply to a committal proceeding in which no committal mention or committal hearing has been held before the commencement of clauses 109, 110 and 111 (respectively) irrespective of when the committal proceeding commenced. PART 5--MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED Part 5 of the Bill introduces significant reforms to the procedures for dealing with children in the criminal justice system who may be unfit to stand trial, or mentally impaired at the time of alleged offending. The principal reforms contained in Part 5 include-- · enabling the Children's Court to determine fitness to stand trial under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 for all indictable offences that may be heard in the Children's Court; and · requiring the President of the Children's Court to hear the most serious indictable cases when fitness to stand trial or the mental impairment defence is raised or nominate a magistrate to do so; and · on finding a child committed an indictable offence but is unfit to stand trial or on finding a child not guilty by reason of mental impairment, the Children's Court will be able to declare a child liable to supervision, and impose custodial and non-custodial supervision orders. Part 5 also amends the Working with Children Act 2005 to include in the definition of finding of guilty in section 4 a verdict of not guilty by reason of insanity made prior to commencement of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. 48

 


 

Division 1--Amendment of Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Division 1 of Part 5 contains amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, including the insertion of new Part 5A regarding proceedings in the Children's Court and appeals from those proceedings. Clause 119 amends section 3(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to amend definitions to take account of new Part 5A regarding proceedings in the Children's Court and add definitions relevant to children. Clause 120 amends section 4(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to except new section 5A and new Part 5A from the application of the Act to the County Court and Supreme Court only. The amendment enables section 5A and Part 5A to apply to criminal proceedings in the Children's Court. Clause 121 amends section 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to insert new subsection (3), which excludes the Children's Court from the operation of section 5. Clause 122 inserts new section 5A, providing the Children's Court with jurisdiction under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to determine fitness to stand trial for indictable offences that may be heard by the Children's Court, and the defence of mental impairment for those indictable offences and summary offences. On finding a child not guilty of a summary offence by reason of mental impairment the Children's Court must discharge the child. Clause 123 amends sections 10(1) and 10(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 in relation to orders that may be made in the County Court and Supreme Court pending investigation into fitness. Section 10(1)(ba) is inserted to enable those courts to remand a child in a youth justice centre or youth residential centre. Section 10(2) is amended to require a higher court not to remand an accused child in a youth justice centre or youth residential centre unless it has received a certificate of available services under section 47. 49

 


 

Clause 124 amends the heading to section 14A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to substitute "stand trial" for "plead". Clause 125 inserts new Part 5A into the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 providing for proceedings in the Children's Court and appeals from those proceedings. Division 1 of Part 5A contains general provisions. New section 38G(1) provides for Part 5A to apply to indictable offences heard and determined summarily in the Children's Court, committal proceedings in that court, and appeals from decisions of that court under Part 5A. Section 38G(2) provides for Division 1 and Division 4 of Part 5A to apply to summary offences, and appeals from a finding that a child is not guilty of a summary offence because of mental impairment. The effect of this is that only the new procedures regarding the mental impairment defence apply to summary offences heard in the Children's Court. Section 38G(3) provides that Part 6 does not apply to an order under Part 5A, except for sections 39, 40(1) and 47. The effect of this is that in a proceeding under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 the Children's Court is to apply the same principles, and have regard to the same matters, as the higher courts. In addition, the Children's Court must obtain a section 47 certificate of available services from the Department of Human Services or Department of Health before remanding a child in custody in a Part 5A proceeding, or placing a child on a supervision order. Section 38G(3) further provides that Parts 7, 7A and 7B of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 do not apply to an order under Part 5A. The effect of this is to exclude the operation of the leave and review procedures that apply in the higher courts, the interstate transfer provisions, and the provisions as to absconding. New section 38H sets out definitions applicable to Part 5A. New section 38I provides for the constitution of the Children's Court when the question of a child's fitness to stand trial, or the defence of mental impairment, arises. If the offence is punishable by level 2 imprisonment (25 years maximum), the Children's Court must be constituted by the President, or a 50

 


 

magistrate nominated by the President if the President is unavailable. In any other case, the court must be constituted by the President or a magistrate. Section 38I(2) provides that section 504(8) of the Children, Youth and Families Act 2005 does not apply, so that the court will not be able to be constituted by a judicial registrar. New section 38J(1) provides that a child must not be remanded in custody unless there is no practicable alternative in the circumstances. Section 38J(2) provides that the Children's Court or an appellate court must not make an order remanding a child in custody unless it has received a certificate as to available services under section 47 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Division 2 of Part 5A contains the Children's Court procedure for determining fitness to stand trial. New section 38K sets out the circumstances in which a child will be unfit to stand trial, which mirror those applicable to adults in section 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. New section 38L sets out the presumptions and standards of proof that apply to investigation by the court of a child's fitness to stand trial. These provisions mirror those in section 7 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, with the addition of a requirement for the defence to provide reasonable notice to the prosecution of an intention to raise fitness to stand trial. This will allow for appropriate management of cases in the summary jurisdiction of the Children's Court. New section 38M sets out the procedure to apply if the question of fitness to stand trial arises in a committal proceeding in the Children's Court. These provisions mirror those in section 8 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. After committal, section 38M requires the trial judge to hold an investigation under Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, as new Part 5A is applicable only to hearings in the Children's Court. New section 38N provides for the Children's Court to investigate a real and substantial question as to fitness to stand trial that arises at any time during a proceeding. Section 38N(3) allows the issue of fitness to be raised more than once. These 51

 


 

provisions mirror the provisions in section 9 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. New section 38O provides a time limit for an investigation into a child's fitness to stand trial. The investigation is to be completed as soon as possible, and within 3 months. No extension of time is allowed in the Children's Court, as is provided for in the higher courts in section 8 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. New section 38P provides the orders that may be made by the Children's Court pending investigation into fitness, which mirror those in section 10 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Section 38P does not set out the requirement for a section 47 certificate as set out in section 10, as new section 38J(2) imposes the general requirement that a court must not remand a child in custody without first obtaining a section 47 certificate. New section 38Q provides for the procedure on investigation into a child's fitness to stand trial. The court must hear any relevant evidence, and may call evidence on its own initiative, including ordering a medical examination of the child and a report of that examination. Section 38Q further requires the Children's Court, on finding a child unfit to stand trial, to consider whether the child will become fit within the next 6 months. If the court finds the child will become fit within 6 months, the court must specify the period by the end of which the child is likely to be fit to stand trial. This provision mirrors section 11 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, excluding requirements related to juries, and imposing a shorter time for children. New section 38R sets out what happens after an investigation into a child's fitness to stand trial. If the child is found to be fit to stand trial, the hearing is commenced or resumed as soon as possible and within 3 months. If the child is found not fit to stand trial but likely to become fit within the next 6 months, the court must adjourn the matter to the date within the next 6 months by which the child is likely to become fit and may grant bail or remand the child in custody, and make any other order considered appropriate. If the court finds the child is not likely to become fit within the next 6 months, it must proceed to hold a special hearing under Division 3 as soon as possible, and within 3 months, and may grant bail or remand the child in 52

 


 

custody. These provisions mirror those in section 12 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, applying shorter time periods for children. Section 38R does not contain the requirement for a certificate under section 47 that is in section 12 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, due to the amendment to section 47 provided in clause 128 and new section 38J(2). New section 38S allows for the child or the prosecutor to apply to the Children's Court for an order for the hearing to commence or resume if the child has become fit to stand trial, or for a special hearing to be held if the child will not become fit within 6 months. The application must be accompanied by a medical report on the mental condition of the child. The court may dismiss the application, order the hearing to commence or resume if the child has become fit, or order that a special hearing proceed as soon as possible, and within 3 months. These provisions mirror those for abridgement of adjournment in section 13 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, excepting the shorter time for children. New section 38T provides for what happens at the end of an adjournment. The child is presumed fit to stand trial unless a real and substantial question of fitness is raised again. If such a question is raised again, the court must proceed to hold a special hearing to determine whether the child committed the offence as soon as possible, and within 3 months. The child may be released on bail or remanded in custody. These provisions mirror section 14 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, although no extension of time is allowed for children. New section 38U provides for appeals in relation to fitness to stand trial from the Children's Court to the County Court or, if the Children's Court was constituted by the President, the Trial Division of the Supreme Court . An appeal is provided for in the same circumstances as section 14A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, but with procedure relevant to the Children's Court substituted. Division 3 of Part 5A contains the Children's Court special hearing provisions. 53

 


 

New section 38V sets out the purpose of special hearings, which is to determine whether the child is not guilty of the offence, not guilty because of mental impairment or committed the offence charged or an alternative offence. These provisions mirror those in section 15 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. New section 38W provides for the procedure at special hearings. A special hearing is to be conducted as nearly as possible as a hearing and determination of a charge for an offence, and the child must be legally represented. These provisions mirror those in section 16 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, excluding references to juries, and with the addition of the requirement that a child be legally represented as provided for in the Children, Youth and Families Act 2005. New section 38X provides that the findings available at special hearings are not guilty, not guilty because of mental impairment, or that the child committed the offence charged or an alternative offence. These provisions mirror those in section 17 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. New section 38Y sets out the effect of findings at special hearings. As in section 18 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, a finding of not guilty at a special hearing, or not guilty because of mental impairment, has the same effect as that finding at a hearing and determination of the charge. A finding that a child who is unfit to stand trial committed the offence charged constitutes a qualified finding of guilt, as in section 18. If the last mentioned finding is made, the Children's Court must declare the child liable to supervision under Division 5, or order the child to be unconditionally released. This provision mirrors section 18(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. However, section 38Y(5) goes on to provide that the Children's Court must not declare a child liable to supervision unless the court considers the declaration is necessary in all the circumstances, including whether adequate supervision is available in the community, whether the child has complied with community supervision, and whether a declaration is necessary for the protection of the child or the community. Section 38Y(6) provides that the Children's 54

 


 

Court must not release a child unconditionally unless satisfied that, if necessary, the child is receiving appropriate treatment or support for the child's mental health or disability. Section 38Y(7) enables the court to adjourn a hearing to enable evidence of those matters to be obtained. New section 38Z provides for orders pending the making of a supervision order including granting bail, remanding in custody, and any other order the court thinks appropriate. These provisions mirror those in section 19 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, without the provisions for medical examination and report, the requirement for a section 47 certificate prior to remand, and the requirement that the person not be remanded in prison unless there is no practicable alternative. These are not included in section 38Z as the Children's Court may not remand a child in prison, the medical examination requirement is not necessary as the Children's Court is empowered to make any other order it thinks appropriate, and the section 47 requirement and the requirement that a child not be remanded in custody unless there is no practicable alternative are provided for in new section 38J. Division 4 of Part 5A contains provisions concerning the defence of mental impairment in the Children's Court. New section 38ZA establishes the defence of mental impairment for a child. This provision sets out the tests for mental impairment, and mirrors section 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. New section 38ZB contains the presumptions and standard of proof relevant to the mental impairment defence in the Children's Court. These provisions mirror those in section 21 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, with the addition of a requirement that the defence provide the prosecution with reasonable notice of an intention to raise the defence. This requirement is not intended to delay the hearing of matters, but to enable appropriate management of matters in the summary jurisdiction of the Children's Court. New section 38ZC sets out when the question of mental impairment may be raised. The question may be raised at any time during a hearing by the defence or, with the leave of the Children's Court, by the prosecution. A child must not be 55

 


 

discharged in a committal hearing only because the defence has been raised. These provisions mirror those in section 22 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, excluding references to the jury. New section 38ZD sets out the effect of a finding of not guilty because of mental impairment. As in section 23 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the Children's Court is required to declare the child liable to supervision, or order the child to be released unconditionally. However, section 38ZD(2) contains the additional requirement that the Children's Court must not declare a child liable to supervision unless it is considered necessary in all the circumstances, including whether the child can receive adequate supervision in the community without a declaration. Section 38ZD(3) requires that the Children's Court must not order a child to be released unconditionally unless satisfied that, if necessary, the child is receiving appropriate treatment or support for the child's mental health or disability. Section 38ZD(4) enables the Children's Court to adjourn a hearing to obtain evidence of these matters. New section 38ZE provides for an appeal by a child against a mental impairment finding by the Children's Court to the County Court or, if the finding was made by the President of the Children's Court, to the Trial Division of the Supreme Court. The appeal is provided for in the same circumstances as in section 24AA of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, but with procedure relevant to the Children's Court substituted. New section 38ZF provides for an appeal by the Director of Public Prosecutions to the County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court against an order for unconditional release if he or she considers that the order should not have been made, and an appeal should be brought in the public interest. The appeal is provided for in the same circumstances as in section 24A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, but with procedure relevant to the Children's Court substituted. Division 5 of Part 5A concerns disposition of children declared liable to supervision in the Children's Court. 56

 


 

New section 38ZG provides that Division 5 continues to apply for the duration of a supervision order made under that Division, to a person who is no longer a child. New section 38ZH concerns supervision orders. If the Children's Court declares a child liable to supervision, a supervision order must be made in respect of the child. Section 38ZH(2) and (3) provide the purposes of custodial and non-custodial supervision orders for children. Though a child may be detained in a youth justice facility, the purpose of the detention is not punishment but to protect the child or the community while ensuring the child receives treatment, support, guidance and assistance for his or her mental impairment or other condition or disability. Section 38ZH(4) requires that a child may only be subject to a custodial supervision order for as long as is required for the protection of the child or the community. Section 38ZH(5) provides that a supervision order may commit the child to custody on a custodial supervision order, or release the child on a non-custodial supervision order on the conditions specified by the Children's Court in the order. Section 38ZH(6) requires the Children's Court to obtain a report under Division 6, which is a report from the relevant department as to the services that may be provided under a supervision order. Section 38ZH(6) also requires the Children's Court to obtain a certificate under section 47 as to the availability of facilities or services. The report and certificate must be obtained before supervision is ordered. Section 38ZH(7) provides that the Children's Court must not make a custodial supervision order unless the court finds there is no practicable alternative, and the order is required for the protection of the child or the community. New section 38ZI provides for the length of supervision orders made by the Children's Court. Supervision orders may not exceed 6 months, and the court must specify a date for review of the order that is within 6 months. The term of a supervision order may be extended by a maximum of 6 months more than once, but so that the total period of the order (including custodial and non-custodial components) does not exceed 12 months for a child aged 10 years or more but under 15 years, and 24 months for a child aged 15 years or more but under 21 years at the time of the making of the supervision order. The Children's Court cannot make indefinite orders as provided 57

 


 

in section 27 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. New section 38ZJ(1) provides for an appeal by a child against the making of a supervision order. The appeal is to the County Court or, if the order was made by the President of the Children's Court, to the Trial Division of the Supreme Court. Section 38ZJ(2) provides for an appeal by the Director of Public Prosecutions, the Attorney-General, the Secretary to the Department of Health or the Secretary to the Department of Human Services if he or she considers that a different supervision order should have been made, and an appeal should be brought in the public interest. The section provides for an appeal in the same circumstances as provided for in section 28A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, providing for the same orders as in section 28A, but with procedure relevant to the Children's Court substituted. New section 38ZK provides for application to the Children's Court by the person having the supervision of the child, the Secretary to the Department of Human Services, or the Secretary to the Department of Health for a variation of a non- custodial supervision order if it appears that the child has failed to comply with the order. Section 38ZK(2) enables the Children's Court to issue a warrant to arrest a child who does not attend the hearing of the application for variation. Section 38ZK(3) provides that if the Children's Court is satisfied on the evidence that the child has failed to comply with the non-custodial supervision order, the court must confirm the order, vary the conditions, or vary the order to a custodial supervision order. Section 38ZK(4) provides that if the non- custodial order is varied to a custodial supervision order, the term of the order continues to run. These provisions mirror those in section 29 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. New section 38ZL provides an appropriate person with an emergency power of apprehension if a child subject to a non- custodial supervision order has failed to comply with the order, or the safety of the child or the community is in issue. An appropriate person is defined as the person with supervision of the child, a member of the police force, an ambulance officer, or a person prescribed. For the purpose of apprehension, the 58

 


 

appropriate person may enter premises and use reasonable force, and restraint of the child that may be reasonably necessary. The child is to be detained in custody and treated or provided with services, if necessary, for his or her condition. The child must be released within 48 hours unless application is made under section 38ZK(1) for variation of the child's supervision order. This provision mirrors section 30 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. New section 38ZM enables the Children's Court to issue a warrant to arrest a child breaching a non-custodial supervision order who leaves Victoria. Application may be made to the court by a person with supervision of the child, the Secretary to the Department of Human Services, or the Secretary to the Department of Health if it appears that the child has failed to comply with the order, and has left Victoria. A child arrested must be detained and released within 48 hours unless application is made under section 38K(1) to vary the order. This section mirrors section 30A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. New section 38ZN enables the child subject to the order, a person having the custody, care, control or supervision of the child, or the Chief Commissioner of Police, to apply to the Children's Court for variation of a custodial supervision order, or variation or revocation of a non-custodial supervision order. If the Children's Court refuses an application by a child, the court may order that another application may not be made by the child until the next review of the order by the court. This section mirrors section 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, with adaptations relevant to the Children's Court jurisdiction. New section 38ZO provides the powers of the Children's Court on hearing an application for variation of a custodial supervision order under section 38ZN, or on review of such an order under section 38ZI(2), 38ZO(3) or 38ZP(2). The court must confirm the order, vary the place of custody, or vary the order to a non-custodial supervision order. Section 38ZO(2) provides that the custodial supervision order must not be varied to a non-custodial order unless the court is satisfied that the safety of the child or the community will not be seriously endangered as a result. This section mirrors section 32 of the 59

 


 

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, with adaptations relevant to the Children's Court jurisdiction. New section 38ZP provides the powers of the Children's Court on hearing an application for variation of a non-custodial supervision order under section 38ZN, or on review of such an order under section 38ZI(2), 38ZO(3) or 38ZP(2). The court must confirm the order, vary the conditions of the order, vary the order to a custodial supervision order or revoke the order. Section 38ZP(2) enables the court to direct that the matter be brought back for further review at the end of the period not exceeding 6 months that is specified by the court. This section mirrors section 32 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, with adaptations relevant to the Children's Court jurisdiction. New section 38ZQ provides for transfer of a supervision order made by the Children's Court to the County Court for review if the person subject to the order will be of or above the age of 19 years at the date specified by the Children's Court for review of the supervision order. On such transfer, section 38ZN continues to apply to an application for variation or revocation, and on such application, or on review, the County Court has the powers of the Children's Court under Division 5 of Part 5A. Division 6 of Part 5A provides for reports as to supervision and victim impact statements. New section 38ZR requires the Children's Court, on declaring a child liable to supervision, to order a report under Division 6 before making a supervision order. The hearing may be adjourned to allow the report to be prepared, and the child may be remanded in custody or granted bail. New section 38ZS provides that a report is to be prepared by the Secretary to the Department of Human Services, the Secretary to the Department of Health, or both departments, depending on the needs of the child and the services the child may require under a supervision order. New section 38ZT requires the report to set out whether the child has a mental impairment or other condition or disability and, if so, the services available and appropriate to the child, the services currently being made available to the child, whether or not by a government department, and whether the child has 60

 


 

complied with those services. If the court so requests, the report must set out the services that would be made available to the child if a custodial supervision order were made. The author of a report may include in the report a recommendation as to whether a custodial or non-custodial supervision order is appropriate for the child. If a child has an intellectual disability within the meaning of the Disability Act 2006 the Secretary to the Department of Human Services must include in the report a copy of the statement issued under that Act. Division 1 of Part 7.8 of Chapter 7 of the Children, Youth and Families Act 2005 applies with any necessary modifications to a report under this Division. Division 1 of Part 7.8 contains general requirements regarding reports to the Children's Court, including attendance of the author of the report at court to give evidence, disputed reports, and confidentiality of reports. New section 38ZU requires a report to be filed at least 3 working days before the return date with the registrar of the Children's Court at the venue of the court at which the order was made or, in the case of an appeal under section 38ZF, the prothonotary of the Supreme Court or the registrar of the County Court, as required. New section 38ZV provides for access to the report by requiring the author to provide copies of the report to the child, the child's legal practitioner, and any other person whom the court orders is to receive the report. If the child notifies the author that they object to the forwarding of copies of the report, or the author believes information in the report may be prejudicial to the physical or mental health of the child, the author is not required to send the report (except to the child's legal practitioner), but may send a part. If the report is not sent, or only part of the report is sent, the author must advise the registrar of the Children's Court, the prothonotary of the Supreme Court, or the registrar of the County Court, as the case requires. The relevant court may order the registrar or prothonotary to provide the report or part of the report to a person specified in the order. New section 38ZW provides for a victim of the offence to make a victim impact statement to the court before a court makes a supervision order under section 38ZH, or varies or revokes a supervision order under section 38ZO or 38ZP. The purpose of the statement is to assist the court in determining any conditions it may impose on a supervision order. Section 38ZW(2) 61

 


 

provides that sections 359, 359A and 359B of the Children, Youth and Families Act 2005 apply to victim impact statements under this section. These sections provide, amongst other matters, for how a victim may make a victim impact statement, what may be included in it, admissibility of statements, cross-examination of the victim, and alternative arrangements for reading the statement aloud, or for the victim to give evidence. Clause 126 inserts new section 39(2) in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 providing that a supervision order in subsection (1) includes an order made under section 38ZH. The effect of the amendment is to require the Children's Court to apply the principle in section 39 when making, varying or revoking orders under the Act. Clause 127 amends section 40(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to include a reference to Part 5A. The effect of the amendment is to require the Children's Court to have regard to the matters set out in section 40(1) when making, varying or revoking orders under Part 5A. Clause 128 amends section 47 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Subclause (1) inserts new section 47(1)(ab), requiring that a court must request the Secretary to the Department of Human Services to provide a certificate of available services if the court is considering imposing a supervision order on a child committing the child to custody, or providing for the child to receive services in custody in a youth justice centre or youth residential centre, or from a disability services provider, or the Secretary to the Department of Human Services. Subclause (2) inserts new section 47(1)(b)(iii), providing that the court must request such a certificate if making another order under the Act that a child be placed in custody in a youth justice centre or youth residential centre. Subclause (3) inserts new section 47(1A)(ab), providing that a court must request the Secretary to the Department of Health to provide the court with a certificate of available services if the court is considering imposing a supervision order on a child providing for the child to receive services from a mental health 62

 


 

service provider within the meaning of the Mental Health Act 2014. Clause 129 amends the definition of hearing in section 76(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to include investigations and special hearings under Part 5A. In section 76(1)(a) investigation is amended to mean an investigation under Part 2 or Division 2 of Part 5A. In section 76(1)(b) special hearing is amended to mean a special hearing under Part 3 or Division 3 of Part 5A. The effect of these amendments is to make evidence from an investigation or a special hearing conducted under Part 5A inadmissible except as provided in section 76. Clause 130 provides for extension of time for filing a notice of appeal from a decision of the Children's Court under Part 5A. Subclause (1) amends section 76C(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to exclude Part 5A from that provision. Subclause (2) inserts new section 76C(3) to provide that the County Court or the Trial Division of the Supreme Court may extend the time within which a notice of appeal may be filed under Part 5A. Clause 131 inserts a new transitional provision at the end of Schedule 3 to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 providing for the amendments in Division 1 of Part 5 of the Bill to apply to a proceeding for an offence that is commenced on or after the commencement of Division 1 of Part 5, and a proceeding for an offence that, on the commencement of Division 1 of Part 5, is before the Children's Court, irrespective of when the proceeding was commenced. Division 2--Amendment of Children, Youth and Families Act 2005 Clause 132 amends section 454 of the Children, Youth and Families Act 2005 regarding release on parole from a youth residential centre. New section 454(8) is inserted, providing that section 454 does not apply to a person detained in a youth residential centre in accordance with a custodial supervision order under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. 63

 


 

Clause 133 amends section 458 of the Children, Youth and Families Act 2005 regarding release on parole from a youth justice centre. New section 458(8) is inserted, providing that section 458 does not apply to a person detained in a youth justice centre in accordance with a custodial supervision order under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Clause 134 amends section 462 of the Children, Youth and Families Act 2005 regarding the jurisdiction of the Youth Residential Board. New section 462(2) provides that section 462 does not apply to a child detained in a youth residential centre in accordance with a custodial supervision order under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Clause 135 amends section 463 of the Children, Youth and Families Act 2005 regarding the jurisdiction of the Youth Parole Board. New section 463(2) is inserted, providing that section 463 does not apply to a person detained in a youth justice centre in accordance with a custodial supervision order under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Clause 136 amends section 478(b) and (c) of the Children, Youth and Families Act 2005 to enable the Governor in Council to establish youth justice centres and youth residential centres for children detained under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Clause 137 amends section 482A of the Children, Youth and Families Act 2005 to include in the definition of detainee a person detained under an order made under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Clause 138 amends section 525(2) of the Children, Youth and Families Act 2005 to insert new paragraph (ba), requiring a child to be legally represented in a proceeding or investigation under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Clause 139 amends section 544 of the Children, Youth and Families Act 2005 regarding the duties of youth justice officers for the Children's Court. Section 544(1)(a) is amended to require youth justice officers to prepare and furnish reports under Division 6 64

 


 

of Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Section 544(4) of the Children, Youth and Families Act 2005 is amended so that a written report prepared under this section may be tendered to the court only after a child is declared liable to supervision under Division 5 of Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Division 3--Consequential and other amendments Clause 140 amends section 3(2)(c) of the Accident Towing Services Act 2007 to include findings under sections 38X(1)(b) and 38X(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 as findings of guilt. This amendment ensures a finding for a child at a special hearing in the Children's Court is treated in the same way as the same finding made by the County Court or Supreme Court. Clause 141 amends sections 14 and 18 of the Appeal Costs Act 1998. Section 14(4) is amended to include a finding under 38X(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 in the definition of conviction. Section 18 is amended by inserting new subsection (ab) to include as a criminal proceeding an appeal against a finding under 38X(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, and appeals under sections 38U, 38ZE and 38ZF of that Act. Section 18(b) of the Appeal Costs Act 1998 is amended to insert reference to Division 2 of Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Section 18(c) of the Appeal Costs Act 1998 is amended to insert reference to Division 3 of Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. These amendments ensure a finding for a child at a special hearing in the Children's Court is treated in the same way as the same finding made by the County Court or Supreme Court. Clause 142 amends section 3(3)(d) of the Bus Safety Act 2009 to include findings under section 38X(1)(b) and (c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 in a finding of guilty. This amendment ensures a finding for a child at a special hearing in the Children's Court is treated in the same way as the same finding made by the County Court or Supreme Court. 65

 


 

Clause 143 amends section 4(2)(f) of the Coroners Act 2008 to include as a reportable death the death of a person subject to a non- custodial supervision order under section 38ZH of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Clause 144 amends section 3(1) of the Corrections Act 1986 to include in paragraph (f) of the definition of correctional order supervision orders made under section 38ZH of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Clause 145 amends section 5(3) of the Criminal Organisations Control Act 2012 to provide that criminal history does not include a finding under section 38X(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 at a special hearing. Clause 146 amends the section 152(2)(c) of the Disability Act 2006 to include a custodial supervision order made under section 38ZH of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 as an order under which compulsory treatment may be provided. Clause 147 amends section 3(1) of the Firearms Act 1996 to include in the definition of prohibited person a person subject to a supervision order under section 38ZH of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. This amendment ensures a supervision order imposed on a child by the Children's Court is treated in the same way as the same order made by the County Court or Supreme Court. Clause 148 amends clause 3 of Schedule 2 to the Juries Act 2000 to include a person subject to a supervision order under section 38ZH of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 as a person ineligible to serve as a juror. This amendment ensures a supervision order imposed on a child by the Children's Court is treated in the same way as the same order made by the County Court or Supreme Court. Clause 149 amends section 24(2A) of the Legal Aid Act 1978 to provide that the only consideration relevant to a grant of legal aid to a person subject to supervision under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 is whether it is reasonable having regard to all relevant matters to 66

 


 

provide the legal assistance. This amendment ensures a child on a supervision order imposed by the Children's Court is treated in the same way as a child on the same order imposed by the County Court or Supreme Court. Clause 150 amends section 276 of the Mental Health Act 2014 to provide that a secure treatment order may be made in relation to a person detained in prison under a custodial supervision order made under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, and to a person detained in a youth justice centre or youth residential centre, whether on remand or under a Part 5A supervision order. Section 305(1) of the Mental Health Act 2014 is amended to exclude from paragraphs (a) and (b) of the definition of forensic patient a person remanded in custody or committed to custody in a designated mental health service under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. This amendment ensures a child transferred from a youth justice centre for treatment for acute mental illness is returned to the centre as soon as he or she is well, rather than entering the civil mental health system as a forensic patient. Clause 151 amends section 3(4)(b) of the Police Regulation Act 1958 to include in a reference to a finding of guilt findings made at a special hearing under 38X(1)(b) or (c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. This amendment ensures a finding for a child at a special hearing in the Children's Court is treated in the same way as the same finding made by the County Court or Supreme Court. Clause 152 amends a number of definitions in section 3 of the Sex Offenders Registration Act 2004. The definition of existing controlled registrable offender is amended so that paragraphs (c) and (g) of the definition only apply to orders made under section 26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The definition of government custody is also amended so that paragraph (a)(iii) and (iv) apply only to orders under section 26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The definition of sentence is amended to include a declaration under section 38Y(4)(a) or 38ZD(1)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 that the child is liable to supervision under Division 5 of Part 5A of that Act. 67

 


 

The definition of sentence is further amended to include an order that the accused be released unconditionally under section 38Y(4)(b) or 38ZD(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The definition of supervised sentence is amended to include a non-custodial supervision order made by the Children's Court under section 38ZH(5)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Section 4(1)(d) of the Sex Offenders Registration Act 2004 is amended to include in the meaning of finding of guilt a finding made at a special hearing under section 38X(1)(b) or (c). These amendments ensure a child who is declared liable to supervision by the Children's Court is treated in the same way as a child declared liable to supervision by the County Court or Supreme Court. Clause 153 amends sections 130A(2)(d) and 163(1)(d) of the Transport (Compliance and Miscellaneous) Act 1983 to include in a finding of guilt a finding made under section 38X(1)(b) or 38X(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 at a special hearing in the Children's Court. This amendment ensures a finding for a child at a special hearing in the Children's Court is treated in the same way as the same finding made by the County Court or Supreme Court. Clause 154 amends section 4(1)(d) of the Working with Children Act 2005 to include findings made under section 38X(1)(b) or 38X(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 in the meaning of finding of guilt under that Act. This amendment ensures that a finding of not guilty because of mental impairment or a finding that a child committed an offence at a special hearing in the Children's Court is treated in the same way as the same finding made by the County Court or Supreme Court. Section 4(1)(e) is inserted into the Working with Children Act 2005 to include in the meaning of finding of guilt a verdict of not guilty on account of insanity returned under section 420 of the Crimes Act 1958 (as then in force), or an equivalent provision in a jurisdiction other than Victoria, before the day on which Schedule 3 to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 came into operation. This amendment ensures that a person found not guilty of an offence by reason of insanity will be treated the same as a person who has been found not guilty 68

 


 

by reason of mental impairment for the purposes of a Working with Children check. Clause 155 Subclause (1) amends section 38H of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (as inserted by this Bill) by substituting the definition of Chief Commissioner of Police consequential on the Victoria Police Act 2013. Subclause (2) amends a reference to a member of the police force in section 38ZL(6)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (as inserted by this Bill) to the new term of police officer consequential on the Victoria Police Act 2013. PART 6--MAJOR CRIME INVESTIGATIVE POWERS Part 6 of the Bill amends the Major Crime (Investigative Powers) Act 2004 (MCIP Act) to improve the operation of that Act and makes a related amendment to the Criminal Procedure Act 2009. Clause 156 amends section 1 of the MCIP Act to clarify the purposes of that Act. The amendment clarifies the purposes of the MCIP Act by including the investigation and prosecution of organised crime offences and the overarching purpose of combating and reducing the incidence of organised crime offences. Clause 157 inserts a definition of restricted evidence in section 3 of the MCIP Act. Restricted evidence means any evidence, information or thing that is the subject of a direction that is in force under section 43(1). The definition is used in section 43 and the new sections 43A and 43B. Clause 158 amends section 20 of the MCIP Act by substituting new provisions for the existing sections 20(2) and 20(3). Section 20(1) provides for the issuing of a notice by the Supreme Court or the Chief Examiner that states that a summons or order is confidential and that it is an offence to disclose certain matters. Under the new section 20(2), a notice must be issued in the circumstances described in that subsection. Under the new section 20(3), a notice may be issued in the circumstances described in that section. 69

 


 

The new section 20(2) provides that the Supreme Court or the Chief Examiner must give a notice under section 20(1) if satisfied that failure to do so-- · would reasonably be expected to prejudice the safety of a person, the fair trial of a person or the effectiveness of an investigation of the organised crime offence in relation to which the summons was issued or the order made; or · would otherwise be contrary to the public interest. The new section 20(3) provides that the Supreme Court or the Chief Examiner may give a notice under section 20(1) if satisfied that failure to do so-- · might prejudice the effectiveness of an investigation of the organised crime offence in relation to which the summons was issued or the order made; or · might otherwise be contrary to the public interest. Clause 159 amends section 29(2) of the MCIP Act. Section 29 governs when the Chief Examiner may conduct an examination. The amendments clarify that the Chief Examiner may exercise their powers to conduct an examination in circumstances where the person to be examined is also the subject of proceedings, whether criminal or civil, in relation to the same subject matter of the coercive powers order. Clause 160 substitutes a new section 31(2) of the MCIP Act for the existing provision. The new section 31(2) provides that where a witness attends an examination solely to produce documents on behalf of a body corporate, section 31(1) does not apply if the witness elects to produce the documents without the requirements of that subsection having been met. If the witness does not make such an election, the Chief Examiner is only required to comply with section 31(1)(d), (e), (f) and (g). Section 31(1) prescribes a number of preliminary requirements that must be asked of a witness prior to an examination. The amendment also replaces the reference in section 31(2) to a corporation or an ADI (approved deposit taking institution) with a reference to a body corporate. 70

 


 

Clause 161 amends section 37(2) of the MCIP Act. The effect of the amendment is to make the offences of refusing or failing to answer a question or produce a document or other thing qualified by "without reasonable excuse". A person charged with an offence can raise a reasonable excuse in defence of that charge. The amendment makes the offences in section 37(2) consistent with contempt of the Chief Examiner under section 49(1). Clause 162 Subclause (1) inserts a new section 39(1A) after section 39(1) of the MCIP Act. The new section provides that section 39(1) applies whether or not the person has been or may be charged with an offence in respect of the subject-matter of the question, information, document or other thing. Subclause (2) inserts a new section 39(4). It provides that nothing in section 39(3) prevents the admission in a criminal proceeding or proceeding for the imposition of a penalty of any evidence obtained as a direct or indirect consequence of an answer given at an examination or a document or other thing produced at an examination or in answer to a witness summons, and any such evidence is admissible in the proceeding in accordance with the rules of evidence. Section 39 abrogates the privilege against self-incrimination. Section 39(1) provides that a person is not excused from answering a question or giving information at an examination or producing a document or other thing on the ground that the answer or production might tend to incriminate them or make them liable to a penalty. Section 39(2) provides that section 39(3) limits the use that can be made of any answers given, or documents or other things produced, at an examination. Section 39(3) provides, subject to some exceptions, that the answer, document or thing is not admissible in evidence against the person in a criminal proceeding or a proceeding for the imposition of a penalty. The exceptions are proceedings for an offence against the MCIP Act, proceedings under the Confiscation Act 1997 and proceedings in respect of the falsity of an answer or the falsity of a document or any statement contained in the document. Section 39(2) provides a "direct use" immunity in relation to the answers given or documents or other things produced at an examination. The effect of the amendments is to allow the 71

 


 

"derivative use" of answers or documents or things. That is, the immunity in section 39(2) will not extend to the use of other information or evidence derived as a result of answers or documents or things produced in a prosecution against the witness or against a third party. Whether such evidence can be used in other proceedings will depend on the admissibility of that evidence as determined by the ordinary rules of evidence. The provision as amended abrogates the privilege against self- incrimination and provides a direct use immunity, but no derivative use immunity. Clause 163 amends section 43 of the MCIP Act by substituting a new section 43(2), inserting a new section 43(2A), substitutung a new section 43(4) and repealing sections 43(4A) and (5). Section 43(1) provides that the Chief Examiner may direct that any evidence given, document or description of a thing produced, information that might enable a person who has given evidence to be identified or the fact that a person has given, or is about to give, evidence must not be published or communicated or must not be published or comminucated except in such manner and to such persons as the Chief Examiner specifies. Under section 43(3) a person who contravenes a direction is guilty of an indictable offences and liable to level 6 imprisonment (a maximum of 5 years). The new section 43(2) provides that the Chief Examiner must give a direction if satisfied that the failure to do so would reasonably be expected to prejudice the safety of a person or the fair trial of a person who has been or may be charged with an offence. The new section 43(2A) clarifies that a reference in section 43(2) to a person includes a person who has given, or may be about to give, evidence before the Chief Examiner or produced, or may be about to produce, a document or other thing to the Chief Examiner. The new section 43(4) provides that if a person is charged with an offence against the MCIP Act, nothing in section 43 or the new section 43A prevents the publication or communication of restricted evidence by the Chief Examiner or Chief Commissioner to the court or the person charged or their legal representative. 72

 


 

Clause 164 inserts new sections 43A and 43B after section 43 of the MCIP Act. The new sections deal with the situation where restricted evidence is sought to be released to a person charged with an offence and the situation where restricted evidence is sought to be released where a person has not been charged with an offence. The new section 43A(1) provides that, on an application by the Chief Commissioner, the Director of Public Prosecutions or a person charged with an offence or their legal representative, a court may give a certificate to the Chief Examiner or Chief Commissioner if the court considers it is desirable in the interests of justice that restricted evidence be made available to a person charged with an offence before the court or their legal representative. The new section 43A(2) provides that, if the court gives a certificate, the restricted evidence must be made available to the court by the Chief Examiner or Chief Commissioner (as the case requires). Under the new section 43A(3), if restricted evidence is made available to the court, the court must give each person listed in the new section 43A(4) an opportunity to make submissions as to whether the restricted evidence should be made available, in whole or in part, to the person charged or their legal representative. For the purposes of 43A(3), the new section 43A(4) provides that submissions can be made by the Chief Examiner, Chief Commissioner and a witness if a direction under section 43(1) in relation to restricted evidence involves the interests of that witness. Under the new section 43A(5), the court may make the restricted evidence available to the person charged or their legal representative and the Director of Public Prosecutions if, after examining the evidence and considering any submissions, it is satisfied that the interests of justice so require. The new section 43B(1) provides for the making of an application to a court by the Chief Commissioner for an order that restricted evidence be made available to the Director of Public Prosecutions for the purpose of prosecuting a person for an offence if the Chief Commissioner suspects on reasonable 73

 


 

grounds that there are reasonable prospects for the conviction of a person for an offence if the evidence is made so available. Under the new section 43B(2), on an application under section 43B(1), the court may direct the Chief Examiner or Chief Commissioner to make the restricted evidence available to the court. The new section 43B(3) requires the Chief Examiner or Chief Commissioner to make the restricted evidence available to the court if directed to do so. Under the new section 43B(4), if restricted evidence is made available to the court, the court must give each person listed in the new section 43B(5) an opportunity to make submissions as to whether the restricted evidence should be made available, in whole or in part, to the Director of Public Prosecutions for the purpose of prosecuting a person for an offence. For the purposes of 43B(4), the new section 43B(5) provides that submissions can be made by the Chief Examiner, Chief Commissioner, Director of Public Prosecutions and a witness if a direction under section 43(1) in relation to restricted evidence involves the interests of that witness. The new section 43B(6) provides that the court may, by order, make the restricted evidence available to the Director of Public Prosecutions for the purpose of prosecuting a person for an offence if, after examining the restricted evidence and considering any submissions, the court is satisfied that there are reasonable grounds for the suspicion founding the application for the order and the interests of justice require the evidence to be made so available. The new section 43B(7) states that where restricted evidence is made available to the Director of Public Prosecutions and a person is subsequently charged, nothing in the MCIP Act prevents the Director of Public Prosecutions from making the evidence available to the person charged or their legal representative. The new section 43B(8) defines court for the purpose of section 43B as the Supreme Court or the County Court. 74

 


 

Clause 165 Subclause (1) substitutes section 46(5) of the MCIP Act to provide that a person arrested under a warrant must be brought, as soon as practicable, before the Court and the Court may discharge the person on bail in accordance with the Bail Act 1977, order the continued detention of the person in a prison or police gaol for the purpose of ensuring their appearance as a witness at an examination or order the unconditional discharge of the person from custody. Subclause (2) repeals section 46(7) of the MCIP Act and amends section 46(8) as a consequence of the new section 46(5) substituted by subclause (1). Section 46 provides for the issuing of a warrant for the arrest of a person where, on an application by police, the Supreme or County Court (as the case requires) is satisfied there are reasonable grounds to believe that-- · a person to whom a witness summons has been issued has absconded or is likely to abscond or is otherwise attempting or likely to attempt to evade service of the summons; or · a person has committed an offence under section 37(1) or is likely to do so. Section 37(1) creates an offence where a person fails, without reasonable excuse, to attend an examination as required by a summons or fails to attend day to day unless excused or released from further attendance by the Chief Examiner. The amendments require that a person arrested is either released on bail, detained in a prison or police gaol or released unconditionally. Clause 166 repeals sections 49(12) and 50(2) of the MCIP Act. The amendments remove the sunset provision in relation to section 49, which provides powers and offences in relation to contempt of the Chief Examiner, and section 50, in relation to the sunset provision applying to double jeopardy under the MCIP Act where an act or omission is both an offence and a contempt. Clause 167 inserts a new section 65(1A) after section 65(1) of the MCIP Act. The new section confers on the Chief Commissioner the power to delegate the power of the Chief Commissioner under the new section 43B to a police officer of or above the rank on 75

 


 

inspector. The power to delegate must be exercised by instrument. Clause 168 Paragraph (a) amends the Criminal Procedure Act 2009 by inserting after section 110(d)(v) of that Act a new subparagraph (va). Paragraph (b) amends section 113(1) of the Criminal Procedure Act 2009. The Criminal Procedure Act 2009 sets out the rules in relation to criminal procedure. Chapter 4 of that Act governs committal hearings and Part 4.4 prescribes the requirements in relation to the service and content of hand-up briefs. Section 110 is in Part 4.4 and the amendment inserting a new section 110(d)(va) ensures the transcript of an examination is included in a hand- up brief where a record of that examination is to be tendered in a prosecution. Where the transcript of an examination is included in a hand-up brief, the amendment to section 113(1) will require an affidavit from the person who made the recording of the examination attesting to the accuracy of that recording. PART 7--VARIATION OF ALCOHOL EXCLUSION ORDERS Part 6 of the Bill enacts a new procedure for the variation of alcohol exclusion orders made under Part 4 Division 4 of the Sentencing Act 1991. Clause 169 amends sections 89DD and 89DG of the Sentencing Act 1991. New section 89DD(5) provides that when making an alcohol exclusion order, the Supreme Court may direct that any application to vary that order is to be made to the Magistrates' Court for determination. Subclause (2) substitutes a new section 89DG(2) of the Sentencing Act 1991 to provide that all applications to vary an alcohol exclusion order must be made to the Magistrates' Court, except where the order was imposed by the Supreme Court and that Court has not made a direction under new section 89DD(5). Under subclause (2A), for the purpose of the variation application to the Magistrates' Court, the alcohol exclusion order made by the County or Supreme Court must be taken to have been made by the Magistrates' Court. 76

 


 

Subclause (3) inserts new section 89DG(5) into the Sentencing Act 1991. That provision provides that an order of the Supreme Court or County Court that is varied by the Magistrates' Court under this section is taken for the purposes of enforcement to be an order of the Magistrates' Court. Clause 170 inserts new section 153 into the Sentencing Act 1991, which is a transitional provision. The provision states that the amendments made to the Sentencing Act 1991 by Part 6 apply to the sentencing of a person on or after the commencement of that Part, irrespective of when the offence was committed or the conviction was recorded. PART 8--MISCELLANEOUS AMENDMENTS Part 7 of the Bill makes miscellaneous amendments to the Criminal Procedure Act 2009, the Evidence (Miscellaneous Provisions) Act 1958, the Mental Health Act 2014, the Open Courts Act 2013, the Personal Safety Intervention Orders Act 2010, the Summary Offences Act 1966, the Victorian Institute of Forensic Medicine Act 1985, the Victoria Police Act 2013 and the Corrections Act 1986. Division 1--Amendment of Criminal Procedure Act 2009 Clause 171 inserts new items 24 and 24A into Schedule 3 of the Criminal Procedure Act 2009. Schedule 3 lists categories of persons authorised to witness statements in preliminary briefs, hand-up briefs and full briefs under that Act. New item 24 authorises general inspectors and specialist inspectors within the meaning of the Prevention of Cruelty to Animals Act 1986 to witness these statements. Division 2--Amendment of Evidence (Miscellaneous Provisions) Act 1958 Clause 172 substitutes items in section 107A(1) of the Evidence (Miscellaneous Provisions) Act 1958 to update and clarify the list of persons who may witness statutory declarations. Clause 173 substitutes a new section 123C(1)(d) of the Evidence (Miscellaneous Provisions) Act 1958 to provide that affidavits may be sworn and taken within Victoria before Children's Court registrars, as well as the other specified persons. 77

 


 

Division 3--Amendment of Mental Health Act 2014 Clause 174 inserts definitions of protective services officer and designated place into section 3(1) of the Mental Health Act 2014. Clause 175 amends section 351 of the Mental Health Act 2014 to allow a protective services officer on duty at a designated place to apprehend a person if the protective services officer is satisfied that the person appears to have mental illness and because of that apparent illness the person needs to be apprehended to prevent serious and imminent harm. A protective services officer is not required to make a clinical judgement in determining whether a person appears to have mental illness for the purposes of section 351(1). Clause 47 inserts a new section 351(4A) to require a protective services officer, as soon as practicable, to arrange for a person apprehended under section 351(1) to be handed into the custody of a police officer, or taken to a registered medical practitioner or mental health practitioner or health service, so the person can be examined in accordance with section 30 of the Mental Health Act 2014. The clause inserts a new subsection (5A) to clarify when a person apprehended under this section is no longer in the custody of the protective services officer. Division 4--Amendment of Open Courts Act 2013 Clause 176 substitutes paragraph (b) of subsection (1) of section 10 of the Open Courts Act 2013. Existing subsection (1) provides that an applicant for a suppression order must give 3 business days' notice of the making of the application to the relevant court or tribunal, and to the parties to the proceeding to which the application relates. New paragraph (b) provides that notice must be given to the parties on the record in the proceeding to which the suppression order application relates. This amendment is necessary as the definition of parties to the proceeding (in section 3 of the Open Courts Act 2013) is too broad in this context and means that the existing provision does not achieve its original intent and makes compliance impractical. 78

 


 

Clause 177 substitutes subsection (1) of section 26 of the Open Courts Act 2013 so that the test for the Magistrates' Court making a broad suppression order is aligned with the test for the making a proceeding suppression order on administration of justice or personal safety grounds. Division 5--Amendment of Personal Safety Intervention Orders Act 2010 Clause 178 inserts new section 16A in the Personal Safety Intervention Orders Act 2010. This section provides that Magistrates' Court registrars must refuse to accept a personal safety intervention order application if they are satisfied the application is frivolous, vexatious, an abuse of process, without substance, has no reasonable prospect of success or is in bad faith; or the matter would be more appropriately dealt with by mediation. This is to ensure that suitable interpersonal disputes are diverted from the court to more appropriate dispute resolution, such as the free mediation service provided by the Dispute Settlement Centre of Victoria. In exercising this power of refusal section 16A(3) requires the registrar to consider-- · whether the prospective applicant has attempted mediation, or attended a mediation assessment, and the outcome of this process; · whether the prospective applicant has reported the matter to police; · any matters that are prohibited from proceeding to mediation by guidelines under subsection (4); and · any other relevant matter. Section 16A only applies to personal safety intervention order applications in the Magistrates' Court. It will not apply to-- · applications in the Children's Court; · applications bought by police officers; or · applications to vary, extend or revoke personal safety intervention order applications. 79

 


 

Under section 16A(4) guidelines may be issued relating to matters to which registrars must have regard in determining whether to refuse to accept an application. These guidelines will identify matters that are unsuitable for mediation in a similar way that guidelines issued for a similar purpose under section 34(1) of the Personal Safety Intervention Orders Act 2010 do. Guidelines currently made under section 34(1) for example, have identified that matters in which there is no substantive "dispute" such as sexual assault, stalking and other matters where there is a perpetrator and a victim are unsuited to mediation. Guidelines made under section 16A(4) will aim to ensure applications for personal safety intervention orders are made in appropriate cases and that inappropriate matters are not diverted to mediation. If a registrar refuses an application, under section 16A(5) the prospective applicant can apply to have the decision reviewed and the Magistrates' Court may direct a registrar to accept the application. Division 6--Amendment of Summary Offences Act 1966 Clause 179 amends section 6B(1) of the Summary Offences Act 1966 to provide protective services officers with a power to request the name and address of a person to whom they intend to give a direction to move on. The amendments ensure that the power to request a person's name and address operates in the same way for both police officers and protective services officers. For example, subclause (3) ensures that it is an offence to fail to comply with such a request, by a police officer or protective services officer, without a reasonable excuse. Subclause (5) provides that a person requested by a police officer or a protective services officer to state his or her name and address may request the officer to state his or her name, rank and place of duty. New section 6B(5)(d) provides that a protective services officer must not state as his or her place of duty a location other than that of the police station the officer deploys from or the location of deployment to which the protective services officer is assigned. 80

 


 

Division 7--Amendment of Victorian Institute of Forensic Medicine Act 1985 Clause 180 amends section 67(2) of the Victorian Institute of Forensic Medicine Act 1985 to insert new paragraph (l) to enable the appointment to the Victorian Institute of Forensic Medicine Council of one other person who has knowledge of, or experience in, accountancy or financial management. Clause 181 inserts new section 69(1A) in the Victorian Institute of Forensic Medicine Act 1985 which provides that the member of the Council referred to in section 67(2)(l) of that Act is to be appointed on the recommendation of the Attorney-General after receiving advice from the Chairperson. Division 8--Amendments relating to Victoria Police Clause 182 amends sections 31(1) and 40(1) of the Victoria Police Act 2013 to provide that a decision by the Chief Commissioner to promote a police officer, or a protective services officer, to a higher rank is made in accordance with that Act and the regulations. Clause 183 substitutes the words "Chief Commissioner" for the word "Commissioner" in section 255(3)(c) of the Victoria Police Act 2013. Clause 184 amends Schedule 5 of the Victoria Police Act 2013 to substitute a new clause 2.9 which specifies the promotion and transfer of police officers and protective services officers as a matter that may be the subject of regulations, and corrects a typographical error in clause 5.8 of that Schedule. Clause 185 corrects typographical errors in clauses 37 and 39 of Schedule 6 of the Victoria Police Act 2013. Clause 186 makes a consequential amendment to section 78D(4) of the Corrections Act 1986 to replace the reference to a "member of the police force" with "police officer". 81

 


 

PART 9--REPEAL OF AMENDING ACT Clause 187 provides for the automatic repeal of this amending Act on 1 March 2016. The repeal of this Act does not affect in any way the continuing operation of the amendments made by this Act (see section 15(1) of the Interpretation of Legislation Act 1984). 82

 


 

 


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