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JUSTICE LEGISLATION AMENDMENT BILL 2009

    Justice Legislation Amendment Bill
                    2009

                        Introduction Print

              EXPLANATORY MEMORANDUM


                              Clause Notes

                     PART 1--PRELIMINARY
Clause 1   sets out the purposes of the Bill. These are to--
                   amend various Acts to enable a search warrant under
                    those Acts to be made in relation to a particular vehicle
                    located in a public place. This overcomes an existing
                    limitation in the power to specify a particular vehicle in
                    a public place as the object of a search warrant made
                    under the Acts being amended;
                   amend the Drugs, Poisons and Controlled Substances
                    Act 1981 to enable any member of the police force to
                    execute a search warrant under that Act. This addresses
                    a current practical limitation in the power to execute
                    these warrants, whereby only the member named in the
                    warrant can execute it;
                   amend the Gambling Regulation Act 2003 to provide
                    for further exemptions and restrictions in relation to
                    gambling advertising. These amendments also require a
                    registered bookmaker to have a Responsible Gambling
                    Code of Conduct;
                   repeal sunset provisions in the Children, Youth and
                    Families Act 2005 to enable the Koori Court (Criminal
                    Division) to continue to operate;




561253                               1      BILL LA INTRODUCTION 31/3/2009

 


 

make an amendment to the annual reporting requirements under the Terrorism (Community Protection) Act 2003, to require an annual report under section 13 of that Act to be provided within 3 months of the end of the financial year. Clause 2 provides for the commencement of the Bill. The Bill commences on the day after it receives the Royal Assent, except for Part 2. Part 2 commences operation upon proclamation. This will allow for the making of associated regulatory changes consequent upon the amendments in that Part. Part 2 will commence on 1 October 2009 if it is not in operation before that date. PART 2--SEARCH WARRANTS Division 1--Amendment of the Crimes Act 1958 Clause 3 amends section 92 of the Crimes Act 1958, which provides for searches under warrant for stolen goods, to enable a search warrant to be made in relation to a particular vehicle in a public place. Clause 3(1) substitutes existing section 92(1) of that Act with new sections 92(1) and (1A). The effect of this amendment is to extend the existing power to grant a search warrant to provide a power to grant a warrant in relation to a particular vehicle in a public place. New section 92(1)(b) also makes it clear that the existing power to grant a search warrant in relation to a premises applies to any vehicle in or on those premises. This clarification has been included for the avoidance of doubt as a consequence of the new power to search a vehicle in a public place. Existing section 92(3) of the Crimes Act 1958 provides for powers of entry, search and seizure under a warrant granted under section 92. Clause 3(2) substitutes a new section 92(3) into the Crimes Act 1958 as a consequence of the amendment in clause 3(1). The effect of this amendment is to extend this provision to a particular vehicle located in a public place. Clause 3(3) inserts a new section 92(5) into the Crimes Act 1958 to define public place and vehicle as a consequence of the new power to search a vehicle in a public place. 2

 


 

Clause 4 amends section 317 of the Crimes Act 1958, which provides for searches under warrant for explosive substances, to enable a search warrant to be made in relation to a particular vehicle in a public place. Clause 4(1) inserts definitions of public place and vehicle into section 317(1) of the Crimes Act 1958 as a consequence of the new power to search a vehicle in a public place. Clause 4(2) makes some substitutions and an insertion to section 317(9)(a) of the Crimes Act 1958. The effect of these amendments is to extend the power to grant a search warrant in section 317(9) of that Act to include a power to grant a warrant in relation to a particular vehicle in a public place. Substituted section 317(9)(a) also makes it clear that the existing power to grant a search warrant in relation to a premises or place applies to any vehicle in or on the premises or place. This clarification has been included for the avoidance of doubt as a consequence of the new power to search a vehicle in a public place. Existing section 317(9)(b) of the Crimes Act 1958 provides for a power of arrest without warrant when executing a search warrant granted under section 317(9) of that Act. Clause 4(3) inserts a reference to a vehicle in a public place in section 317(9)(b) as a consequence of the amendments in clause 4(2). This extends the power of arrest without warrant to apply to a search of a vehicle in a public place. Clause 5 amends section 465 of the Crimes Act 1958, which provides for searches under warrant in relation to indictable offences, to enable a search warrant to be made in relation to a particular vehicle in a public place. Clause 5(1) makes some substitutions to section 465(1) of the Crimes Act 1958 to include references to a particular vehicle in a public place in that section. The effect of these amendments is to extend the power to issue a search warrant in section 465(1) of that Act to include a power to issue a warrant in relation to a particular vehicle in a public place. The substitution in clause 5(1)(a) also makes it clear that the existing power to issue a search warrant in relation to a building or place applies to any vehicle in the building or in or on the place. This clarification has been included for the avoidance of doubt as a consequence of the new power to search a vehicle in a public place. 3

 


 

Clause 5(2) inserts definitions of public place and vehicle into section 465 of the Crimes Act 1958 as a consequence of the new power to search a vehicle in a public place. Division 2--Amendment of the Drugs, Poisons and Controlled Substances Act 1981 Clause 6 amends section 81 of the Drugs, Poisons and Controlled Substances Act 1981, which provides for searches under warrant in relation to offences under that Act, to enable such a warrant to be issued in relation to a particular vehicle in a public place. This clause also makes amendments to enable any police member to execute a search warrant issued under that section, rather than only the member to whom the warrant is addressed. This addresses practical difficulties that could arise if only the named member can execute the warrant. Clause 6(1) amends section 81(1) of the Drugs, Poisons and Controlled Substances Act 1981 to include references to a particular vehicle in a public place. The effect of these amendments is to extend the power to issue a search warrant in section 81(1) of that Act to provide a power to grant a warrant in relation to a particular vehicle in a public place. The insertion in clause 6(1)(a) also makes it clear that the existing power to issue a search warrant in relation to land or premises applies to any vehicle on or in the land or premises. This clarification has been included for the avoidance of doubt as a consequence of the new power to search a vehicle in a public place. Clause 6(2) inserts a new section 81(1AA) into the Drugs, Poisons and Controlled Substances Act 1981. The effect of this new section is to empower any member of the police force to execute a warrant under section 81(1) of that Act, rather than only the member named in the warrant. Clause 6(3) makes a consequential amendment to section 81(1A) of the Drugs, Poisons and Controlled Substances Act 1981 as a result of the amendments to enable any police member to execute a warrant under section 81 of that Act. Section 81(1A) enables a magistrate to direct the applicant for a warrant to retain property that is tainted property within the meaning of the Confiscation Act 1997 in certain circumstances. The effect of the amendment in clause 6(3) is that such a direction can be given to the police member executing the warrant, rather than the police member who applies for the warrant. 4

 


 

Existing section 81(3) of the Drugs, Poisons and Controlled Substances Act 1981 empowers the member named in the warrant to undertake specified actions in executing it. Clause 6(4)(a) amends this section to empower any police member to undertake these actions as a consequence of the amendment in clause 6(2). Clauses 6(4)(b) to 6(4)(d) make a number of amendments to section 81(3) of the Drugs, Poisons and Controlled Substances Act 1981 as a consequence of the amendments in clause 6(1). The effect of the amendments is to extend the existing powers of entry, search and arrest when executing a warrant to apply to a warrant issued in relation to a particular vehicle located in a public place. Section 81(4) of the Drugs, Poisons and Controlled Substances Act 1981 currently requires the police member named in the warrant, after executing it, to endorse it and cause a report on its execution to be lodged with the court. Clause 6(5) substitutes a new section 81(4) as a consequence of the amendments in clauses 6(1) and 6(2). The new section requires the member who executed the warrant (rather than the member named in the warrant) to fulfil these obligations. The new section also specifies that in the case of a warrant executed on a vehicle in a public place, the report must be lodged at the court nearest to that public place. Section 81(5)(b) of the Drugs, Poisons and Controlled Substances Act 1981 provides for specified persons to inspect a report on the execution of a warrant where ordered by the court. Clause 6(6) amends this provision to include the owner of a vehicle in a public place on which a warrant was executed as a consequence of the amendment in clause 6(1). Clause 6(7) inserts new section 81(7) into the Drugs, Poisons and Controlled Substances Act 1981. This new section makes it clear that the amendments to the power to search under warrant under section 81 of that Act do not affect the powers under section 82 of that Act, for the avoidance of doubt. Section 82 provides for powers to undertake searches and other specified actions without a warrant. Clause 6(7) also inserts a new section 81(8) into the Drugs, Poisons and Controlled Substances Act 1981. This new section inserts definitions of public place and vehicle into section 81 of the Drugs, Poisons and Controlled Substances Act 1981 as a consequence of the new power to search a vehicle in a public place. 5

 


 

Clause 6(8) makes a consequential amendment to section 81A of the Drugs, Poisons and Controlled Substances Act 1981 as a result of the amendments to enable any police member to execute a warrant under section 81 of that Act. Section 81A requires the person to whom the warrant was issued who retains tainted property in accordance with a direction under section 81(1A) to give notice of that retention to persons with an interest in the property. This obligation currently applies to the applicant for the warrant under section 81. The effect of the amendment in clause 6(8) is to apply this obligation to the police member who executes the warrant. Clause 6(9) makes a related consequential amendment to section 81B of the Drugs, Poisons and Controlled Substances Act 1981. Section 81B enables the police member to whom a warrant under section 81 is addressed or another police member to apply to the court on the return of the warrant for a direction to retain property as if it were tainted property seized under the Confiscation Act 1997. Clause 6(9) amends this provision to apply to the member who executed the warrant, rather than the police member to whom the warrant was addressed. Clause 7 amends the search warrant form in Schedule Ten to the Drugs, Poisons and Controlled Substances Act 1981 as a consequence of the amendments to section 81 of that Act made by clause 6. The amendments to Schedule Ten reflect-- the new power to issue a search warrant in relation to a vehicle in a public place; the new power for any police member to execute a warrant addressed to a named police member. Division 3--Amendment of the Firearms Act 1996 Clause 8 inserts definitions of public place and vehicle into section 3(1) of the Firearms Act 1996 as a consequence of the new power to search a vehicle in a public place. Clause 9 amends section 146 of the Firearms Act 1996, which provides for searches under warrant in relation to offences under that Act, to enable such a warrant to be issued in relation to a particular vehicle in a public place. Existing sections 146(1) and 146(2) of the Firearms Act 1996 provide for search warrants to be applied for and issued, respectively, in relation to offences against that Act. Clauses 9(1) and 9(2) amend these sections to include references to a vehicle in a public place. The effect of these amendments is 6

 


 

to enable a search warrant under section 146 of that Act to be applied for and issued in relation to a particular vehicle in a public place. The amendment in clause 9(1) also makes it clear that the existing power to apply for the issue of a search warrant in relation to particular premises applies to any vehicle on or in those premises. This clarification has been included for the avoidance of doubt as a consequence of the new power to search a vehicle in a public place. Section 146(3) of the Firearms Act 1996 requires specified matters to be included in a search warrant issued under section 146 of that Act. Clause 9(3) amends this section as a consequence of the amendments in clauses 9(1) and 9(2). The effect of this amendment is that the vehicle in a public place to be searched must be stated in the warrant if it is issued for that purpose. Clause 9(4) inserts new section 146(6) into the Firearms Act 1996. This new section makes it clear that the amendments to the power to search under warrant in section 81 of that Act do not affect the powers under section 82 of that Act, for the avoidance of doubt. Section 82 provides for powers to undertake searches and other specified actions without a warrant. Clause 10 makes amendments to section 147 of the Firearms Act 1996 as a consequence of the amendments in clauses 9(1) and 9(2). Existing section 147 of the Firearms Act 1996 imposes an obligation to announce a proposed entry under a search warrant and afford an opportunity for a person at the premises to allow entry. The effect of clause 10 is to impose an equivalent obligation when entering a vehicle in a public place under a search warrant. Clause 11 amends section 148 of the Firearms Act 1996 as a consequence of the amendments in clauses 9(1) and 9(2). Section 148 of the Firearms Act 1996 currently requires the police member executing a search warrant to identify himself or herself to the occupier or person apparently representing the occupier and give that person a copy of the warrant. Clause 11(2) inserts a new section 148(2) to the Firearms Act 1996 to impose an equivalent obligation when executing a search warrant in relation to a vehicle located in a public place. This obligation will apply in relation to a person in charge of the vehicle. Clause 11(1) inserts a new heading to section 148 of the Firearms Act 1996 to reflect new section 148(2). 7

 


 

Division 4--Amendment of the Gambling Regulation Act 2003 Clause 12 inserts definitions of aircraft, public place, vehicle and vessel into section 1.3 of the Gambling Regulation Act 2003 as a consequence of the new power to search a vehicle in a public place. The terms public place, vehicle and vessel are currently defined in section 2.1.2 of the Gambling Regulation Act 2003 for the purposes of Chapter 2 of that Act, which provides for a general prohibition on gambling. These terms will now be defined in section 1.3 of the Gambling Regulation Act 2003, which provides for definitions of general application within the Act. This will mean that the inserted definitions will apply for the purposes of both existing Chapter 2 of the Gambling Regulation Act 2003, as well as the amended search warrant powers in Chapter 10 of that Act. Clause 13 repeals the existing definitions of public place, vehicle and vessel in section 2.1.2 of the Gambling Regulation Act 2003 as a consequence of the amendment in clause 12 to insert definitions of these terms in section 1.3 of that Act. Clause 14 amends section 10.5.12 of the Gambling Regulation Act 2003, which provides for searches under warrant in relation to an offence against a gaming Act or gaming regulations, to enable a search warrant to be made in relation to a particular vehicle in a public place. Clause 14(1) amends section 10.5.12(1) of the Gambling Regulation Act 2003 to insert references to a particular vehicle in a public place. The effect of these amendments is to extend the power to apply for a search warrant under that section to include a power to apply for a warrant in relation to a particular vehicle in a public place. The substitution in clause 14(1)(a) also makes it clear that the existing power to apply for the issue of a search warrant in relation to a particular premises includes any vehicle in the premises. This clarification has been included for the avoidance of doubt as a consequence of the new power to search a vehicle in a public place. Clause 14(2) amends section 10.5.12(2) of the Gambling Regulation Act 2003 to insert references to a vehicle in that section. This complements the amendment in clause 14(1) by empowering a search warrant to be issued in relation to a vehicle in a public place where such an application has been made under section 10.5.12(1) of the Gambling Regulation Act 2003. 8

 


 

Section 10.5.12(3) of the Gambling Regulation Act 2003 requires specified matters to be stated in a search warrant issued under section 10.5.12 of that Act. Clause 14(3) amends this section as a consequence of the amendments in clauses 14(1) and 14(2). The effect of this amendment is that the vehicle in a public place to be searched must be stated in the warrant if it is issued for that purpose. Clause 15 makes amendments to section 10.5.13 of the Gambling Regulation Act 2003 as a consequence of the amendments in clauses 14(1) and 14(2). Existing section 10.5.13 imposes an obligation to announce a proposed entry under a search warrant and afford an opportunity for a person at the premises to allow entry. The effect of clause 15 is to impose an equivalent obligation when entering a vehicle in a public place under a search warrant. Clause 16 amends section 10.5.14 of the Gambling Regulation Act 2003 as a consequence of the amendments in clauses 14(1) and 14(2). Section 10.5.14 currently requires the inspector executing a search warrant to identify himself or herself to the occupier or person apparently representing the occupier and give that person a copy of the warrant. Clause 16(3) inserts a new section 10.5.14(2) into the Gambling Regulation Act 2003 to impose an equivalent obligation when executing a search warrant in relation to a vehicle located in a public place. This obligation will apply in relation to a person in charge of the vehicle. Clauses 16(1) and 16(2) make associated amendments to the heading to section 10.5.14 of that Act and existing section 10.5.14 of that Act respectively. Clause 17 inserts new section 10.5.14A of the Gambling Regulation Act 2003. This new section makes it clear that the amendments to the power to search under warrant in Division 2 of Part 5 of Chapter 10 of that Act do not affect the powers under section 2.6.2 of that Act, for the avoidance of doubt. Section 2.6.2 provides for powers to undertake searches and other specified actions without a warrant in relation to instruments of betting. Division 5--Amendment of the Magistrates' Court Act 1989 Clause 18 makes some consequential amendments to section 78 of the Magistrates' Court Act 1989 as a result of the amendments in Part 2 of the Bill that provide for a new power to search under warrant a vehicle in a public place. 9

 


 

A number of the Acts amended by Part 2 of the Bill apply the rules relating to search warrants in the Magistrates' Court Act 1989 to search warrants made under the relevant Act. Existing section 78(1)(b)(i) of the Magistrates' Court Act 1989 provides for powers to break, enter and search a place named in the warrant when executing a warrant to search for a thing. Clause 18(1) amends this section to insert a reference to a vehicle. The effect of this amendment is that the power in section 78(1)(b)(i) applies to a warrant to search a vehicle in a public place in the same way it applies to a warrant to search a place. Clause 18(2) inserts a new section 78(7) into Magistrates' Court Act 1989 to define vehicle as a consequence of the amendment in clause 18(1). Division 6--Amendment of the Police Integrity Act 2008 Clause 19 inserts definitions of motor vehicle and public place into section 3 of the Police Integrity Act 2008 as a consequence of the new power to search a vehicle in a public place. As these terms are used in both the search warrant powers in section 93 of the Police Integrity Act 2008 and elsewhere in that Act, these definitions have been inserted in the general definitions provision in section 3. Clause 20 amends section 93 of the Police Integrity Act 2008, which provides for searches under warrant for the purpose of an investigation under that Act, to enable such a warrant to be issued in relation to a particular vehicle in a public place. Clause 20(1) substitutes a new section 93(1) into the Police Integrity Act 2008. Existing section 93(1) empowers the Director to apply for the issue of search warrant in relation to a particular premises. The effect of new section 93(1) is to provide for an equivalent power to apply for a search warrant in relation to a particular vehicle in a public place. New section 93(1) also makes it clear that the existing power to apply for the issue of a search warrant in relation to a particular premises includes any vehicle in the premises. This clarification has been included for the avoidance of doubt as a consequence of the new power to search a vehicle in a public place. Clause 20(2) substitutes a new section 93(2)(a) into the Police Integrity Act 2008 to complement the amendment in clause 20(1). Existing section 93(2)(a) of that Act authorises the entry and search of premises named in a search warrant. The effect of this amendment is to provide an equivalent power to enter and search a vehicle in a public place named in a search warrant. 10

 


 

Clause 20(3) inserts a new section 93(5) into the Police Integrity Act 2008 which provides for definitions of aircraft, vehicle and vessel as a consequence of the new power to search a vehicle in a public place. A vehicle is defined to include both an aircraft and a vessel. Clause 21 makes amendments to section 94 of the Police Integrity Act 2008, which provides for procedures when executing a warrant, as a consequence of the amendments in clauses 20(1) and 20(2). Section 94(1) of the Police Integrity Act 2008 currently requires a person executing a search warrant to announce a proposed entry under the warrant and give a person at the premises an opportunity to allow entry. Clauses 21(1) and 21(2) amend this obligation so that it also applies to the execution of a search warrant on a vehicle in a public place. This obligation will apply in relation to any person in or on the vehicle. Clause 21(3) makes a related change to section 94(2) of the Police Integrity Act 2008, which provides for an exception to this obligation in certain circumstances. Section 94(3) of the Police Integrity Act 2008 currently requires the person executing a search warrant to identify himself or herself to the occupier of premises if present and give the occupier a copy of the warrant. If the occupier is not present, section 94(4) of that Act requires the person executing the warrant to identify himself or herself and give a copy of the warrant to a person at the premises who is apparently over the age of 18. Clauses 21(4) and 21(5) insert new sections 94(3A) and 94(4A) into the Police Integrity Act 2008 respectively. These new sections impose obligations equivalent to those in sections 94(3) and 94(4) of that Act when executing a search warrant in relation to a vehicle located in a public place. These obligations will apply in relation to a person in charge of the vehicle and a person apparently over the age of 18 in or on the vehicle, respectively. If there is no person apparently over the age of 18 present at premises when a search warrant is executed, section 94(5) of the Police Integrity Act 2008 requires the person executing the warrant to leave a copy of it in a conspicuous place at the premises. This is subject to an exception in section 94(6) of that Act if the Director directs that this would be contrary to the public interest. Clauses 21(6) and (7) make consequential amendments to these provisions so that they similarly apply to a search warrant executed on a vehicle in a public place. 11

 


 

Division 7--Amendment of the Police Regulation Act 1958 Clause 22 inserts definitions of public place and vehicle into section 99 of the Police Regulation Act 1958 as a consequence of the amendments to that Act to provide a new power to search a vehicle in a public place. Clause 23 makes amendments to section 100 of the Police Regulation Act 1958 as a consequence of the amendments in clauses 24(1) and 24(2). Section 100(1) of the Police Regulation Act 1958 provides for powers of entry, search and seizure in certain circumstances, including in accordance with a warrant issued under section 100A of that Act. Section 100(2) of that Act sets out in further detail the powers of seizure that may be exercised. Clauses 23(1) and 23(2) make necessary consequential changes to these sections so that they apply to a search warrant issued under section 100A of the Police Regulation Act 1958 in relation to a vehicle in a public place. Clause 24 amends section 100A of the Police Regulation Act 1958, which provides for searches under warrant for the purpose of a relevant offence under that Act, to enable such a warrant to be issued in relation to a particular vehicle in a public place. Clause 24(1) amends section 100A(1) of the Police Regulation Act 1958 to insert references to a particular vehicle in a public place. The effect of these amendments is to extend the power to apply for a search warrant under that section to include a power to apply for a warrant in relation to a particular vehicle in a public place. The insertion in clause 24(1)(a) also makes it clear that the existing power to apply for the issue of a search warrant in relation to a particular place includes any vehicle in the premises. This clarification has been included for the avoidance of doubt as a consequence of the new power to search a vehicle in a public place. Clause 24(2) amends section 100A(2) of the Police Regulation Act 1958 to insert references to a vehicle in that section. This complements the amendment in clause 24(1) by empowering a search warrant to be issued in relation to a vehicle in a public place where such an application has been made under section 100A(1) of that Act. Clause 25 makes amendments to section 100B of the Police Regulation Act 1958 as a consequence of the amendments in clause 24. Existing section 100B(1) of the Police Regulation Act 1958 imposes an obligation to announce a proposed entry under a search warrant and afford an opportunity for a person at the place to allow entry. The effect of clause 25(1) is to impose an 12

 


 

equivalent obligation when entering a vehicle in a public place under a search warrant. This obligation applies in relation to any person in or on the vehicle. Section 100B(2) of the Police Regulation Act 1958 provides for an exception to the obligation in section 100B(1) in certain circumstances. Clause 25(2) makes a consequential amendment to this exception so that it similarly applies to a warrant to search a vehicle in a public place. Clause 26 amends section 100C of the Police Regulation Act 1958 as a consequence of the amendments in clause 24. Section 100C of the Police Regulation Act 1958 currently requires the police member executing a search warrant to identify himself or herself to the occupier of the place or a person representing the occupier, if present, and give that person a copy of the warrant. Clauses 26(2) and 26(3) amend section 100C of the Police Regulation Act 1958 to impose an equivalent obligation when executing a search warrant in relation to a vehicle located in a public place. This obligation, which is contained in new section 100C(2), applies in relation to a person in or on the vehicle. Clause 26(1) inserts a new heading to section 100C of the Police Regulation Act 1958 to reflect the amendments made in clauses 26(2) and 26(3). Division 8--Amendment of the Prostitution Control Act 1994 Clause 27 inserts a definition of vehicle in section 61A of the Prostitution Control Act 1994 as a consequence of the amendments to that Act to provide a new power to search a vehicle in a public place. Clause 28 amends section 61L of the Prostitution Control Act 1994, which provides for searches under warrant to monitor compliance with that Act or the regulations, to enable such a warrant to be issued in relation to a particular vehicle in a public place. Clause 28 amends sections 61L(1) and (2) of the Prostitution Control Act 1994 to insert references to a particular vehicle in a public place. The effect of these amendments is to extend the power to apply for and issue a search warrant under that section to include a power to apply for a warrant in relation to a particular vehicle in a public place. The insertion in clause 28(1) also makes it clear that the existing power to apply for the issue of a search warrant in relation to particular premises includes any vehicle on or in the premises. This clarification has been included for the avoidance of doubt as a consequence of the new power to search a vehicle in a public place. 13

 


 

Clause 29 makes amendments to section 61M of the Prostitution Control Act 1994 as a consequence of the amendments in clause 28. Existing section 61M(1) of the Prostitution Control Act 1994 imposes an obligation to announce a proposed entry under a search warrant and afford an opportunity for a person at the premises to allow entry. The effect of the amendments in clauses 29(1) and 29(2) is to impose an equivalent obligation when entering a vehicle in a public place under a search warrant. This obligation applies in relation to any person in or on the vehicle. Section 61M(2) of the Prostitution Control Act 1994 provides for an exception to the obligation in section 61M(1) in certain circumstances. Clause 29(3) makes a consequential amendment to this exception so that it similarly applies to a warrant to search a vehicle in a public place. Clause 30 inserts a new section 61NA into the Prostitution Control Act 1994 as a consequence of the amendments in clause 28. Section 61N of the Prostitution Control Act 1994 requires the inspector executing a search warrant to identify himself or herself to the occupier of premises if present and give the occupier a copy of the warrant. If the occupier is not present, the inspector must instead discharge these obligations in relation to another person (if any) present at the premises. New section 61NA imposes equivalent obligations equivalent to those in section 61N when executing a search warrant in relation to a vehicle located in a public place. These obligations will apply in relation to a person in charge of the vehicle, or otherwise in relation to a person in or on the vehicle if there is no person in charge of the vehicle. Clause 31 amends section 61P(1) of the Prostitution Control Act 1994 as a consequence of the amendments in clause 28. Existing section 61P empowers an inspector to issue an embargo notice to the occupier in certain circumstances when executing a search warrant. The effect of the amendment in clauses 31 is that, in the case of a search warrant executed on a vehicle in a public place, notice may be given to the person in charge of the vehicle. Clause 32 amends section 61T of the Prostitution Control Act 1994 as a consequence of the amendments in clause 28. Existing section 61T empowers an inspector to require specified assistance from the occupier of a premises when exercising a power of entry under a search warrant. The effect of the amendment in clause 32 is that where a warrant is executed on a 14

 


 

vehicle in a public place, the inspector can similarly require the assistance of the person in charge of the vehicle. Clause 33 amends section 63 of the Prostitution Control Act 1994, which provides for searches under warrant relating to contraventions of sections 22(1), 22(1A) or 24(1) of that Act, to enable such search warrants to be made in relation to a particular vehicle in a public place. Clause 33(1) substitutes a new section 63(1) into the Prostitution Control Act 1994. The effect of this new section is to enable a search warrant to be sought in relation to a particular vehicle in a public place for the purpose of searching for evidence of a contravention of sections 22(1), 22(1A) or 24(1) of the Prostitution Control Act 1994. Those sections impose offences for contravening licensing requirements under the Act. New section 63(1)(a) also makes it clear that the existing power to apply for the issue of a search warrant in relation to particular premises includes any vehicle on or in the premises. This clarification has been included for the avoidance of doubt as a consequence of the new power to search a vehicle in a public place. Clause 33(2) inserts new section 63(2A) into the Prostitution Control Act 1994. This new section empowers a magistrate to issue a search warrant in relation to a vehicle in a public place where such an application is made under new substituted section 63(1) of that Act. Clause 33(3) makes a consequential amendment to section 63(3) of the Prostitution Control Act 1994 to insert a reference to a vehicle as a consequence of the amendments in clauses 33(1) and 33(2). Clause 33(4) inserts a new section 63(7) into the Prostitution Control Act 1994 to make it clear that new section 63(1), which provides for a new power to apply for a search warrant in relation to a vehicle in a public place, does not affect the kinds of premises that may be licensed under that Act. Clause 33(4) also inserts new section 63(8) into the Prostitution Control Act 1994 to provide for a definition of vehicle as a consequence of the amendments in clauses 33(1) and 33(2). 15

 


 

Division 9--Amendment of the Surveillance Devices Act 1999 Clause 34 inserts a definition of public place in section 3(1) of the Surveillance Devices Act 1999 and amends the definition of vehicle in that section as a consequence of the amendments to that Act to provide a new power to search a vehicle in a public place. Clause 35 amends section 33(1) of the Surveillance Devices Act 1999, which provides for searches under warrant in relation to offences under that Act, to provide for a power to search under warrant a particular vehicle in a public place. Clause 35(1) amends section 33(1) of the Surveillance Devices Act 1999 to insert references to a particular vehicle in a public place. The effect of these amendments is to extend the power to apply for a search warrant under that section to include a power to apply for a warrant in relation to a particular vehicle in a public place. Clause 35(2) amends section 33(2) of the Surveillance Devices Act 1999 to insert references to a particular vehicle in a public place and substitute a new section 33(2)(b) that refers to a vehicle in a public place. The effect of these amendments is to extend the power to issue a search warrant under that section to include a power to issue a warrant in relation to a particular vehicle in a public place. Clause 35(3) inserts a reference to a vehicle in section 33(3)(b) of the Surveillance Devices Act 1999 as a consequence of the amendments in clauses 35(1) and 35(2). Clause 36 makes amendments to the obligations relating to announcement before entry in section 34 of the Surveillance Devices Act 1999 as a consequence of the amendments in clause 35. Clause 36(1) substitutes a new section 34(1) into the Surveillance Devices Act 1999. Existing section 34(1) of the Surveillance Devices Act 1999 imposes an obligation to announce a proposed entry under a search warrant and afford an opportunity for a person at the premises to allow entry. The effect of new section 34(1) is to impose an equivalent obligation when entering a vehicle in a public place under a search warrant. This obligation applies in relation to any person in or on the vehicle. 16

 


 

Section 34(2) of the Surveillance Devices Act 1999 provides for an exception to the obligation in section 34(1) in certain circumstances. Clause 36(2) makes a consequential amendment to this exception so that it similarly applies to a warrant to search a vehicle in a public place. Clause 37 inserts a new section 35A into the Surveillance Devices Act 1999 as a consequence of the amendments in clause 35. Section 35 of the Surveillance Devices Act 1999 requires the police member executing a search warrant to identify himself or herself to the occupier of premises if present and give the occupier a copy of the warrant. That section also requires the police member to give a copy of the warrant to any person to be searched under the warrant. New section 35A imposes obligations equivalent to those in section 35 of the Surveillance Devices Act 1999 when executing a search warrant in relation to a vehicle located in a public place. The obligation that applies in relation to an occupier under section 35 of that Act instead applies to a person in charge of the vehicle. PART 3--AMENDMENT OF THE CHILDREN, YOUTH AND FAMILIES ACT 2005 Clause 38 repeals sections 2(2), 2(3) and 605 of the Children, Youth and Families Act 2005. Those repealed sections provided for the Koori Court (Criminal Division) to cease on 1 July 2009. Repealing sections 2(2), 2(3) and 605 will result in the Koori Court (Criminal Division) being an ongoing Division of the Children's Court. PART 4--OTHER AMENDMENTS TO THE GAMBLING REGULATION ACT 2003 Clause 39 inserts a note at the bottom of section 2.5.6 of the Gambling Regulation Act 2003 (GRA) to advise that any exceptions to the operation of this section are detailed in section 2.5.16 of the GRA. Clause 40 inserts a new section 2.5.14A into the GRA which defines a wagering service provider. Clause 41 makes various amendments to 2.5.16 of the GRA with respect to the application and effect of 2.5.6 and 2.5.15 of the GRA which prohibit persons from advertising as to betting and restrict the publication of information concerning betting. 17

 


 

Subclause (1) and Subclause (2) amend a heading and a reference in section 2.5.16 to extend the operation of the exceptions detailed in this section to both sections 2.5.6 and 2.5.15 of the GRA. These exceptions had previously been linked to 2.5.15 of the GRA only. Subclause (3) broadens the operation of the exception detailed in 2.5.16(3) of the GRA. Particularly, wagering service providers (both in Victoria and interstate) will be permitted to advertise their identity and contact details, business services and the odds they are offering in respect of particular betting contingencies. This exception had previously applied to registered Victorian bookmakers only. Clause 42 inserts a new paragraph (ba) in 4.5A.2(2) of the GRA to require that an application for registration as a bookmaker, made by an individual or company, must be accompanied by a Responsible Gambling Code of Conduct. The code must in turn be implemented by an individual or company if they are registered by the Commission as a bookmaker. Clause 43 inserts a new paragraph (f) in section 4.5A.4(2) of the GRA to require that the Commission must, in determining whether to grant or refuse a bookmaker registration application, have regard to whether a Responsible Gambling Code of Conduct has been provided by the bookmaker which complies with any Ministerial directions or any other additional requirements. Subclause (1) makes a consequential amendment to accommodate the insertion of the new requirement. Subclause (2) inserts the new requirement by reference to sections 10.6.6 and 10.6.7 of the GRA. Section 10.6.6 provides the relevant powers to make Ministerial directions while section 10.6.7 outlines the additional requirements which apply to a Responsible Gambling Code of Conduct. Clause 44 inserts a new section 4.5A.10A into the GRA to make it a specific condition of registration that a bookmaker implement a Responsible Gambling Code of Conduct that has been approved by the Commission. Clause 45 amends section 4.5A.11 of the GRA to clarify that the Commission has powers to impose conditions of registration for registered bookmakers or bookmaker's key employees which are additional to any other conditions which might be imposed by the GRA. 18

 


 

Clause 46 amends section 4.5.A12(1) of the GRA to clarify that while the Commission has powers to amend conditions of registration for bookmakers and bookmaker's key employees, the power of the Commission to amend conditions does not extend to any conditions which may be imposed by the GRA. Clause 47 inserts a new paragraph (ea), in section 4.5A.14(1) of the GRA, to provide an additional ground for disciplinary action in relation to a registered bookmaker. The additional ground is that there have been repeated breaches by the registered bookmaker of the bookmaker's Responsible Gambling Code of Conduct. Clause 48 inserts a new section 4.7.1AA into the GRA to define gambling advertising and a wagering service provider. Clause 49 inserts new sections 4.7.8, 4.7.9 and 4.7.10 into the GRA. Each new section provides for a new offence in relation to advertising by wagering service providers. New section 4.7.8 requires wagering service providers to adhere to appropriate advertising standards. A wagering service provider must not publish or disseminate gambling advertising which encourages a breach of the GRA, depicts children wagering or involved in any other form of gambling, suggests that winning will be a definite outcome of participating in wagering or sports betting activities, suggests that participation in wagering or sports betting activities is likely to improve a person's financial prospects, promotes the consumption of alcohol while engaged in wagering or sports betting activities or is offensive. A breach of these standards is subject to a penalty of 20 penalty units. New section 4.7.9 requires wagering service providers to include a prescribed problem gambling statement in gambling advertisements. A wagering service provider must not publish or disseminate, or cause to be published or disseminated in the course of business, any gambling advertising in any form or by any method of communication unless the advertisement contains a prescribed statement (if any) in relation to problem gambling. A breach of this offence is subject to a penalty of 20 penalty units. New section 4.7.10 makes it an offence for a wagering service provider to offer any credit, voucher or reward as an inducement to open a betting account. A breach of this offence is subject to a penalty of 20 penalty units. 19

 


 

Clause 50 inserts a new paragraph (cb) in the definition of relevant person in section 10.6.5 of the GRA. This is a consequential amendment necessary to ensure that the powers to make Ministerial directions and specify the additional requirements which apply to a Responsible Gambling Code of Conduct (as detailed in 10.6.6 and 10.6.7 of the GRA) may be applied to a registered bookmaker. Clause 51 inserts new transitional arrangements by inserting a new Part 23 in Schedule 7 to the GRA. New clause 23.1 of Part 23 of Schedule 7 to the GRA provides a definition of commencement day as it applies to clause 44 of the amending Bill. Commencement day is defined as the day on which section 44 of the Amending Act comes into operation. Clause 44 inserts the new condition of registration (4.5A.10A) requiring bookmakers to implement a Responsible Gambling Code of Conduct that has been approved by the Commission. New clause 23.2 of Part 23 of Schedule 7 provides that the requirements of section 4.5A.10A will not come into effect until the day that is 6 months after the commencement day. This will provide for a 6 month transitional period, following the commencement of the Act, for bookmakers to prepare and implement a code of conduct and have this code approved by the Commission. Clause 52 makes a statute law revision amendment in section 2.5.16(1A)(b) of the GRA to reflect a change in the name of the relevant national racing body for harness racing. PART 5--AMENDMENT OF THE TERRORISM (COMMUNITY PROTECTION) ACT 2003 Clause 53 makes an amendment to more clearly specify the time frame within which an annual report must be submitted under section 13 of the Terrorism (Community Protection) Act 2003. Section 13(1) of that Act requires the Chief Commissioner of Police to provide an annual report to the Minister on specified information relating to the use of covert search warrants under Part 2 of that Act. Section 13(2) of that Act requires the report to be submitted to the Minister as soon as practicable after the end of the relevant financial year. Clause 53 amends section 13(2) of that Act to require this report to be given as soon as practicable but within 3 months after the end of the financial year. 20

 


 

PART 6--REPEAL OF AMENDING ACT Clause 54 provides for the automatic repeal of the Act on 1 October 2010. The repeal of the Act does not affect the operation of the amendments made by the Act, in accordance with section 15(1) of the Interpretation of Legislation Act 1984. 21

 


 

 


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