Justice Legislation Amendment (Police and Other Matters) Bill 2019 Explanatory Memoranda

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Justice Legislation Amendment (Police and Other Matters) Bill 2019

Justice Legislation Amendment (Police and Other Matters) Bill 2019 Introduction Print EXPLANATORY MEMORANDUM General The Justice Legislation Amendment (Police and Other Matters) Bill 2019 makes a range of miscellaneous amendments to the Bail Act 1977, the Confiscation Act 1997, the Corrections Act 1986, the Crimes Act 1958, the Drugs, Poisons and Controlled Substances Act 1981, the Firearms Act 1996, the Magistrates' Court Act 1989, the Protected Disclosure Act 2012, the Road Safety Act 1986, the Second-Hand Dealers and Pawnbrokers Act 1989, the Sentencing Act 1991, the Sex Offenders Registration Act 2004, the Sex Offender Registration Amendment (Miscellaneous) Act 2017, the Surveillance Devices Act 1999, the Victoria Police Act 2013 and for other purposes. Clause Notes Part 1--Preliminary Clause 1 sets out the purposes of the Bill. Clause 2 provides for the commencement of the Act. The Act (except Parts 2, 3, 4, 5 and 6, and Divisions 1 and 2 of Part 8 and Divisions 1 and 3 of Part 9 and clauses 50 and 51) comes into operation on the day after the day the Act receives the Royal Assent. Parts 2, 3, 4, 5, 6, and Divisions 1 and 2 of Part 8 and Divisions 1 and 3 of Part 9 will come into operation on 1 December 2019 (the default commencement date) if they are not proclaimed earlier. Clauses 50 and 51 of the Bill will commence on a day or days to be proclaimed. No default commencement date applies to these clauses as their commencement is tied to the passage 591013 1 BILL LA INTRODUCTION 5/2/2019

and commencement of the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017, which is currently before the Commonwealth Parliament. Part 2--Discharging firearm and intimidation offences and common assault Division 1--Amendment to the Crimes Act 1958 Clause 3 inserts new sections 31C and 31D into the Crimes Act 1958. New sections 31C and 31D insert offences into the Crimes Act 1958 connected to either a police officer or protective services officer on duty or a law enforcement officer or a family member of a law enforcement officer. New section 31C of the Crimes Act 1958 creates the offence of discharging a firearm reckless to the safety of a police officer or a protective services officer. Section 31C(1) provides that a person commits an offence if, without lawful excuse, they discharge a firearm and are reckless as to the safety of a police officer or protective services officer on duty due to the discharge of the firearm, and the person knows, or is reckless as to whether the victim is a police officer or a protective services officer. Section 31C(2) provides that the penalty for this offence is level 4 imprisonment (15 years maximum). New section 31C(3) provides exceptions to the offence for a range of circumstances, including--  a police officer or protective services officer acting in the course of their official duties when authorised to discharge a firearm by the Chief Commissioner of Police; or  a senior IBAC Officer carrying out the purposes for which firearms may be used under Part 5 of the Independent Broad-based Anti-corruption Commission Act 2011 and as authorised under that Part; or 2

 a member of a police force or police service of the Commonwealth or of another State or a Territory discharging a firearm issued to the member for the performance of a detailed duty; or  a prison guard who holds a licence under the Firearms Act 1996 issued for the requirement of the occupation of prison guard discharging a firearm as authorised under that licence while acting in the course of the prison guard's duties in the immediate pursuit of another person who is under the prison guard's custody; or  a person who holds a licence under the Firearms Act 1996, discharging a firearm the person is authorised to use under the licence in the course of the person's duties under--  the Conservation, Forests and Lands Act 1987; or  the Livestock Disease Control Act 1994; or  the Prevention of Cruelty to Animals Act 1986. The notes to section 31C cross reference with the Sentencing Act 1991 to indicate that the offence is a category 2 offence for the purposes of section 5(2H) of the Sentencing Act 1991 which requires a court, unless it is satisfied certain circumstances exist, to impose a custodial order for the offence when committed in certain circumstances. The notes also state that a presumption in favour of cumulation applies to terms of imprisonment imposed for an offence against the new section 31C. Section 31C(4) establishes definitions for discharge, firearm, police officer on duty, protective services officer on duty, and senior IBAC Officer. New section 31D of the Crimes Act 1958 creates the offence of intimidation of a law enforcement officer or a family member of a law enforcement officer. New section 31D(1) provides that a person commits an offence if they use or procure the use of intimidation toward a law enforcement officer of a family member of a law enforcement officer (the victim) for reasons related to the victim being a law 3

enforcement officer of a family member of a law enforcement officer. New section 31D(2) provides that the penalty for this offence is level 5 imprisonment (10 years maximum). New section 31D(3) establishes conduct that constitutes intimidation for the purpose of the new section 31D. Under the new section 31D(3) a person uses intimidation towards a victim if they engage in conduct that would reasonably be expected to arouse apprehension or fear in the victim for the safety of the victim and the person knows or ought to have known that engaging in that conduct would be likely to arouse that apprehension or fear. New section 31D(4) ensures that it is immaterial whether or not the conduct arouses apprehension or fear in the victim. New section 31D(5) provides a defence to the intimidation of a law enforcement officer charge for the accused to prove that conduct in respect of a victim was engaged in without malice--  in the normal course of a lawful business, trade, profession or enterprise (including that of any body or person whose business, or whose principal business, is the publication, or arranging the publication, of news or current affairs material); or  for the purpose of an industrial dispute; or  for the purpose of engaging in political activities or discussion or communicating with respect to public affairs. New section 31D(5) also provides that the defence is only applicable when the conduct is in respect of the following persons, as defined in paragraphs (d), (e), (f) or (g) of the definition of law enforcement officer in new section 31D(8)--  a Governor, prison officer or escort officer within the meaning of the Corrections Act 1986; or  a person authorised under section 9A(1) of the Corrections Act 1986 to exercise a function or power of a Governor, a prison officer or an escort officer under that Act; or 4

 a person authorised under section 9A(1A) or (1B) of the Corrections Act 1986 to exercise a function or power referred to in that subsection; or  a youth justice custodial worker within the meaning of the Children, Youth and Families Act 2005. New section 31D(6) makes clear that a single act may amount to intimidation for the purposes of the new offence at section 31D. New section 31D(7) relates to the extraterritorial operation of the new offence at section 31D and provides that it is immaterial that--  some or all of the conduct constituting an offence occurred outside Victoria, so long as the victim was in Victoria at the time at which that conduct occurred; or  the victim was outside Victoria at the time at which some or all of the conduct constituting an offence occurred, so long as the conduct occurred in Victoria; or  some or all of the conduct constituting an offence occurred outside Victoria and the victim was outside Victoria at the relevant time or times, so long as the conduct is for reasons related to the victim being a law enforcement officer in Victoria, or a family member of a law enforcement officer in Victoria. New section 31D(8) provides that for this section, the definition of a family member is the same as section 8 of the Family Violence Protection Act 2008. New section 31D(8) provides the definition of a law enforcement officer as a person who is--  a police officer; or  a protective services officer; or  a police custody officer within the meaning of the Victoria Police Act 2013; or  a Governor, prison officer or escort officer within the meaning of the Corrections Act 1986; or  authorised under section 9A(1) of the Corrections Act 1986 to exercise a function or power of a Governor, a prison officer or an escort officer under that Act; or 5

 authorised under section 9A(1A) or (1B) of the Corrections Act 1986 to exercise a function or power referred to in that subsection; or  a youth justice custodial worker within the meaning of the Children, Youth and Families Act 2005. Clause 4 inserts new sections 320A into the Crimes Act 1958. New section 320A creates a higher penalty for common assault committed in certain circumstances. Section 320A(1) ensures that despite section 320 of the Crimes Act 1956, the maximum term of imprisonment for common assault is level 5 imprisonment (10 years maximum) if committed in circumstances where the offender has an offensive weapon readily available, the victim is a police officer or protective services officer on duty and the offender knows or is reckless as to whether the victim is a police officer or a protective services officer. Section 320A(1) also requires the offender to enable the victim to see the offensive weapon or the general shape of the offensive weapon, or tell or suggest to the victim that they have an offensive weapon or a firearm readily available. Section 320A(1) also requires the victim to know, or in all the particular circumstances ought to have known that engaging in this conduct would likely to arouse apprehension or fear. The notes to section 320A(1) cross reference the Sentencing Act 1991 to indicate that the offence is a category 2 offence for the purposes of section 5(2H) of the Sentencing Act 1991 which requires a court, unless satisfied that certain circumstances exist, to impose a custodial order for the offence committed in certain circumstances. The notes also state that a presumption in favour of cumulation applies to terms of imprisonment for a common assault committed in the circumstances under new section 320A(1). Section 320A(2) ensures that despite section 320 of the Crimes Act 1958, the maximum term of imprisonment for common assault is level 4 imprisonment (15 years maximum) if committed in circumstances where the offender has a firearm or an imitation firearm readily available, the victim is a police officer or protective services officer on duty and the offender 6

knows, or is reckless as to whether the victim is a police officer or a protective services officer. Section 320A(2) also requires the offender to enable the victim to see the firearm or imitation firearm or the general shape of the firearm or imitation firearm, or tell or suggest to the victim that they have the firearm or imitation firearm readily available. Section 320A(2) also requires that the offender know, or in all the particular circumstances ought to have known, that engaging in the conduct would likely arouse apprehension or fear. The notes to section 320A(2) cross reference the Sentencing Act 1991 to indicate that the offence is a category 2 offence for the purposes of section 5(2H) of the Sentencing Act 1991 which requires a court, unless satisfied that certain circumstances exist, to impose a custodial order for the offence committed in certain circumstances. The notes also state that a presumption in favour of cumulation applies to terms of imprisonment for a common assault committed in the circumstances under new section 320A(2). Section 320A(3) provides that for the purposes of section 320(1) and (2), a person has an offensive weapon readily, a firearm or an imitation firearm readily available if it is--  in the person's hand; or  on the person's body; or  within the person's reach. Section 320A(4) establishes definitions for firearm, imitation firearm, offensive weapon, police officer on duty and protective services officer on duty. Clause 5 amends the Crimes Act 1958 to correct some errors. Subclause (1) substitutes "custodial worker" for "custodial worker." in section 317AC(1)(b), (2) and (2)(a) of the Crimes Act 1958. Subclause (2) substitutes "worker is" for "worker. is" in section 317AC(2)(c) of the Crimes Act 1958. 7

Division 2--Amendment of the Bail Act 1977 Clause 6 amends the Bail Act 1977 to create a presumption against bail for persons charged with some of the new offences created by Division 1, if those offences are alleged to have been committed in certain circumstances. Subsection (1) creates a presumption against bail unless there are compelling reasons for a person alleged to have committed an offence against the new section 31C of the Crimes Act 1958, (discharge a firearm reckless to safety of a police officer or protective services officer) in circumstances where the offender's conduct is alleged to have created a risk to the physical safety of the victim or to any member of the public, by inserting a new item 22(aa) to Schedule 2 to the Bail Act 1977. Subsection (2) creates a presumption against bail unless there are compelling reasons for a person alleged to have committed an offence against the new section 320A(1) or (2) of the Crimes Act 1958 if it is alleged that the assault consisted of or included the direct application of force within the meaning of the definition of assault in section 31(2) of that Act, by inserting a new item 23A to Schedule 2 to the Bail Act 1977. Division 3--Amendment of the Sentencing Act 1991 Clause 7 inserts new paragraphs (l) and (m) into the definition of category 2 offence in section 3(1) of the Sentencing Act 1991. This will insert the following offences into the definition of category 2 offence--  an offence against section 31C of the Crimes Act 1958 (discharging a firearm reckless to safety of a police officer or a protective services officer) in circumstances where the offender's conduct created a risk to the physical safety of the victim or to any member of the public;  the offence of common assault committed in the circumstances referred to in section 320A(1) or (2) of the Crimes Act 1958 if the assault consisted of or included the direct application of force within the meaning of the definition of assault in section 31(2) of that Act. 8

Pursuant to section 5(2H) of the Sentencing Act 1991 this classification requires a court to impose a custodial order (other than a sentence of imprisonment imposed in addition to making a community corrections order) for these offences, unless the circumstances which are outlined in section 5(2H)(a) to (e) exist. Clause 8 inserts new paragraph (ea) into section 16(1A) of the Sentencing Act 1991 to provide that the presumption of concurrency provided by section 16(1) of the Sentencing Act 1991 does not apply to the new section 31C offence created by clause 3 of this Bill in circumstances where the offenders conduct created a risk to the physical safety of the victim or to any member of the public. Subclause (2) inserts a new paragraph (l) into section 16(1A) of the Sentencing Act 1991 to provide that the presumption of concurrency provided by section 16(1) of the Sentencing Act 1991 does not apply to the new section 320A(1) or (2) offence created by clause 4 of this Bill in circumstances where the assault consisted of or included the direct application of force within the meaning of the definition of assault in section 31(2) of the Crimes Act 1958. Subclause (3) inserts new section 16(3E) into the Sentencing Act 1991, which states that terms of imprisonment imposed on a person for the new offence against section 31C and for the offence of common assault in the circumstances referred to in new sections 320A(1) or (2) of the Crimes Act 1958 when committed in certain circumstances must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentences of imprisonment. Part 3--Drugs of dependence and commercial trafficking offence Division 1--Amendment of the Drugs, Poisons and Controlled Substances Act 1981 Clause 9 amends section 70(1) of the Drugs, Poisons and Controlled Substances Act 1981, which contains definitions for Parts V and VI of that Act. 9

Paragraphs (a) to (d) amend examples 1 and 3 at the foot of the definition of aggregated commercial quantity and examples 1 and 2 at the foot of the definition of aggregated large commercial quantity to reflect the new commercial quantities for "DIACETYLMORPHINE" (Heroin) under clause 15 of this Bill. Paragraph (e) inserts a definition of criminal organisation in section 70(1) of the Drugs, Poisons and Controlled Substances Act 1981. This term is used in clause 10 of this Bill, which establishes a new criminal organisation trafficking offence. The clause defines criminal organisation to mean--  an organisation that is a declared organisation under the Criminal Organisations Control Act 2012; or  an organisation that has 2 or more members, engages in systemic and continuing criminal activity which involves substantial planning, and has a purpose of obtaining profit, gain, power or influence through that criminal activity. Clause 10 establishes a new "aggravated" form of the offence of trafficking in a commercial quantity of a drug or drugs of dependence, where this offence is carried out for the benefit of, or at the direction of, a criminal organisation. The new offence is intended to strengthen Victoria's drug laws against organised crime and help stop organised crime groups benefitting from drug dealing. Subclause (1) substitutes new wording in section 71AA of the Drugs, Poisons and Controlled Substances Act 1981 to clarify that the existing offence of commercial trafficking in section 71AA is to operate subject to the new offence being inserted by subclause (2). Subclause (2) inserts new section 71AA(2) in section 71AA of the Drugs, Poisons and Controlled Substances Act 1981. This new section makes it an indictable offence for a person to traffic or attempt to traffic in a drug or drugs of dependence that is not less than the commercial quantity for the applicable drug or drugs, if the trafficking or attempted trafficking is for the benefit of or at the direction of a criminal organisation. In common with other drug offences in Part V of the Drugs, Poisons and Controlled Substances Act 1981, the new offence does not 10

apply to persons authorised to manufacture or sell applicable drugs of dependence for lawful purposes under the Drugs, Poisons and Controlled Substances Act 1981 or the Access to Medicinal Cannabis Act 2016. The penalty for the new offence is life imprisonment and a fine of up to 5000 penalty units. The penalty for the new offence is substantially higher than the maximum penalty for the existing offence of commercial trafficking, which is 25 years imprisonment and/or a fine of up to 3000 penalty units. This higher penalty is intended to reflect the more serious nature of the crime when it is carried out for the benefit of, or at the direction of, organised crime groups, because of the risks and harms to the broader Victorian community arising from organised criminal activity. By imposing the harshest possible penalty, the new offence is intended to provide the strongest deterrent to the involvement of organised crime groups in drug dealing. Subclause (3) substitutes the note at the foot of section 71AA of the Drugs, Poisons and Controlled Substances Act 1981 to clarify that the new offence is a category 1 offence under the Sentencing Act 1991 and a serious drug offence for the purposes of the Confiscation Act 1997. Clauses 20 and 21 of this Bill respectively deal with these changes. Clause 11 amends the note at the foot of section 79(1) of the Drugs, Poisons and Controlled Substances Act 1981 to clarify that where the offence of conspiring involves an offence against new section 71AA(2), it is a serious drug offence for the purposes of the Confiscation Act 1997. Clause 20 of this Bill deals with this change. Clause 12 subclause (1) amends the note at the foot of section 80(1) of the Drugs, Poisons and Controlled Substances Act 1981 to clarify that where the offence of inciting involves an offence against new section 71AA(2), it is a serious drug offence for the purposes of the Confiscation Act 1997. Clause 20 of this Bill deals with this change. Subclause (2) amends the note at the foot of section 80(3) of the Drugs, Poisons and Controlled Substances Act 1981 to clarify that where the offence of aiding, abetting etc. an offence outside Victoria involves an offence against new section 71AA(2), it 11

is a serious drug offence for the purposes of the Confiscation Act 1997. Clause 20 of this Bill deals with this change. Clause 13 inserts new section 147 in the Drugs, Poisons and Controlled Substances Act 1981 to deal with transitional matters to support the fair operation of the amendments to that Act. New section 147(1) clarifies that the amendments made to Schedule Eleven to the Drugs, Poisons and Controlled Substances Act 1981 by clauses 14(a), 15 and 16(a) of this Bill apply only to offences alleged to have been committed after the commencement of the applicable section. New section 147(2) clarifies that if such an offence is alleged to have been committed between 2 dates, one before and one on or after the commencement of the applicable section, the offence is alleged to have been committed before that commencement. Clause 14 amends the item relating to the drug of dependence 1,4-BUTANEDIOL (also known as 1,4-BD) in Part 3 of Schedule Eleven to the Drugs, Poisons and Controlled Substances Act 1981. The purpose of the amendments is to tighten provisions in the Drugs, Poisons and Controlled Substances Act 1981 against trafficking in 1,4-BD and provide stronger deterrence to trafficking in this drug. 1,4-BD is an industrial solvent that when ingested is rapidly metabolised to form gamma-hydroxybutyrate (GHB), a recreational drug that in small doses has a stimulating and disinhibiting effect, and that is also linked to drink spiking and sexual assault. Users of these drugs are at particular risk of overdose, due to the very small difference between the amount required to produce the desired effect and the amount that results in overdose. Paragraph (a) omits the phrase "and not for human consumption" from the description of 1,4-BD in Column 1 of Part 3 of Schedule Eleven. The aim is to tighten the wording of the exception to make it harder for drug traffickers to use the exception to avoid prosecution. Schedule Eleven lists drugs, classes of drugs and plants for the purposes of the definition of a drug of dependence, along with the corresponding quantities for the purposes of the offences in Part V of the Drugs, Poisons and Controlled Substances Act 1981. 1,4-BD is listed in Schedule Eleven as a drug of dependence except when it is for a lawful 12

industrial purpose and not for human consumption. The second part of the exception is an additional element that defendants are able to raise when attempting to claim the exception, but it is unnecessary, since "a lawful industrial purpose" is sufficient on its own to furnish the exception. Clause 16 of this Bill makes the same amendment in relation to the drug known as GBL, to maintain a consistent approach to the drugs substituted for GHB. Paragraph (b) substitutes "20 kg" for a nil quantity as the large commercial quantity (when mixed with another substance) for 1,4-BD in Column 1B of Part 3 of Schedule Eleven. As there is no large commercial quantity currently legislated for 1,4-BD, the most serious charge that may be laid at present for trafficking in 20 kg or more of this drug is a charge of commercial trafficking. The amendment will allow charges of large commercial trafficking to be laid and higher penalties to be imposed in such cases. Clauses 16 and 17 of the Bill make the same amendment in relation to the drugs GBL and GHB respectively, to maintain a consistent approach to GHB and the drugs substituted for it. Clause 15 substitutes the item related to the drug of dependence "DIACETYLMORPHINE" (Heroin) in Part 3 of Schedule Eleven to the Drugs, Poisons and Controlled Substances Act 1981, in order to amend 4 of the quantities shown for this drug. This clause lowers the pure and mixed commercial and large commercial traffickable quantities for heroin. The commercial quantities for trafficking in heroin are decreased from 250 grams to 50 grams of pure heroin and 500 grams to 250 grams of a mixture of heroin and another substance. The large commercial quantities for trafficking in heroin are decreased from 750 grams to 500 grams of pure heroin and 1 kilogram to 750 grams of a mixture of heroin and another substance. Heroin is highly addictive and dangerous, causes significant harm to users and is strongly featured in overdose death statistics. Lowering the commercial-level quantities for heroin will enable sentencing judges to take greater account of these harms when sentencing heroin traffickers. 13

Clause 16 amends the item relating to the dug of dependence GAMMA BUTYROLACTONE (also known as GBL) in Part 3 of Schedule Eleven to the Drugs, Poisons and Controlled Substances Act 1981. GBL is an industrial solvent that when ingested is rapidly metabolised to form GHB. Paragraph (a) omits the phrase "and not for human consumption" from the description of the drug GBL in Column 1 of Part 3 of Schedule Eleven. This is the same amendment as made by clause 14(a) of this Bill in relation to the drug 1,4-BD, to maintain a consistent approach to the drugs substituted for GHB. Paragraph (b) substitutes "20 kg" for a nil quantity as the large commercial quantity (mixed) for GBL in Column 1B of Part 3 of Schedule Eleven. This is the same amendment as made by clause 14(b) of this Bill in relation to the drug 1,4-BD, to maintain a consistent approach to the drugs substituted for GHB. Clause 17 substitutes "20 kg" for a nil quantity as the large commercial quantity (mixed) for the drug of dependence 4-HYROXYBUTANOIC (also known as GHB) in Column 1B of Part 3 of Schedule Eleven. This is the same amendment as made by clause 14(b) of this Bill in relation to the drug 1,4-BD, to maintain a consistent approach to GHB and the drugs substituted for it. Clause 18 substitutes wording in the new criminal organisation trafficking offence established by clause 10 of this Bill. The wording ensures the new offence will not apply to persons authorised to manufacture or sell applicable drugs of dependence for lawful purposes under the Voluntary Assisted Dying Act 2017 or the regulations under that Act. Similar exceptions are already included in new section 71AA(2) for persons authorised under the Drugs, Poisons and Controlled Substances Act 1981 and the Access to Medicinal Cannabis Act 2016. This extra exception will take effect upon commencement of clause 10 of this Bill if section 129 of the Voluntary Assisted Dying Act 2017 has already commenced or, if section 129 of that Act has not already commenced when clause 10 of this Bill commences operation, upon commencement of that section. 14

Division 2--Consequential amendment of other Acts Clause 19 makes consequential amendments to the Bail Act 1977 as a result of the new criminal organisation trafficking offence established by clause 10 of this Bill. Subclause (1) substitutes a new section number, "71AA(1)", for the existing section number relating to the offence of commercial trafficking in item 6(b) of Schedule 1 to the Bail Act 1977, to reflect the changes made by clause 11 of the Bill. Subclause (2) inserts new item 6(ba) in Schedule 1 to the Bail Act 1977. The effect is to add new section 71AA(2) to the list of drug offences in clause 6 of Schedule 1 for which bail must be refused, unless exceptional circumstances exist that justify the granting of bail. Subclause (3) inserts a reference to new item 6(ba) of Schedule 1 into item 6(e) of that Schedule. The effect of this amendment is to make conspiracy to commit an offence against section 71AA(2) an offence for which bail must be refused, unless exceptional circumstances exist that justify the granting of bail. Clause 20 makes consequential amendments to the Confiscation Act 1997 as a result of the new criminal organisation trafficking offence established by clause 10 of this Bill. Subclause (1)(a) inserts new paragraph (ab) in the definition of serious drug offence in section 3(1) of the Confiscation Act 1997, in order to add new section 71AA(2) of the Drugs, Poisons and Controlled Substances Act 1981 to the list of drug offences classed as serious drug offences under the Confiscation Act 1997. Where a person is convicted of a serious drug offence, the person is declared by the court to be a serious drug offender under section 89DI of the Sentencing Act 1991, and all property that the person has an interest in or has gifted to another person will be automatically forfeited under the Confiscation Act 1997. The offender may apply to the court for reasonable living and business expenses and courts may exclude property where they consider it just. Subclause (1)(b) inserts a reference to new paragraph (ab) in each of paragraphs (c), (d) and (e) in the definition of serious drug offence in section 3(1) of the Confiscation Act 1997. The subclause provides that when the offence of conspiring, the offence of inciting or the offence of aiding, abetting etc. 15

an offence outside Victoria under the Drugs, Poisons and Controlled Substances Act 1981 involves an offence against new section 71AA(2) of that Act, then that offence is a serious drug offence for the purposes of the Confiscation Act 1997. Subclause (2) substitutes a new section number, "71AA(1)", for the existing section number relating to the offence of commercial trafficking in Schedule 2 to the Confiscation Act 1997, to reflect the changes made by clause 10 of the Bill. Subclause (3) inserts new clause 1(aba) in Schedule 2 to the Confiscation Act 1997, in order to add new section 71AA(2) of the Drugs, Poisons and Controlled Substances Act 1981 to the list of drug offences in Schedule 2 to the Confiscation Act 1997. The listing of an offence in Schedule 2 to the Confiscation Act 1997 means that a person convicted of the offence may be subject to the "automatic forfeiture" regime in that Act, which provides for the proceeds of the offence to be forfeited to the State 60 days following an accused's conviction. It also means that the "civil forfeiture" regime applies to the offence. Under civil forfeiture, property that is reasonably suspected to be the proceeds of one or more Schedule 2 offences can be forfeited to the State, irrespective of whether a person has been charged or convicted of that offence. Subclause (4) further amends Schedule 2 to the Confiscation Act 1997 by amending clauses 1(d) and (e) to add a reference to paragraph (aba) (as inserted by subclause (3)) so that incitement to commit, or aiding, abetting, counselling or procuring of the commission outside Victoria of, an offence in the circumstances referred to in paragraph (aba) are also included in the list of drug offences in Schedule 2 to the Confiscation Act 1997. Clause 21 makes consequential amendments to the Sentencing Act 1991 as a result of the new criminal organisation trafficking offence established by clause 10 of this Bill. Subclause (1) inserts new paragraph (ja) in the definition of category 1 offence in section 3(1) of the Sentencing Act 1991, to add new section 71AA(2) of the Drugs, Poisons and Controlled Substances Act 1981 to the list of offences in that definition. A category 1 offence is an offence for which the court must impose a custodial sentence. 16

Subclause (2) substitutes a new section number, "71AA(1)", for the existing section number relating to the offence of commercial trafficking in the definition of category 2 offence in the Sentencing Act 1991, to reflect the changes made by clause 10 of this Bill. Subclause (3) substitutes a new section number, "71AA(1)", for the existing section number relating to the offence of commercial trafficking in Schedule 1 to the Sentencing Act 1991, to reflect the changes made by clause 10 of this Bill. Subclause (4) inserts new clause 4(a)(iia) in Schedule 1 of the Sentencing Act 1991, to add new section 71AA(2) of the Drugs, Poisons and Controlled Substances Act 1981 to the list of drug offences in clause 4 of that schedule. Schedule 1 lists serious offender offences, including drug offences, for the purposes of the Sentencing Act 1991. When sentencing an offender considered by a court to be a serious drug offender, the court may impose a sentence longer than one proportionate to the gravity of the offence for the purpose of protecting the community. Clause 22 makes consequential amendments to the Surveillance Devices Act 1999 as a result of the new criminal organisation trafficking offence established by clause 10 of this Bill. Paragraph (a) substitutes a new section number, "71AA(1)", for the existing section number relating to the offence of commercial trafficking in the definition of serious drug offence in the Surveillance Devices Act 1999, to reflect the changes made by clause 10 of this Bill. Paragraph (b) inserts new paragraph (aba) in the definition of serious drug offence in the Surveillance Devices Act 1999, in order to add new section 71AA(2) of the Drugs, Poisons and Controlled Substances Act 1981 to the list of drug offences in that definition. Under the Surveillance Devices Act 1999, law enforcement officers may apply for an emergency authorisation to use a surveillance device in circumstances where a serious drug offence has been or is about to be committed, and the circumstances are so serious and the matter of such urgency that the use of the surveillance device is warranted. 17

Paragraph (c) further amends the definition of serious drug offence in the Surveillance Devices Act 1999 by amending paragraphs (f) and (g) of that definition to add a reference to paragraph (aba) (as inserted by paragraph (b)) so that conspiring to commit, or inciting to commit, an offence in the circumstances referred to in paragraph (aba) are also included in the list of drug offences in that definition. Part 4--Interim closure notices and long-term closure orders Division 1--Amendment of the Second-Hand Dealers and Pawnbrokers Act 1989 Clause 23 inserts 3 new definitions into section 3(1) of the Second-Hand Dealers and Pawnbrokers Act 1989-- interim closure notice meaning a notice issued under section 26ZT(1) of that Act; long-term closure order meaning an order made under section 26ZU(4) of that Act; and serious criminal offence meaning an offence committed in Victoria that is punishable by 2 or more years of imprisonment. Clause 24 inserts a new Division 5 of Part 5 into the Act to provide for interim closure notices and long-term closure orders and matters associated with the issuing of these notices or the making of those orders. New section 26ZT relates to interim closure notices. New section 26ZT(1) allows the Chief Commissioner of Police to issue an interim closure notice, requiring that specified premises be closed in respect of any person carrying on business as a second-hand dealer at the premises in the following 2 situations. Firstly, where the Commissioner is satisfied on reasonable grounds that a person who is not a registered second-hand dealer, and who is not exempt from the requirement to be registered, is carrying on business as a second-hand dealer at the premises. Secondly, where the Commissioner reasonably suspects that a serious criminal offence is being committed at the business premises or storage premises of a registered second-hand dealer or a person exempt from the requirement to be registered. 18

New section 26ZT(2) provides that the interim closure notice must specify the premises, or the part of the premises, that are subject to the notice and must be served personally on the occupier of the premises, with a copy posted in a conspicuous place at the entrance of the premises. The notice takes effect as soon it is served on the occupier, and has the effect of prohibiting persons at the premises from carrying on business as a second-hand dealer and from altering the form of, or disposing of any second-hand goods for the period of the notice, which is 72 hours unless cancelled sooner by the Chief Commissioner of Police. New section 26ZT(3) provides that the Chief Commissioner of Police must not issue more than one interim closure notice for a single premises in any 7 day period, and not more than 3 in total in relation to a course of conduct that constitutes a serious criminal offence under section 26ZT(1)(b). New section 26ZU relates to long-term closure orders. New section 26ZU(1) allows the Chief Commissioner of Police to apply to the Magistrates' Court for an order that a particular premises ("the specified premises") be closed in respect of any person carrying on business as a second-hand dealer at the premises. New section 26ZU(2) provides that an application under new section 26ZU(1) must be made in accordance with the rules of court (if any). New section 26ZU(3) provides that the Chief Commissioner of Police must serve a copy of an application made under new subsection (1) on the occupier of the relevant premises as soon as practicable after the application has been made. New section 26ZU(4) allows the Magistrates' Court to make a long-term closure order closing the specified premises, or a part of those premises, in respect of any person carrying on business as a second-hand dealer at the premises in the following 2 situations. Firstly, where the Court is satisfied that a person who is not a registered second-hand dealer, and who is not exempt from the requirement to be registered, is carrying on business as a second-hand dealer at the premises. Secondly, where the Court is satisfied that a serious criminal offence has been committed or is likely to be committed at the business premises or storage premises of a registered 19

second-hand dealer or a person exempt from the requirement to be registered. New section 26ZU(5) requires the Magistrates' Court to determine the period that it considers appropriate for the closure order to be in force and to specify this in the order. New section 26ZU(6) provides that if the person who is carrying on business as a second-hand dealer at the premises did not appear in the proceeding, the Chief Commissioner of Police must personally serve any order made on the person and post a copy at the entrance of the relevant premises. If personal service of the order cannot be promptly effected, the Chief Commissioner may apply to the Magistrates' Court for substituted service in accordance with section 397 of the Criminal Procedure Act 2009. New section 26ZU(7) provides that an application for a long-term closure order can be made regardless of whether an interim closure notice has been issued for the specified premises. New section 26ZU(8) provides that if an interim closure notice is in force for the specified premises, the Magistrate's Court may cancel the notice if it considers that it should not have been issued or that there are no longer sufficient grounds for the notice to continue in force. New section 26ZU(9) provides that an interim closure notice in force for the specified premises ceases to have effect if a long-term closure order is made. New section 26ZV relates to the process for cancelling long-term closure orders. New section 26ZV(1) allows a person to apply to the Magistrates' Court for cancellation of a long-term closure order in force over premises occupied by that person. For the avoidance of doubt and without intending to limit the operation of new section 26ZV(1), an explanatory note at the end of the section clarifies that a person who becomes the owner of premises that are subjected to a longer term closure order may make an application under new section 26ZV. New section 26ZV(2) provides that an application under section 26ZV(1) must be made in accordance with the rules of court (if any). 20

New section 26ZV(3) requires the applicant for an order under new section 26ZV(1) to serve a copy of the application on the Chief Commissioner of Police as soon as practicable after the application has been made. New section 26ZV(4) requires the Magistrate's Court to cancel the order, upon application under section 26ZV(1), if the Court is satisfied that a material change in circumstances of the second-hand dealer means that the order is no longer appropriate, or that the basis for making the order no longer exists. New section 26ZW creates an offence to fail to comply with an interim closure notice or long-term closure order. New section 26ZW(1) provides for a penalty of 200 penalty units to apply to a person who commits the offence of knowingly or recklessly failing to comply with an interim closure notice or long-term closure order. New section 26ZW(2) imposes an evidential onus on the accused for the new offence under section 26ZW(1) for the person to present or point to evidence that they either did not know, or could not reasonably be expected to know that the notice or order was in force. If the accused does so, the prosecution must disprove that claim beyond reasonable doubt. Section 72 of the Criminal Procedure Act 2009 will apply to new section 26ZW(2). New section 26ZX provides that no compensation of any kind, including damages or any other form of monetary compensation is payable to any person in relation to an interim closure notice or long-term closure order. Clause 25 amends section 27(1) of the Second-Hand Dealers and Pawnbrokers Act 1989, which sets out the general circumstances in which notices and documents are deemed to have been served, subject to sections that specify alternative service requirements. The inserted references to sections 26ZT and 26ZU(6) have the effect of ensuring that the service requirements specified in sections 26ZT and 26ZU(6) apply instead of the general circumstances in section 27. Clause 26 amends section 31 of the Second-Hand Dealers and Pawnbrokers Act 1989, which relates to the making of regulations. The amendment clarifies the scope of the power to make regulations prescribing offences for which an 21

infringement notice may be issued, and the infringement penalties that apply. Subclause (1) amends section 31(1)(db)(ii) to inserts the words "including a different infringement penalty for natural persons and bodies corporate" to provide that regulations can prescribe different infringement penalties for the same offence depending on whether it is committed by an individual or a body corporate. This allows for differential infringement penalties to apply with respect to bodies corporate and individuals that are consistent with the Attorney-General's Guidelines made under the Infringements Act 2006. Subclause (2) repeals section 31(2A), which provides that the maximum infringement penalty that can be prescribed under subsection (1)(db)(ii) for an offence by a person must not exceed one-tenth of the maximum penalty to which the person would be liable for a first offence. Section 31(2A) has been superseded by the Attorney-General's Guidelines to the Infringements Act 2006, and is no longer necessary. The Attorney-General's Guidelines provide that infringement penalties should be no more than approximately 20 to 25 per cent of the maximum penalty for an offence. Clause 27 is a technical amendment to correct an oversight in the Justice Legislation Amendment (Protective Services Officers and Other Matters) Act 2017. It amends section 26ZB(1) of the Second-Hand Dealers and Pawnbrokers Act 1989, which gives authorised officers the power to serve an infringement notice in relation to an offence against certain sections. Section 23 of the Justice Legislation Amendment (Protective Services Officers and Other Matters) Act 2017 inserted new section 20(2) into the Act to create a new offence for a second-hand dealer to fail to keep accurate and complete records in the prescribed form and containing the prescribed information. The amendment made by this clause to section 26ZB(1) includes a reference to the specific offence against section 20(2) as an offence in relation to which an infringement notice may be served. 22

Division 2--Amendment of the Confiscation Act 1997 Clause 28 inserts new section 192 at the end of Part 18 of the Confiscation Act 1997 to provide transitional provisions for new item 15A to Schedule 1, as inserted by clause 29 of the Bill. New section 192(1) provides that item 15A of Schedule 1 only apply to offences committed on or after commencement of section 29 of the Justice Legislation Amendment (Police and Other Matters) Act 2019. New section 192(2) clarifies that an offence alleged to have been committed between 2 dates, one before and one on or after the commencement of section 29 of the Justice Legislation Amendment (Police and Other Matters) Act 2019, is alleged to have been committed before that commencement, for the purposes of subsection (1). Clause 29 inserts new item 15A into Schedule 1 to the Confiscation Act 1997. New item 15A makes an offence against any of the following provisions of the Second-Hand Dealers and Pawnbrokers Act 1989 a Schedule 1 offence for the purposes of the Confiscation Act 1997--  section 5(1) or (1A);  section 19A(1) or (2);  section 19B(1), (2) or (3);  section 22(2). The offence under section 5(1) or (1A) is committed when a person carries on a business as a second-hand dealer or pawnbroker without registration. The offence under section 19A(1) or (2) is committed when payment is accepted for scrap metal in cash. The offences under section 19B(1), (2) and (3) are committed when a person buys, disposes of or possesses unidentified motor vehicles. The offence under section 22(2) is committed when a person does not inform a police officer where they suspect that goods in their possession or which they have received may have been stolen. This amendment extends the power of a court to make a discretionary forfeiture order, regarding property used in the commission of serious criminal activity or obtained as a consequence of that activity, following the conviction of a 23

person for an offence under new item 15A of Schedule 1 of the Confiscation Act 1997. Division 3--Amendment of the Magistrates' Court Act 1989 Clause 30 inserts a new paragraph (ce) into section 16(1) of the Magistrates' Court Act 1989. This amendment ensures that the Chief Magistrate together with 2 or more Deputy Chief Magistrates may make rules of court in accordance with that section for or with respect to any matter or thing required or permitted by or under new Division 5 of Part 5 of the Second-Hand Dealers and Pawnbrokers Act 1989 to be dealt with by rules of court or otherwise necessary or required for the purposes of that Division. Part 5--Restorative engagement process Division 1--Amendment of the Victoria Police Act 2013 Clause 31 inserts a definition of restorative engagement process into section 3(1) of the Victoria Police Act 2013. The term is defined under section 174A(1). Clause 32 inserts new section 167(3A) into the Victoria Police Act 2013, to remove the requirement on a police officer or protective services officer (officer A) to make a complaint about the conduct of another police officer or protective services officer (officer B) when--  officer A has reason to believe that they have been a victim of discrimination, sexual harassment or victimisation (as defined in Part 4, 6 or 7 of the Equal Opportunity Act 2010) by officer B; or  officer A has reason to believe that their spouse or domestic partner, who is also a police officer or protective services officer, has been a victim of discrimination, sexual harassment or victimisation (as defined in Part 4, 6 or 7 of the Equal Opportunity Act 2010) by officer B. Subclause (2) inserts a note at the foot of section 167 of the Victoria Police Act 2013 alerting the reader that new section 174A of that Act states how section 167 applies in relation to a restorative engagement process. 24

Clause 33 inserts a note at the foot of section 168 of the Victoria Police Act 2013 alerting the reader that new section 174A of that Act states how section 168 applies in relation to a restorative engagement process. Clause 34 inserts a note at the foot of section 169 of the Victoria Police Act 2013 alerting the reader that new section 174A of that Act states how section 169 applies in relation to a restorative engagement process. Clause 35 inserts a new section 174A into the Victoria Police Act 2013. New section 174A(1) provides that the Secretary to the Department of Justice and Community Safety may establish a restorative engagement process, which is to be administered by a person or body independent of Victoria Police, to acknowledge and respond to an allegation by a member of Victoria Police personnel that the member is a victim of sex discrimination or sexual harassment by another member of Victoria Police personnel. New section 174A(2) provides that any information about the conduct of a police officer or protective services officer that is disclosed for the purpose of, or in the course of, a restorative engagement process does not trigger obligations under sections 167, 168 and 169 of the Victoria Police Act 2013 unless the participant who alleges that they are the victim of sex discrimination or sexual harassment consents to the information being dealt with as a complaint under sections 167, 168 and 169. New section 174A(3) clarifies that a participant in a restorative engagement process who alleges they are the victim of sex discrimination or sexual harassment may make a complaint under section 167 in relation to the alleged conduct at any time, including during the course of the restorative engagement process. New section 174A(1) does not designate the operations of the restorative engagement process nor restrict or limit participation in the restorative engagement process to police officers and protective services officers. Rather it provides that under the Victoria Police Act 2013 police officers and protective services officers who participate in the restorative engagement process are not mandated to report conduct disclosed in connection with the 25

restorative engagement process, given that they are the only persons designated by the legislation to report such misconduct. New section 174A(4) defines sex discrimination to be discrimination, as defined under the Equal Opportunity Act 2010 on the basis of any of the 9 attributes listed. New section 174A(4) also inserts a definition of sexual harassment into section 174A. The term has the same meaning as in the Equal Opportunity Act 2010. Clause 36 inserts section 185(2)(ca) into the Victoria Police Act 2013 and allows a restricted matter to be disclosed if it is for the purposes of, or in the course of, a restorative engagement process. Written consent of the person participating in the process who alleges that they are the victim of sex discrimination or sexual harassment must be gained before a matter is disclosed. Division 2--Amendment of the Protected Disclosure Act 2012 Clause 37 inserts after section 54(2)(d) of the Protected Disclosure Act 2012 a new subsection (2)(da) which allows assessable disclosure information to be disclosed for the purpose of, or in the course of, a restorative engagement process, with the written consent of the victim participating in the process. Part 6--Amendment of the Firearms Act 1996 Clause 38 amends section 3(1) of the Firearms Act 1996 to change the categorisation of lever action shotguns under that Act. A firearms categorisation generally dictates the genuine reason for possessing or using the firearm. Currently, lever action shotguns, irrespective of magazine capacity, are category A longarms, which is the lowest categorisation under the Firearms Act 1996. Lever action shotguns with a magazine capacity of no more than 5 rounds will be re-categorised as category B longarms and those with a capacity of more than 5 rounds will be category D longarms. This amendment gives effect to the Council of Australian Governments' decision of 9 December 2016 to reclassify lever action shotguns. 26

Clause 39 substitutes section 7C of the Firearms Act 1996, which currently provides for the offence of possessing a traffickable quantity of unregistered firearms. The amendment is to capture those instances where a person is possessing a trafficable quantity of firearms and the possession is not in accordance with the Act or the regulations made under that Act, irrespective of whether the firearm is registered or not under the Act. Section 7C(3) of the Firearms Act 1996 currently provides for the avoidance of double punishment by ensuring that if a person is convicted or found guilty of the possessing a traffickable quantity of firearms offence, they are not liable for other offences in the Firearms Act 1996 that prohibit the possession of unregistered firearms. New section 7C(2) expands that list to include other possession of longarm firearms offences, which apply to registered and unregistered firearms. Clause 40 amends section 35 of the Firearms Act 1996 which sets out the particulars that must be included in a firearms licence issued under that Act. Currently, section 35(1)(a) requires that the address of the licence holder is included in the physical hard plastic licence. The refreshed 2017 National Firearms Agreement, agreed through the Council of Australian Governments, removed this requirement. Therefore section 35(1)(a) of the Firearms Act 1996 will be amended to remove the requirement of the licence to state the holder's address. Clause 41 amends section 67 of the Firearms Act 1996 which sets out the particulars that must be included in a firearms dealers licence issued under that Act. Currently, section 67(1)(a) requires the address of the holder of the licence to be included in the physical hard plastic licence. The refreshed 2017 National Firearms Agreement, agreed through the Council of Australian Governments, removed this requirement. Therefore section 67(1)(a) of the Firearms Act 1996 will be amended to remove the requirement of the licence to state the holder's address. Clause 42 substitutes section 101A(1) and (2) of the Firearms Act 1996, which currently provides for the offence of a person, who does not hold a dealers licence, acquiring or disposing of a trafficked quantity of unregistered firearms. The amendment is to capture those instances where a person acquires or 27

disposes of a trafficable quantity of firearms and the acquisition or disposal is not in accordance with the Act or the regulations made under that Act, irrespective of whether the firearm is registered or not under the Firearms Act 1996. Clause 43 repeals a redundant reference in section 139 of the Firearms Act 1996, which sets out when the holder of a licence must notify the Chief Commissioner of a change in certain personal circumstances. Currently, under section 139(a), a licence holder must notify the Chief Commissioner of any change to the address which appears on the hard plastic licence. As the requirement for the address to appear on the licence is being removed by clauses 40 and 41 of this Bill, section 139(a) is redundant. Clause 44 inserts new sections 221 and 222 into Part 12 of the Firearms Act 1996, which provides for transitional arrangements under that Act. New section 221 provides for grandfathering arrangements for existing firearms licence holders who would otherwise be affected by re-categorisation of lever action shotguns in clause 38 of this Bill. New section 221(1) provides that a person in whose name a lever action shotgun was registered immediately before the commencement of clause 38 of this Bill and the possession, use or carriage of the shotgun was authorised at that time by their firearms licence, the person may continue to hold the shotgun under the existing licence (the category A longarm licence) unless the person also holds the licence that will apply to the lever action shotgun upon re-categorisation, in which case the lever action shotgun will be held under that licence. An exception applies in circumstances where the person does not hold a category D longarm licence and has a lever action shotgun that has been re-categorised as a category D longarm, but does hold a category B longarm licence, in which case the firearm will be held under the category B longarm licence. The lever action shotgun may only be used, possessed or carried for the genuine reason under the person's existing licence. If the person's licence is cancelled or otherwise lapses, the transitional arrangement no longer applies. The person will also lose the benefit of the transitional arrangement if the firearm is lost or stolen or destroyed or disposed of pursuant to the Firearms Act 1996. 28

New section 221(1)(c) provides that if a person had a permit to acquire a lever action shotgun the permit ceases to be in force unless the person's firearms licence authorises the possession/acquisition of the lever action shotgun under the re-categorisation in clause 38 of this Bill. New section 221(1)(d) provides that a person referred to in section 185(1), (2) or (2A) of the Firearms Act 1996 who holds an interstate licence that authorises the possession, carriage or use of a lever action shotgun is authorised under that licence to possess, carry or use the shotgun for the purposes set out in those subsections. New section 221(2) applies section 112(1) of the Firearms Act 1996 so that it is an offence for a person who holds a permit to acquire that ceases to be in force by operation of new section 221(1)(c) to not immediately surrender that permit to acquire to a police officer. New section 222 provides that the amendments in clauses 39 and 42 of this Bill to the offences of possession, acquisition or disposal of a traffickable quantity of firearms in section 7C and 101A of the Firearms Act 1996 only apply to offences alleged to have been committed after the commencement of those clauses. Clause 45 amends item 1 of Schedule 2 of the Firearms Act 1996, which provides for special conditions for a category A or B longarm licence. This clause amends Item 1(8) so that a Category B licence holder must not possess, carry or use a detachable magazine with a capacity greater than 5 shots in combination with a lever action shotgun. This is to avoid altering a lever action shotgun with a capacity of no more than 5 rounds from a category B firearm to a category D firearm. Clause 46 amends section 72 of the Firearms Act 1996 to correct a grammatical error. Section 72 provides for the information to be supplied when applying for a renewal of a firearms dealers licence. Currently, section 72(4)(b) provides that for a dealers licence held by a body corporate any new responsible persons must provide a full set of each person's fingerprints. That subsection will amend "persons" to the singular possessive form to clarify that the application must provide a full set of each responsible person's fingerprints. 29

Part 7--Amendment of the Sex Offenders Registration Act 2004 Clause 47 makes a minor technical amendment to section 1(1)(a)(ii) of the Sex Offenders Registration Act 2004. That section provides that one of the purposes of imposing reporting obligations under that Act is to facilitate the investigation and prosecution of any future offences that registrable offenders may commit. This clause omits the word "future" from section 1(1)(a)(ii) to clarify that information reported pursuant to those obligations is intended to facilitate the investigation and prosecution of offences committed by registrable offenders whether before or after the information was reported to police. Clause 48 amends section 63(2) of the Sex Offenders Registration Act 2004. Section 63(2) currently provides that the Chief Commissioner of Police must develop guidelines in relation to the accessing and disclosure of personal information in the Register that attempt to ensure that access to the personal information in the Register is restricted to the greatest extent possible without interfering with the purpose of this Act. The clause amends section 63(2) to provide that the guidelines developed by the Chief Commissioner of Police should be made to support access and disclosure of personal information in the Register occurring only to the extent authorised or permitted in accordance with the Act. The purpose of these changes is to allow personal information in the Register to be accessed and disclosed in accordance with the related amendments in clause 49 of this Bill, while still maintaining appropriate restrictions on the access and disclosure of that information. Clause 49 amends section 64 of the Sex Offenders Registration Act 2004. Subclauses (1) and (2) amend section 64(2) of the Sex Offenders Registration Act 2004. Section 64(2)(a) currently provides that the Chief Commissioner of Police or a person authorised to have access to the Register or any part of the Register may disclose personal information in the Register to a government department, public statutory authority or court for the purpose of law enforcement or judicial functions or activities. 30

Subclause (1) omits "law enforcement" as a purpose for disclosure of personal information in the Register under section 64(2)(a). Instead, subclause (2) inserts new a provision in section 64(2)(ab) of the Sex Offenders Registration Act 2004. This will enable the Chief Commissioner of Police or a person authorised to have access to the Register to disclose personal information in the Register for the purpose of the performance of a function of a law enforcement agency under any Act or law. This provides greater clarity for Victoria Police around the circumstances in which personal information on the Register may be disclosed to public statutory authorities (including to other members of police personnel within Victoria Police who do not have access to the Register), government departments and courts, including for investigative and intelligence purposes. This is because the functions of a law enforcement agency, such as Victoria Police, will be specified in the agencies governing Act or other Acts that impose functions on them. For example, section 9 of the Victoria Police Act 2013 provides that one of the functions of Victoria Police includes "preventing the commission of offences". It is intended that intelligence gathering and investigation in the performance of such a function would be captured by the new section 64(2)(ab) of the Sex Offender Registration Act 2004. Subclause (3) amends section 64(4) of the Sex Offenders Registration Act 2004 by inserting definitions for the terms, government department, law enforcement agency and public statutory authority for the purposes of section 64(2) of the Act. The definitions will provide that the meaning of government department and public statutory authority include government departments and public statutory authorities of a foreign jurisdiction. A foreign jurisdiction is already defined in section 3 of the Sex Offenders Registration Act 2004 to mean a jurisdiction other than Victoria (including jurisdictions outside Australia). This will mean, for instance, that a person with access to the Register may disclose information to a foreign government department or public statutory authority, such as New Zealand Police in accordance with section 64(2) of the Act. 31

Law enforcement agency will also be defined to mean Victoria Police or the police force or police service (however described) of a foreign jurisdiction. This definition is required to aid the interpretation of new section 64(2)(ab) as described above. Clause 50 amends the offence description in item 8A(iii) of Schedule 1 to the Sex Offenders Registration Act 2004. An offence listed in Schedule 1 is a Class 1 offence for the purposes of the Act, which means that persons sentenced for those offences, when aged 18 or over are placed on the Sex Offenders Register. Item 8A(iii) references section 272.10(1) of the Criminal Code of the Commonwealth which currently creates an offence described in the heading of that section as "aggravated offence-- child with mental impairment or under care, supervision or authority of defendant". The Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017, which is currently before the Commonwealth Parliament will broaden the offence and amend the heading of section 272.10 accordingly. Clause 50 amends item 8A(iii) of Schedule 1 to the Sex Offenders Registration Act 2004 so that the offence description is consistent with these proposed reforms. The commencement arrangements under clause 2 of the Bill ensure that clause 50 will not commence by default if the Commonwealth legislation is not passed. Clause 51 amends Schedule 2 to the Sex Offenders Registration Act 2004 to insert the new child sex offences added to the Criminal Code of the Commonwealth. Like the amendments in clause 50 of the Bill, the amendments to Schedule 2 are also to reflect amendments to the Criminal Code of the Commonwealth contained in the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017, which is currently before the Commonwealth Parliament. An offence listed in Schedule 2 is a Class 2 offence for the purposes of the Act, which means that persons sentenced for those offences, when aged 18 or over are placed on the Sex Offenders Register. Subclause (1) inserts proposed new sections 471.25A(1), (2) or (3) of the Criminal Code of the Commonwealth into a new item 28AC(viia) in Schedule 2 to the Sex Offenders Registration Act 2004. The offences set out in these sections 32

relate to a person using a postal or similar service to "groom" another person to make it easier to procure persons under 16. Subclause (2) inserts proposed new section 474.23A(1) of the Criminal Code of the Commonwealth into a new item 28A(ivaa) of Schedule 2 to the Sex Offenders Registration Act 2004. The offence in this section relates to engaging in conduct for the purposes of providing an electronic service used for child abuse material. Subclause (3) also amends item 28A of Schedule 2 of the Sex Offenders Registration Act 2004. Item 28A(ivc) currently references section 474.25B of the Criminal Code of the Commonwealth. Item 28A(ivc) references section 474.25B of the Criminal Code of the Commonwealth which currently creates an offence described in the heading of that section as "aggravated offence--child with mental impairment or under care, supervision or authority of defendant". The Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017, which is currently before the Commonwealth Parliament will broaden the offence and amend the heading of section 474.25B accordingly. Subclause (3)(a) amends item 28A(ivc) of Schedule 2 to the Sex Offenders Registration Act 2004 so that the offence description is consistent with these proposed reforms. Subclause (3)(c) inserts proposed new sections 474.27AA(1), (2) or (3) of the Criminal Code of the Commonwealth into a new item 28A(viii) of Schedule 2 to the Sex Offenders Registration Act 2004. The offences in these sections relate to using a carriage service to "groom" another person to make it easier to procure persons under 16 years of age. Clause 2 of the Bill provides that clauses 50 and 51 will come into operation on a day or days to be proclaimed. Clauses 50 and 51 will not be proclaimed until the Commonwealth Parliament passes the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017. The commencement arrangements under clause 2 of the Bill ensure that clause 50 will not commence by default if the Commonwealth legislation is not passed. 33

Part 8--DNA profile samples and senior police officer authorisations Part 8 introduces a new scheme for the taking of DNA profile samples in Subdivision (30A) of the Crimes Act 1958. This scheme is comprised of 3 elements--senior police authorisation of DNA profile samples from adults and children (aged 15 to 17 years) who are suspected of or charged with an indictable offence; senior police authorisation of DNA profile samples from adults after a finding of guilt, or a finding of not guilty because of mental impairment, for a DNA offence; senior police authorisation to take a DNA profile sample from certain adults and children who have previously provided a sample and, new oversight mechanisms governing the authorisation, use, retention and destruction of DNA profile samples. Division 1--Amendment of the Crimes Act 1958 Clause 52 defines terms which will be used in the Crimes Act 1958, once amended, and are inserted into section 464(2). Subclause (1) inserts the following definitions-- DNA person is defined to include an adult who is suspected of having committed or attempted to commit an indictable offence or who has been charged with or summonsed to answer to a charge for an indictable offence, or a child of or above the age of 15 years but under the age of 18 years who is suspected of having committed or attempted to commit a DNA sample offence, or has been charged with or summonsed to answer to a charge for a DNA sample offence. DNA profile sample defines the kinds of samples that may be taken by way of senior police officer authorisation or direction and includes a blood sample, a hair sample including the root if required (other than pubic hair), a saliva sample and a scraping taken from the mouth. The purpose specified for taking these samples must be to derive a DNA profile. For example, if a hair sample were required for some other forensic purpose, it would not fall within this definition but rather the definition of non-intimate sample in section 464(2) of the Crimes Act 1958. DNA sample offence means any indictable offence specified in Schedule 9. Schedule 9 is inserted into the Crimes Act 1958 by clause 78 of the Bill and includes a range of serious indictable offences. 34

IBAC is defined to have the same meaning given in the Independent Broad-based Anti-corruption Commission Act 2011. Senior police officer authorisation defines authorisations that may be made by a senior police officer for a DNA profile sample to be taken from a person who has been found guilty, or found not guilty because of mental impairment, of a DNA offence. DNA offence is defined in new section 464ZFAC to include an indictable offence or an offence specified in Schedule 8 of the Crimes Act 1958 or conspiring, inciting or attempting to commit one of these offences. Subclause (2) substitutes paragraph (b) of the definition of detained or protected person to include a prisoner in a prison or a person detained in a police gaol who is transferred to a facility or an institution referred to in section 56AB(1) of the Corrections Act 1986. New paragraph (ba) is also inserted into the definition to include a forensic patient or a forensic resident within the meaning of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Subclause (3) inserts the new term DNA profile sample into the definition of forensic procedure in section 464(2) to exclude DNA profile samples from forensic procedures. Subclause (4) substitutes paragraph (a) of the definition of related material and information to include DNA profile samples. This allows current use, retention and destruction provisions to apply to material and information collected and recorded when taking a DNA profile sample. Subclause (5) inserts new paragraphs (ab), (ac) and (ia) into the definition of serious offenders index to include in that index DNA profiles derived from forensic material taken from an offender registrable on the sex offenders register, adult offenders found guilty of a DNA offence, and adult suspects found guilty of the offence for which the sample was taken or procedure was conducted. Subclause (6) amends the definition of suspects index to include in that index DNA profile samples taken from adult and child suspects and those taken from an adult found not guilty of committing a DNA offence by way of mental impairment. 35

Clause 53 amends the heading before section 464R of the Crimes Act 1958 to clarify that those provisions also govern DNA profile samples. Clause 54 substitutes section 464S(3) of the Crimes Act 1958 to include a prisoner in a prison or a person detained in a police gaol who is transferred to a facility or an institution referred to in section 56AB(1) of the Corrections Act 1986. Clause 55 inserts new sections 464SC, 464SD, 464SE and 464SF into the Crimes Act 1958 to provide powers for an adult or a child to consent to provide a DNA profile sample or for a senior police officer to authorise the taking of a DNA profile sample from a DNA person. These powers largely mirror the provisions that provide for the conducting of a forensic procedure by consent or by a senior police officer authorisation of non-intimate forensic procedure. New section 464SC provides that a police officer must be satisfied of certain criteria before requesting that a DNA person give a DNA profile sample by way of informed consent. Whether the DNA person is an adult or a child, the police officer may only make a request for informed consent if he or she is satisfied that the taking of the sample is justified in all of the circumstances, which focuses on the ultimate issue that must be determined. This may require the police officer to consider a number of factors such as the circumstances of the alleged offending, the extent to which the DNA profile sample is likely to assist with the investigation, and the age, cognitive, physical or mental health of the person. In addition, the police officer must be satisfied of additional criteria. These criteria differ between adults and children, as discussed below. New section 464SC(1) provides that where the DNA person is an adult, in addition to the "justified in all the circumstances" criterion, the police officer must be satisfied that the person is suspected on reasonable grounds of having committed the indictable offence, has been charged with the indictable offence or has been summonsed to answer to a charge for the indictable offence. New section 464SC(2) provides that where the DNA person is a child, in addition to the "justified in all the circumstances" criterion, the police officer must be satisfied that the child is believed on reasonable grounds to have committed a DNA 36

sample offence or has been charged with a DNA sample offence, or has been summonsed to answer to a charge for the DNA sample offence. The higher threshold of belief on reasonable grounds is included as a safeguard for a DNA person who is a child as it will prevent vulnerable child suspects from being asked to provide their informed consent when there is only a suspicion about their involvement in a DNA sample offence. New section 464SC(3) provides the ways in which a DNA profile sample may be taken from a DNA person. To take a sample from a DNA person who is an adult, the person must give their informed consent, or a senior police officer may authorise the taking of a DNA profile sample under new section 464SE. To take a sample from a DNA person who is a child, the informed consent of both the child and their parent or guardian is required, or a senior police officer may authorise the taking of a DNA profile sample under new section 464SE. New section 464SD provides that a police officer must inform a DNA person, and if the DNA person is a child their parent or guardian, about certain matters prior to the adult, child or the child's parent or guardian being able to provide informed consent. New section 464SD(3) provides that the giving of that information must be recorded. New section 464SD(4) provides that a DNA person is taken as having refused consent if they are being held in a prison, police gaol or designated mental health service and they fail to give consent within 24 hours of receiving the information. A parent or a guardian of a child DNA person is also taken as having refused consent if they are incapable of giving informed consent by reason of mental impairment. New section 464SE provides that a senior police officer may authorise the taking of a DNA profile sample from a DNA person in certain circumstances. An authorisation may only be given by a senior police officer who is not involved in investigating the offence for which the sample relates and the DNA person must already be under lawful arrest or in the custody of an investigating official in accordance with a court order for questioning or investigation. New section 464SE(1) sets out the factors that the senior police officer must be satisfied of before providing an authorisation. 37

New section 464SE(1)(b) requires the senior police officer to be satisfied that the DNA person is not incapable of giving informed consent, a parent or guardian of a child is taken to have refused consent under new section 464SD(5) by reason of mental impairment. If this threshold is not met, a court order for a compulsory procedure would need to be sought under the existing provisions because the senior police officer could not make an authorisation. This is another safeguard to ensure that court oversight remains in circumstances involving vulnerable persons. New section 464SE(1)(c) and (d) require the senior police officer to be satisfied that the DNA person has refused to give informed consent. In the case of a DNA person who is a child, the senior police officer must be satisfied that both the child and the parent or guardian of the child have refused to give their informed consent. New section 464SD(5) that provides a parent or guardian is taken to have refused informed consent if they are incapable by reason of mental impairment. This will mean that where the parent or guardian of the child cannot be located, or are unavailable, a senior police officer would not be able to make an authorisation. New section 464SE(1)(e) and (1)(f) provide that the senior police officer must be satisfied that there are reasonable grounds to believe that the DNA person has committed the offence in respect of which the authorisation is sought. The higher threshold of reasonable grounds to believe is required for all DNA persons at the senior police officer authorisation stage to ensure that a senior police officer cannot make an authorisation in circumstances where there is insufficient evidence to arrest the suspect for the indictable offence or DNA sample offence (as the case requires). Finally, new section 464SE(1)(g) requires the senior police officer to be satisfied that the taking of the sample without the consent of the person is justified in all of the circumstances. This is an important safeguard and focuses on the ultimate issue that is to be determined by the senior police officer, which may require the senior police officer to consider a number of factors such as the circumstances of the alleged offending, the extent to which the DNA profile sample is likely to assist with the investigation, and the age, cognitive, physical or mental health of the person. 38

New section 464SE(2) provides that a senior police officer authorisation cannot be given if an application for a court order to undergo a forensic procedure has been refused in respect of the person on the same grounds or a senior police officer authorisation for the same person has been considered in relation to the same matter and not been given. New section 464SF requires that certain procedures be followed before a senior police officer may make an authorisation for the taking of a DNA profile sample. New section 464SF(1) provides that a DNA person, the parent or guardian of a DNA person who is a child or a DNA person's legal practitioner must be given a reasonable opportunity to inform the senior police officer considering whether to give an authorisation of any reasons why a DNA profile sample should not be taken. New section 464SF(2) requires that an authorisation be in writing and include the date and time of the authorisation and the grounds on which the authorisation was made. The note to this new subsection states that an authorisation by a senior police officer may be given electronically in accordance with the Electronic Transactions (Victoria) Act 2000. New section 464SF(3) provides that a copy of the authorisation must be provided in writing to the DNA person as soon as practicable and before the sample is taken. New section 464SF(4) requires a police officer to inform the DNA person orally and in person that an authorisation has been given, the date and time of the authorisation, the grounds for giving the authorisation, and that a police officer may use reasonable force to enable the taking of the DNA profile sample. New section 464SF(5) requires that the giving of the information be recorded and that recording be given to the DNA person, the DNA person's legal practitioner or, where a DNA person is a child and their legal practitioner is not known, their parent or guardian. When an authorisation is refused, new section 464SF(6) requires the senior police officer to inform, or cause another police officer to inform, the DNA person orally and give a written notice of the decision to the DNA person within 7 days of the refusal. 39

New section 464SF(7) clarifies that a failure to comply with the section does not invalidate an authorisation but does constitute non-compliance that may make the DNA profile sample inadmissible as part of the prosecution case in proceedings against the person for any offence in accordance with section 464ZE(1)(a) of the Crimes Act 1958. Clause 56 amends section 464Y of the Crimes Act 1958 to extend current caution requirements for forensic procedures to apply to the taking of a DNA profile sample. Clause 57 amends section 464Z of the Crimes Act 1958 to provide for the procedures for taking DNA profile samples and makes other amendments. Subclause (1) amends section 464Z(1) of the Crimes Act 1958 to enable the Chief Commissioner to authorise a person or class of persons to take non-intimate samples. Subclause (2) substitutes section 464Z(1A) of the Crimes Act 1958 to enable police officers or police custody officers to supervise the taking of a DNA profile sample that is a scraping from the mouth. Subclause (3) inserts new section 464Z(2A) into the Crimes Act 1958 and introduces a new requirement that all forensic procedures or DNA profile samples must be conducted or taken by the least intrusive and least painful method practicable in the circumstances. It is envisaged that this method will usually be a mouth scraping taken by the person, but in some circumstances a blood sample or hair sample may be less intrusive, less painful and more practicable and therefore preferred. Subclause (4) inserts new subsection 464Z(3AAA) into the Crimes Act 1958 and provides that DNA profile samples authorised to be taken from a DNA person must be taken by a medical practitioner or nurse of the same sex as the person from whom the sample is to be taken, where practicable. For a DNA person who is a child, the sample must be taken in the presence of the parent or guardian of the child, or an independent person if the parent or guardian of the child cannot be located. Subclause (5) inserts new subsections (3AC) and (3AD) into the Crimes Act 1958 and provides that where a DNA profile sample has been authorised to be taken from a person, that person may elect to take and provide a mouth scraping from their own mouth 40

if a police officer considers that process appropriate. Such an election must be recorded and a copy of the recording must be sent to the person or his or her legal practitioner. Clause 58 makes amendments to section 464ZA of the Crimes Act 1958 to include references to DNA profile samples within existing provisions for the execution of authorisation, directions and orders. Subclause (1) inserts new sections 464ZA(1)(ab) and 464ZA(1)(ac) into the Crimes Act 1958 to enable a police officer to use reasonable force to assist a medical practitioner, nurse or other person authorised to take a DNA profile sample that was authorised by a senior police officer under new sections 464SE and 464ZFAE. Subclause (2) inserts in paragraph (d) of section 464ZA(1) of the Crimes Act 1958 the new language associated with taking DNA profile samples in accordance with section 464ZFAB and inserts new section 464ZA(1)(e) to enable a police officer to use reasonable force to assist a medical practitioner, nurse or other person authorised to take a DNA profile sample that was authorised by a senior police officer under new sections 464ZFAC or 464ZFAE. Subclause (3) inserts language that is used for DNA profile samples in section 464ZA(2)(a) of the Crimes Act 1958. Subclause (4) inserts new section 464ZA(3A) into the Crimes Act 1958 which provides that a DNA profile sample other than a scraping from the person's mouth taken by that person must be recorded by audiovisual recording, if practicable or must be witnessed by an independent medical practitioner of independent nurse. Subclause (5) inserts into section 464ZA(6) of the Crimes Act 1958 references to new sections 464SE, 464ZFAC and 464ZFAE to include the new senior police authorisations in this subsection. Subclause (6) inserts language that is used for DNA profile samples in section 464ZA(6A) of the Crimes Act 1958. Subclause (7) substitutes sections 464ZA(7) and inserts new section 464ZA(8) of the Crimes Act 1958 in order to provide that a recording of the taking of a DNA profile sample or a compulsory procedure or a forensic procedure must be provided 41

to the person from whom the sample was taken without charge and as soon as practicable, but not more than 7 days after the sample was taken, and where that person is a child, a copy must also be provided to the parent or guardian of that child. Clause 59 inserts new section 464ZD(2) and (3) into the Crimes Act 1958 to extend existing requirements regarding the provision of forensic reports to require forensic reports to be provided to a person from whom a DNA profile sample has been taken or their legal practitioner, and if the person is a child, their parent or guardian. Clause 60 inserts a new heading to section 464ZE of the Crimes Act 1958 and subclause (2) amends section 464ZE to include references to DNA profile samples so that existing provisions governing when evidence obtained as a result of a forensic procedure is inadmissible also apply to DNA profile samples. Clause 61 substitutes the heading to section 464ZFAB to refer to DNA profile samples instead of forensic procedures. Subclauses (2), (3) and (4) substitute language that relates to forensic procedures with DNA profile samples. These amendments replace the power to direct that a registrable offender under section 3 of the Sex Offenders Registration Act 2004 undergo a forensic procedure with a power to direct that a DNA profile sample be taken from a registrable offender. This limits the types of samples that may be authorised to be taken from registrable offenders under section 464ZFAB to DNA profile samples. Clause 62 inserts new sections 464ZFAC, 464ZFAD and 464ZFAE into the Crimes Act 1958 to govern new police authorisation powers to take DNA profile samples from people found guilty, or found not guilty because of mental impairment, of a DNA offence or the taking of DNA profile samples from persons who have had a sample previously taken. New section 464ZFAC provides a new power for a senior police officer to authorise the taking of a DNA profile sample from certain adult offenders. New section 464ZFAC(1) defines a DNA offence as an indictable offence or an offence specified in Schedule 8, or any offence of conspiracy to commit, incitement to commit 42

or attempting to commit an indictable offence or a Schedule 8 offence. New section 464ZFAC(2) provides that a senior police officer may authorise the taking of a DNA sample from a person where--  the person is found guilty of a DNA offence, or found not guilty of a DNA offence, other than an offence heard and determined summarily, because of mental impairment under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; and  it is not more than 6 months after the final determination of an appeal against conviction or verdict or the expiration of any appeal period; and  the person is aged 18 years or older at the time of the finding of guilt or finding of not guilty because of mental impairment; and  the Chief Commissioner of Police does not already have a sample from the person that may be retained indefinitely. New section 464ZFAC(3) provides that where an authorisation to take a DNA profile sample from a person who is found guilty of a DNA offence has been given on a before expiry of an appeal period or before the final determination of an appeal against conviction for a finding of guilt of a DNA offence, the authorisation must not be carried out before the expiry of the appeal period or final determination of an appeal that upholds the conviction. New section 464ZFAC(4) provides the same in relation to findings of not guilty because of mental impairment. New sections 464ZFAC(5) and 464ZFAC(6) provide that if leave to appeal is sought after the expiry of an appeal period and a DNA profile sample has been authorised but not carried out, the authorisation must not be carried out unless leave to appeal is refused or the conviction or verdict is upheld on appeal. New sections 464ZFAC(7) provides that if an authorisation has been carried and leave to appeal is sought after the expiry of an appeal period, the sample and any related material must not be used for any purpose until the final determination of the appeal and if on appeal the conviction or verdict is set aside the sample must be destroyed. 43

New section 464ZFAC(8) provides that if, on appeal, the conviction or verdict is set aside, any pending authorisation ceases to have effect. New section 464ZFAC(9) requires an authorisation to be given in writing and signed by the senior police officer giving the authorisation. New section 464ZFAD provides a procedure for issuing a notice to attend where a senior police officer authorisation for taking a DNA profile sample has been made and the person is a relevant person, which is defined in new section 464ZFAD(1) to mean a person who is not a detained or protected person. The definition of detained or protected person is set out in section 464 of the Crimes Act 1958. New section 464ZFAD(2) provides that once a senior police officer authorisation has been given, a notice to attend must be attached to the authorisation and served on the person. The notice to attend will require the person to attend a specified police station within 28 days of the expiry of the relevant appeal period or the final determination of their appeal, or the service of the notice, whichever is the later. New section 464ZFAD(3) specifies the matters that must be included in the notice to attend including--  the date on which the authorisation was made  the kind of DNA profile sample that is to be taken  the name, rank and telephone number of the senior police officer who made the authorisation  that the Chief Commissioner of Police does not have a sample from the person that may be retained indefinitely  that if the person fails to comply with the notice, police may apply for a warrant to arrest the person without notice  that the person may wish to seek legal advice about the notice 44

 the name, rank and telephone number of the police officer serving the notice, and  that a police officer may use reasonable force to enable the sample to be taken. New section 464ZFAD(4) provides that the notice must be served in the same way as notices are served under section 464ZFAA(4) and (5) of the Crimes Act 1958, that is by delivering a true copy of the notice to the person personally, or leaving a true copy of the notice for the person at the person's last or most usual place of residence or business with a person who apparently resides or works there and who is apparently not less than 16 years of age, or posting the notice to the person at their last known place of residence or business. If service is by way of post, evidence of service must state the manner of ascertaining the address, and the time and place of posting. New section 464ZFAD(5) applies section 464ZFAA(6), (7) and (8) of the Crimes Act 1958 to a notice that has been served in accordance with this section. This will enable a police officer to apply to the Magistrates' Court for a warrant to arrest the person, and detain them for so long as is reasonably necessary to take the DNA profile sample, if the person does not attend in response to the notice. Before issuing a warrant, the magistrate or registrar must be satisfied by evidence on oath or by affidavit that a notice was served on a person lawfully, and the person has not had their DNA profile sample taken. New section 464ZFAD(6), (7) and (8) provide a procedure for when the notice to attend is not able to be served within the same 6 month period during which a senior police officer authorisation may be given, under new section 464ZFAC(2)(b). In these circumstances, a police officer may apply to the Magistrates' Court for a warrant within 28 days of the expiry of the period for serving the notice. Before issuing a warrant, the magistrate or registrar must be satisfied that reasonable attempts have been made to serve the notice and the notice was not served on the person and a DNA profile sample has not been taken from the person. New section 464ZFAD(9) applies section 464ZFA(2), (3), (4), (5), (6) and (7) of the Crimes Act 1958 to a warrant issued under new subsection (7) as if it were a warrant issued under section 464ZFA(1B). These subsections specify that a warrant 45

may be directed to a named police officer or all police officers, that it may be executed by any police officer, that the magistrate or registrar must give reasons for their decision to issue a warrant and cause a note of their reasons to be entered on the records of the court, that the warrant ceases to have effect immediately after the DNA sample profile is taken, and as soon as practicable after the execution of the warrant, the police officer must endorse the warrant and cause it to be lodged with a registrar of the Magistrates' Court. New section 464ZFAE provides that a senior police officer, on request from a police officer, may authorise the taking of a DNA profile sample from a person who has previously had a sample for the purpose of deriving a DNA profile taken from them. To make the authorisation, new section 464ZFAE(1) provides that the senior police officer must be satisfied that a previous sample was taken from the person in accordance with a lawful authority, and a forensic scientist has not derived a DNA profile from that sample. That is, this new power will not apply if, for example, the original sample has been lost. This is a limited power to authorise a further sample in circumstances where simply, the first sample was defective in some way. New section 464ZFAE(2) provides that if the senior police officer makes an authorisation, the senior police officer may serve, or cause to be served, a notice to attend on the person directing them to attend at a specified police station within 28 days of service of the notice. New section 464ZFAE(3) specifies the matters that must be included in the notice to attend including--  the date on which the authorisation was made  the kind of DNA profile sample that is to be taken  the name, rank and telephone number of the senior police officer who made the authorisation  that the Chief Commissioner of Police does not have a DNA profile sample from the person  that a DNA profile was not able to be derived by a forensic scientist from the sample 46

 that if the person fails to comply with the notice, police may apply for a warrant to arrest the person without notice  that the person may wish to seek legal advice about the notice  the name, rank and telephone number of the police officer serving the notice, and  that a police officer may use reasonable force to enable the sample to be taken. New section 464ZFAE(4) provides that this notice must be served by delivering a true copy of the notice to the person personally. Personal service is required in these circumstances because the person has already given a sample previously, and would not be expecting to have to provide a further sample. New section 464ZFAE(5) applies section 464ZFAA(6), (7) and (8) of the Crimes Act 1958 to a notice that has been served in accordance with this section. This will enable a police officer to apply to the Magistrates' Court for a warrant to arrest the person, and detain them for so long as is reasonably necessary to take the DNA profile sample, if the person does not attend in response to the notice. Before issuing a warrant, the magistrate or registrar must be satisfied by evidence on oath or by affidavit that a notice was served on a person lawfully, and the person has not had their DNA profile sample taken. Clause 63 amends section 464ZFB of the Crimes Act 1958 to include references to DNA profile samples so that existing provisions governing the retention of information following a finding of guilt apply to the retention of DNA profile samples. The existing provisions distinguish between samples taken from children and samples taken from adults. For a DNA profile sample taken from a DNA person who is a child and found guilty of the offence for which the sample was taken, a police officer must apply for a court order to retain the sample and related material and information. 47

Subclause (1) substitutes section 464ZFB(1AA)(a) of the Crimes Act 1958 to include reference to DNA profile samples taken from a person above the age of 18 years and new sections 464SC and 464SE. This will allow for DNA profile samples taken from adults in these circumstances to the retained indefinitely. Subclause (2) inserts DNA profile samples in section 464ZFB(1AA) of the Crimes Act 1958 at paragraphs (b)(i) and (b)(iii). Subclause (3)(a) inserts DNA profile samples taken from a DNA person who is a child in accordance with new section 464SC or 464SE in section 464ZFB(1)(a) of the Crimes Act 1958. Subclause (3)(b) and (c) inserts DNA profile samples in section 464ZFB(1) at paragraphs (b)(i) and (b)(iii) of the Crimes Act 1958. Subclause (4)(a) inserts DNA profile samples taken from a DNA person who is a child in accordance with new section 464SC or 464SE in section 464ZFB(1A)(a) of the Crimes Act 1958. Subclause (4)(b) and (c) inserts DNA profile samples in section 464ZFB(1A) of the Crimes Act 1958 at paragraphs (b)(i) and (b)(iii). Clause 64 amends section 464ZFD of the Crimes Act 1958, which provides that the Chief Commissioner may keep a DNA database system. Subclause (1) amends section 464ZFD(1) to provide that information (including information which may identify the person from whom a DNA profile sample was taken) obtained from the analysis of DNA profile samples taken in accordance with new sections 464ZFAC and 464ZFAE of the Crimes Act 1958 (inserted by clause 62 of this Bill), and which in accordance with Subdivision (30A) of the Crimes Act 1958 may be retained, may be included in the DNA database system. Subclause (2) amends section 464ZFD(2) of the Crimes Act 1958 to provide that information which may identify the person from whom a DNA profile sample was taken may not be retained and included in the DNA database system under that subsection. That is because section 464ZFD(2) only permits the retention of non-identifying information and inclusion on the DNA database system for statistical purposes. 48

Clause 65 amends section 464ZFE of the Crimes Act 1958 to require that the following additional information be included in the Chief Commissioner of Police's quarterly report to the Attorney-General--  the reason for the destruction of any sample listed in the report or in any previous report submitted under section 4644ZFE of the Crimes Act 1958 have been destroyed within the period to which the report relates;  if a sample has been destroyed, the date that the requirement to destroy it arose, the date of destruction and the name of the person who has destroyed it;  information on any DNA profile sample that has been retained for 12 months or more including the status of any investigation of the DNA person from whom the sample was taken;  information on forensic material taken from suspects in accordance with section 464R, 464T or 464U of the Crimes Act 1958 that has been retained for 12 months or more including the status of any investigation of the suspect from whom the forensic material was taken;  the number of authorisations given under new section 464SE of the Crimes Act 1958 (inserted by clause 55 of this Bill) within the period to which the report relates; and  the number of authorisations refused to be given under section 464SE of the Crimes Act 1958 (inserted by clause 55 of this Bill) within the period to which the report relates. Clause 66 amends section 464ZG of the Crimes Act 1958. That section requires that identifying information obtained from the conducting of a forensic procedure must be destroyed in certain circumstances. Clause 66 amends section 464ZG so that these rules also apply in relation to identifying information obtained from the taking of a DNA profile sample. 49

Clause 67 amends section 464ZGA of the Crimes Act 1958. That section requires that forensic information obtained from the conducting of a forensic procedure on a child must be destroyed if the person is not found guilty of any further offences before attaining the age of 26 unless certain circumstances listed in section 464ZGA(2) apply. Clause 67 amends section 464ZGA so that these rules also apply in relation to forensic information obtained from the taking of a DNA profile sample from a child. Clause 68 makes consequential amendments to section 464ZGE(11) of the Crimes Act 1958 to clarify that the safeguards that apply under section 464ZGE in relation to persons that provide forensic samples voluntarily do no prevent a police officer from requesting a person to give a DNA profile sample under new section 464SC of the Crimes Act 1958 or authorising the taking of a DNA profile sample from the person under new section 464SE of the Crimes Act 1958 (inserted by clause 55 of the Bill). Clause 69 makes a technical amendment to section 464ZGFB(4) of the Crimes Act 1958 by substituting "sample" for "DNA sample". This will ensure that all samples given voluntarily under section 464ZGFA of that Act are included within the requirements for destruction provided for in section 464ZGFB, not just DNA samples. Clause 70 amends the definition of excluded forensic material in section 464ZGG of the Crimes Act 1958 to insert all DNA profile samples taken from a person under new sections 464SC, 464SE, 464ZFAC or 464ZFAE of the Crimes Act 1958 (inserted by clauses 55 and 62 of this Bill). This ensures that a person does not commit an offence under section 464ZGG(3) if they supply forensic material to a person for analysis for the purpose of deriving a DNA profile from a DNA profile sample taken in accordance with these new provisions for inclusion in the DNA database. Clause 71 amends section 464ZGH of the Crimes Act 1958. Subclause (1) substitutes "the IBAC" for "the IBAC within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011" in section 464ZGH(2)(g)(iv). This is a technical amendment to reflect that clause 52 inserts a definition for the IBAC into section 464(2) of the Crimes Act 1958 for the purposes of Subdivision (30A) of that Act. 50

Subclause (2) inserts a new section 464ZGH(2)(ga) to enable the IBAC to access information stored on the Victorian DNA database for the purposes of investigating a complaint or performing its new functions under the Crimes Act 1958 as inserted by clause 76 of this Bill. Clause 72 amends section 464ZGK of the Crimes Act 1958. Consistent with clause 71(1) of the Bill, subclause (1) substitutes "the IBAC" for "the IBAC within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011" in section 464ZGK(2)(g)(iv). Subclause (2) inserts a new section 464ZGK(2)(ga) to enable the IBAC to disclose Victorian information stored on a DNA database for the purposes of performing its new functions under the Crimes Act 1958 as inserted by clause 76 of this Bill. Subclauses (3) and (4) make consequential amendments to section 464ZGK(3) to ensure that the circumstances in which a person may disclose Victorian information revealed by the carrying out of a forensic procedure apply to information revealed by the taking of a DNA profile sample. Clause 73 amends section 464ZH of the Crimes Act 1958. That section provides that no action lies against medical practitioners, nurses, midwives, dentists and other persons authorised under section 464Z of the Crimes Act 1958 or anyone assisting such persons in respect of anything they properly and necessarily do in the course of conducting any forensic procedure they believe on reasonable grounds was authorised under specified provisions of the Crimes Act 1958. Clause 73 expands this immunity provision so that it also applies where such persons are taking a DNA profile sample in accordance with sections 464SC, 464ZE, 464ZFAB, 464ZFAC or 464ZFAE of the Crimes Act 1958 (as inserted or amended by Part 9 of the Bill). Clause 74 amends section 464ZJ(1)(d) of the Crimes Act 1958 by inserting "taking DNA profile samples or" to provide that the Governor may make regulations for standards for taking DNA profile samples. Clause 75 inserts new section 464ZLA of the Crimes Act 1958 to provide for the validation of a sample taken in accordance with section 464ZFAB. 51

New section 464ZLA(1) defines commencement day to be the day on which clause 79 of this Bill comes into operation. New section 464ZLA(2) provides that any sample taken by way of a forensic procedure conducted on a registrable offender in a prison that was taken in accordance or purported to be conducted in accordance with section 464ZFAB prior to the commencement day are taken to not be unlawfully taken because the person taking the sample had no lawful authority to enter and remain in the prison. This is necessary because clause 79 of the Bill inserts new section 43A into the Corrections Act 1986 to provide a procedure for lawfully obtaining samples from people detained in a prison that was not previously available. Clause 76 inserts new sections 464ZM, 464ZN, 464ZO, 464ZP, 464ZQ, 464ZR and 464ZS into the Crimes Act 1958 to provide new oversight and investigation powers for the IBAC in relation to the new DNA profile sample powers inserted into the Crimes Act 1958 by Part 8 of this Bill. New section 464ZM sets out the functions of the IBAC within Subdivision 30A. The IBAC may monitor compliance by police officers, members of Victoria Police personnel or any other person who carried out a function or power in respect of the taking of a DNA profile sample, a senior police authorisation, an authorisation to take a further DNA profile sample under new section 464ZFAE or the Crimes Act 1958, or any matter on which the Chief Commissioner of Police is required to include in the quarterly report to the Attorney-General under section 464ZFE of the Crimes Act 1958. New section 464ZN requires that the Chief Commission of Police must report annually to the IBAC in relation to--  any DNA profile sample taken or senior police officer authorisation or authorisation given and applied for in the previous 12 months;  the destruction of any DNA profile sample taken or given in accordance with a senior police officer authorisation or authorisation in the previous 12 months; 52

 any matter on which the Chief Commissioner of Police is required to include in the quarterly report to the Attorney-General in the previous 12 months. The Chief Commissioner must provide such a report to the IBAC as soon as practicable after 1 January but no later than 1 March each year. New section 464ZN provides the Chief Commissioner's annual reports to IBAC must include--  a list that identifies by a unique identifying number every DNA profile sample taken or given in accordance with a senior police officer authorisation or authorisation under this Subdivision within the period to which the report relates;  information on whether any of the DNA profile samples listed in the report were taken from a child;  the date on which every DNA profile sample listed in the report was taken;  information on whether any of the DNA profile samples listed in the report or in any previous report submitted under this section have been destroyed within the period to which the report relates and the reason for the destruction of the sample;  if a DNA profile sample has been destroyed the date that the requirement to destroy it arose under section 464ZFC of the Crimes Act 1958, the date of destruction and the name of the person who destroyed it;  the number of senior police officer authorisations and authorisations under section 464SE or 464ZFAE of the Crimes Act 1958 given within the period to which the report relates;  the number of DNA profile samples taken by consent in accordance with section 464SC of the Crimes Act 1958 within the period to which the report relates; and 53

 the number of authorisations under section 464SE, senior police officer authorisations and authorisations under section 464ZFAE of the Crimes Act 1958 refused within the period to which the report relates; and  information on any DNA profile sample that has been retained for 12 months or more including the status of any investigation of the DNA person from whom the sample was taken within the period to which the report relates. New section 464ZO provides for the inspection of records by authorised officers. Section 464ZO(1) sets out definitions for the purpose of the section including definitions for--  authorised officer, which means the IBAC Commissioner or a sworn IBAC Officer authorised under subsection (2);  police personnel premises, which is defined in the Independent Broad-based Anti-corruption Commission Act 2011 to mean any premises, or the part of any premises, occupied by Victoria Police or members of Victoria Police personnel for the purposes of use as an office, a police station, a police gaol, a locker room, a command and control centre, an educational and training complex, a forensic laboratory, a storage facility or a special purpose facility, whether or not occupied by any other person or body, but does not include any residential premises; and  records, which is defined to include forensic material, records or recordings, whether in writing or in digital, audio or audiovisual form or otherwise, of the taking of a DNA profile sample by informed consent in accordance with section 464SC of the Crimes Act 1958 or an authorisation under section 464SE of that Act or senior police officer authorisation or authorisation under section 464ZFAE of that Act, and documents on a database. Section 464ZO(2) provides that the IBAC Commissioner may authorise a sworn IBAC Officer to exercise the powers of an authorised officer under section 464ZO. 54

Section 464ZO(3) provides that an authorised officer must, from time to time, inspect any records of Victoria Police or any other person or body that carried out a function or power for the taking of a DNA profile sample that the authorised officer considers necessary to determine the extent of compliance by a member of Victoria Police personnel or the person or body with Subdivision (30A) for the following--  the taking of a DNA profile sample by way of informed consent in accordance with new section 464SC of the Crimes Act 1958;  an authorisation under new section 464SE of the Crimes Act 1958;  a senior police officer authorisation;  an authorisation under new section 464ZFAE of the Crimes Act 1958;  any matter on which the Chief Commissioner is required to report on under section 464ZFE of the Crimes Act 1958. New section 464ZO(4) provides that authorised officers have the following powers for the purpose of conducting an inspection under section 464ZO. These powers include  the power to enter at any reasonable time police personnel premises or any premises occupied by any other person or body that carried out a function or power under Subdivision (30A) of the Crimes Act 1958 after notifying the Chief Commissioner of Police;  an entitlement to full and free access at all reasonable times to all records of Victoria Police or any other person or body that carried out a function or power under Subdivision (30A) that are relevant to the inspection; and  being able to require a member of Victoria Police personnel or a relevant person or body to give the authorised officer any information that the IBAC considers necessary, being information that is in that person's or body's possession, or to which the 55

person or body has access, and that is relevant to the inspection; and  the power to do anything that is necessary or convenient to be done to enable an inspection to be carried out under this section. New section 464ZO(5) provides that the Chief Commissioner of Police must ensure that members of Victoria Police personnel give an authorised officer any assistance that the authorised officer reasonably requires to enable the authorised officer to perform functions under section 464ZO. New section 464ZP requires the IBAC to report annually to the Attorney-General on the report given to the IBAC by the Chief Commissioner of Police under new section 464ZN of Crimes Act 1958, the results of each inspection of records conducted under new section 464ZO of that Act and any recommended about actions that should be taken in relation to a matter arising out of the report. Section 464ZP(2) provides that the Attorney-General must cause that report to be laid before each House of Parliament within 15 sitting days after the day on which the Attorney-General receives the report. New section 464ZQ provides that the IBAC may at any time make recommendations to the Chief Commissioner about actions that should be taken in relation to a matter arising out of the functions of IBAC under Subdivision (30A) of the Crimes Act 1958. Section 464ZQ(2) requires that within a reasonable time after receiving a recommendation under subsection (1), the Chief Commissioner must take the recommended action or, if the Chief Commissioner has not taken the recommended action or does not intend to take the recommended action, give a report to the IBAC stating the reason for not taking or intending to take the action. New section 464ZR clarifies that the Attorney-General may make a complaint to the IBAC under section 51 of the Independent Broad-based Anti-corruption Commission Act 2011 about the taking, use, retention or destruction of forensic material under Subdivision (30A) of the Crimes Act 1958. 56

New section 464ZS provides that the IBAC or a sworn IBAC Officer is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith in the performance of a duty or a function or the exercise of a power under Subdivision (30A) of the Crimes Act 1958 or in the reasonable belief that the act or omission was in the performance of a duty or a function or the exercise of a power under this Act. Section 464ZS(2) provides that any liability resulting from an act or omission that would, but for subsection (1), attach to the IBAC or a sworn IBAC Officer attaches instead to the State. Clause 77 inserts new section 635 into the Crimes Act 1958, which is a transitional provision. This section provides that amendments made to the Crimes Act 1958 by clauses 52, 53, and 55 apply to an offence alleged to have been committed before the day on which those clauses come into operation if a criminal proceeding in respect of the alleged offence has not commenced before that day, and to an offence alleged to have been committed on or after the day on which those clauses come into operation. That is, on commencement, the new senior police authorisations for taking DNA profile samples from DNA persons may apply to unsolved criminal investigations where a criminal proceeding has not yet commenced, but do not apply where a criminal proceeding has already commenced. This section also provides that amendments made by clause 62 apply to a person found guilty or not guilty because of mental impairment on or after the day on which that section comes into operation. Clause 78 inserts new Schedule 9 into the Crimes Act 1958 which sets out a list of offences for the purposes of the definition of DNA sample offence in section 464(2). DNA sample offences include a range of serious indictable offences and constitute those offences for which a child aged 15 to 17 years must be suspected of having committed, charged with, or summonsed to answer to a charge for, to come within the definition of DNA person. These offences are relevant to the new sections inserted by clause 55, which provide for the taking of DNA profile samples from DNA persons. 57

Division 2--Amendment of the Corrections Act 1986 Clause 79 inserts new section 43A into the Corrections Act 1986 to provide for access to a prison so that a DNA profile sample can be taken from a prisoner. New section 43A(1) provides that, with the permission of the Secretary or the Governor, a police officer accompanied by a registered medical practitioner or a nurse may enter and remain in a prison for the purpose of taking a DNA profile sample from a prisoner who is the subject of a DNA authority. New section 43A(2) provides that unless the Secretary or the Governor is satisfied a lawful authority exists for the taking of a DNA profile sample from the prisoner, the Secretary or the Governor must not give a police officer, a registered medical practitioner or a nurse permission for the sample under section 43A. New section 43A(3) provides that the Governor may give a police officer and any registered medical practitioner or nurse who accompanies the police officer a direction--  that is necessary for the management and good order and security of the prison; or  to leave the prison. New section 43A(4) defines DNA authority to be a direction given under section 464ZFAB of the Crimes Act 1958 and an authorisation given under section 464ZFAC of the Crimes Act 1958. New section 43A(4) also inserts a definition of DNA profile sample into section 43A. The term has the same meaning as in section 464(2) of the Crimes Act 1958. Division 3--Amendment of the Sex Offenders Registration Amendment (Miscellaneous) Act 2017 Clause 80 makes consequential amendments to the Sex Offenders Registration Amendment (Miscellaneous) Act 2017 as a result of amendments to samples that can be taken from registrable offenders established by clause 60 of this Bill. 58

Subclause (1) substitutes "undergo a forensic procedure" for "have a DNA profile sample taken" in section 53(2) of the Sex Offenders Registration Amendment (Miscellaneous) Act 2017 in proposed section 464ZFAB(10) of the Crimes Act 1958. Subclause (2) amends section 53(2) of the Sex Offenders Registration Amendment (Miscellaneous) Act 2017 in proposed section 464ZFAB(13) of the Crimes Act 1958 by substituting "undergo a forensic procedure" for "has a DNA profile sample taken" and substitutes in paragraph (a) "undergo the forensic procedure" for "have the DNA sample taken. Part 9--Amendment of other Acts Division 1--Confiscation Act 1997 Clause 81 inserts a new section 193 at the end of Part 18 of the Confiscation Act 1997. The new section 193 contains a transitional arrangement that makes it clear that the Confiscation Act 1997 applies to the new offences added to Schedule 1 and 2 by clauses 82 and 83 whether an offence is alleged to have been committed before or after the commencement of the amendment inserting them. Clause 82 inserts new offences after item 3 of Schedule 1 to the Confiscation Act 1997. The new offences are sections 158(1) and 158(3) of the Australian Consumer Law (Victoria). The offence under section 158(1) is committed when a person accepts payment or other consideration for goods or services and does not intend to supply the goods or services. The offence under section 158(3) is committed when a person accepts payment or other consideration for goods or services with the intention of supplying materially different goods or services. The scheme in the Confiscation Act 1997 provides for the forfeiture and restraint of property used in the commission of serious criminal activity or obtained as a consequence of that activity. A court can make a discretionary forfeiture order when a person has been convicted of an offence listed in Schedule 1. 59

Clause 83 inserts new clauses 11, 12 and 13 at the end of Schedule 2 to the Confiscation Act 1997. New clauses 11, 12 and 13 contain offences from the Australian Consumer Law (Victoria), the Conveyancers Act 2006 and the Estate Agents Act 1980, and include the circumstances in which those offences must have been committed for the offence to constitute a Schedule 2 offence for the purposes of the Confiscation Act 1997. New clause 11 specifies that where a single offence against sections 158(1) or (3) the Australian Consumer Law (Victoria) is charged, the value of the payment or consideration must be $50 000 or more. Where more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character, the combined value of the payments or consideration must be $75 000 or more. New clause 12 specifies that where a single offence against section 78(1)(a) or (b) of the Conveyancers Act 2006 is charged, the value of the deficiency or the money not paid must be $50 000 or more. Where more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character, the combined value of the deficiency or the money not paid must be $75 000 or more. New clause 13 specifies that where a single offence against section 91(1)(a), (b) or (c) of the Estate Agents Act 1980 is charged, the value of the moneys fraudulently converted, omitted to account for delivery or pay or the discrepancy in the account fraudulently rendered must be $50 000 or more. Where more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character, the combined value of the moneys must be $75 000 or more. The scheme in the Confiscation Act 1997 provides for the forfeiture and restraint of property used in the commission of serious criminal activity or obtained as a consequence of that activity. Automatic forfeiture of property occurs when a person is convicted of an offence listed in Schedule 2. 60

Division 2--Sentencing Act 1991 Clause 84 amends section 10AE of the Sentencing Act 1991 to correct a drafting error whereby an extra "of" was included in the provision. Clause 85 amends section 10A of the Sentencing Act 1991, which relates to special reasons relevant to imposing minimum non-parole periods, to correct minor errors to ensure the legislation operates as intended. Subclause (1) amends section 10A(2) of the Sentencing Act 1991 to avoid doubt that the requirements of section 10A are also applicable in relation to section 10AE of the Sentencing Act 1991. Section 10AE requires a term of imprisonment with a non-parole period to be applied in sentencing an offender for an offence against section 317AC or 317AD of the Crimes Act 1958, unless the offender was under 18 years at the time of the offence or unless the court finds a special reason under section 10A. Section 10A(2) lists the provisions to which section 10A applies, and this clause adds section 10AE to that list of provisions. Subclauses (2) and (3) amend section 10A(3)(ad) and (ae) of the Sentencing Act 1991 respectively. As currently drafted, section 10A(3)(ad) and (ae) refers to a sentence of imprisonment of not less than 3 years in relation to sections 10AC and 10AD of the Sentencing Act 1991. Subclauses (2) and (3) will change these references to refer to a non-parole period of not less than 3 years instead to reflect the wording in sections 10AC and 10AD. Subclause (4) inserts new paragraph (af) into section 10A(3) of the Sentencing Act 1991. New section 10A(3)(af) provides that in determining whether there are substantial and compelling reasons under section 10A(2)(e), the court must have regard to the Parliament's intention that a sentence of imprisonment should ordinarily be imposed and that a non-parole period of not less than 2 years should ordinarily be fixed for an offence covered by section 10AE of that Act. This insertion is analogous to the other paragraphs contained in section 10A(3), which refer to other provisions of the Sentencing Act 1991 for which there are minimum non-parole period provisions. 61

Clause 86 inserts a new section 169 in the Sentencing Act 1991. New section 169 is a transitional provision and provides that the amendments made by clause 85 of this Bill to section 10A of the Sentencing Act 1991 apply to a sentence imposed on or after the commencement of that clause irrespective of when the offence was committed. This is to ensure that the corrections to section 10A introduced by clause 85 have immediate effect once that clause commences. Clause 87 makes a statute law revision to section 16(1A) of the Sentencing Act 1991 to provide that paragraph (f) appears immediately after paragraph (e). Clause 88 makes statute law revisions to sections 160A, 161 (where second occurring), 163, 162, 164, 168 and 169 of Part 12 of the Sentencing Act 1991 to renumber these sections sequentially. Division 3--Victoria Police Act 2013 Clause 89 subclause (1) amends sections 28(5)(d), 32(6)(d), 39(5)(d) and 41(6)(d) of the Victoria Police Act 2013 to replace references to "maternity leave" with references to "parental leave of one month or more continuously". Subclause (2) amends the definition of excluded leave in the Victoria Police Act 2013 by replacing "maternity, paternity or parental leave" with a reference to only "parental leave". This amendment provides consistency with amendments under subclause (1). Division 4--Road Safety Act 1986 Clause 90 amends the definition of relevant offence in the Road Safety Act 1986 for the purposes of Part 6A--Impoundment, immobilisation and forfeiture of motor vehicles. The clause substitutes subparagraph (xvii) in paragraph (a) of the definition and repeals subparagraph (iv) from paragraph (b) of the definition to ensure that the offence of damaging an emergency service vehicle in section 317AG of the Crimes Act 1958 is dealt with in the same category of relevant offence as the offences of exposing emergency and other workers to risk by driving in sections 317AC, 317AD, 317AE and 317AF of the Crimes Act 1958. 62

Clause 91 amends section 103ZL of the Road Safety Act 1986 to correct incorrect section and subsection references. Clause 92 inserts new section 103ZLA in the Road Safety Act 1986. New section 103ZLA is a transitional provision and provides that the amendments made by this Bill to section 84C of the Road Safety Act 1986 by clause 90 of the Bill apply only to offences alleged to have been committed on or after commencement. Part 10--Repeal of amending Act Clause 93 provides for the automatic repeal of the Justice Legislation Amendment (Police and Other Matters) Act 2019 on the first anniversary of the first day on which all of its provisions are in operation. 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). 63

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