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JUSTICE LEGISLATION AMENDMENT (MISCELLANEOUS) BILL 2013

           Justice Legislation Amendment
              (Miscellaneous) Bill 2013

                         Introduction Print


               EXPLANATORY MEMORANDUM


                                   General
The Justice Legislation Amendment (Miscellaneous) Bill 2013 will amend
the Confiscation Act 1997, the Crimes Act 1958, the Criminal Procedure
Act 2009, the Public Prosecutions Act 1994, the Family Violence
Protection Act 2008, the Personal Safety Intervention Orders Act 2010,
the Racing Act 1958, the Road Safety Camera Commissioner Act 2011,
the Sentencing Act 1991, the Sentencing Amendment (Abolition of
Suspended Sentences and Other Matters) Act 2013, the Sex Work Act
1994 and the Summary Offences Act 1966.

                                Clause Notes

                       PART 1--PRELIMINARY
Clause 1    sets out the purposes of the Bill.

Clause 2    provides Parts 1, 2, 3, 4, 5, 8, 10, 11 and 12 and sections 24, 45,
            48, 49 and 50 come into operation on the day after the day on
            which the Bill receives the Royal Assent. Section 47 of the Bill
            comes into operation on the day that section 50 of the Sentencing
            Amendment (Abolition of Suspended Sentences and Other
            Matters) Act 2013 comes into operation. It is not intended that
            section 50 of that Act will be proclaimed to commence until this
            Bill has had passage by Parliament. The remaining provisions of
            the Bill will commence on a day or days to be proclaimed or, if
            not proclaimed, will come into operation on 30 November 2014.




571343                                 1     BILL LA INTRODUCTION 29/10/2013

 


 

PART 2--AMENDMENT OF THE CONFISCATION ACT 1997 Part 2 of the Bill clarifies the operation of the Confiscation Act 1997 following two recent court decisions, and makes some related and statute law revisions to that Act. Clause 3 amends section 20 of the Confiscation Act 1997 to clarify that the court does not have jurisdiction to extend the time to make an application for exclusion from restraint under section 20 in circumstances where the property has already been forfeited under the Act. This confirms the approach of the court in Taha v Director of Public Prosecutions [2011] VCC in interpreting the operation of sections 20 and 35 of the Confiscation Act 1997. Clause 4 makes a statute law revision amendment to section 23 of the Confiscation Act 1997. The amendment corrects an error in the cross-references in that section. Clause 5 clarifies the operation of section 35 of the Confiscation Act 1997, which provides for the automatic forfeiture of property after conviction, following the decisions in Taha v Director of Public Prosecutions [2011] VCC and Lemoussu v Director of Public Prosecutions [2012] VSCA 20. The effect of the decision in Taha was that an exclusion application made under section 20(1) of the Confiscation Act 1997 out of time is not a valid pending application for the purpose of section 35(2) unless the court has granted an extension of time under section 20(1B). The amendments in clause 5 are intended to reinforce that there must be a pending substantive application under section 20, and not a pending extension of time application under section 20 to defer the operation of automatic forfeiture. In Lemoussu, the court found that section 35(2) confers an independent right to apply for exclusion from restraint under section 20, outside of the time limits in section 20. The amendments in clause 5 clarify that section 35 is not intended to provide an independent right to seek exclusion from restraint, and any such application can be made only in accordance with section 20. Clause 5(1) removes the reference in section 35(2) to an application under section 20 being made within the period of 60 days referred to in section 35(1). This amendment is intended to reinforce that an application for exclusion from a restraining order made for the purpose of automatic forfeiture can only be 2

 


 

made in accordance with section 20, and that section 35(2) does not confer any right independent of section 20 to seek exclusion. However, it will not prevent an application for exclusion from restraint being made within the 60 day period referred to in section 35(1), where such application is made in accordance with section 20. For example, if a restraining order is made only after an accused is convicted, the accused or other parties claiming an interest in restrained property could make an application for exclusion from restraint within 30 days of notice of the restraining order or the making of the restraining order, as the case may be, in accordance with section 20(1A). If such an application is still pending at the expiry of the 60 days period referred to in section 35(1), section 35(2) will continue to apply in determining when the restrained property is forfeited. Clause 5(2) inserts new section 35(2A) to clarify when an application under section 20 is still pending for the purposes of sections 35(1) and (2) of the Confiscation Act 1997. This provision clarifies that an application under section 20 is still pending only where it is made within the 30 day period provided for in section 20(1A), or outside that period in accordance with an extension of time granted by the court under section 20(1B) and before the 60 day period in section 35(1) expires. If an extension of time for a late application under section 20(1B) has not been granted at the expiry of that 60 day period, the restrained property will be automatically forfeited. Clause 6 inserts new section 36B(1A) into section 36B of the Confiscation Act 1997, which provides for the circumstances in which an application for a tainted property substitution application can be made in an automatic forfeiture case. This amendment complements the related amendments in Part 2 of the Bill by clarifying that it is only a pending substantive application under section 20, and not a pending extension of time application, that enlivens section 36B. Clause 7 inserts new section 36U(3A) into section 36U of the Confiscation Act 1997, which provides for the making of an application for a 36V exclusion order in relation to property restrained for civil forfeiture. 3

 


 

This amendment complements the related amendments in Part 2 of the Bill by clarifying that the court does not have jurisdiction to extend the time to make an application for exclusion from restraint under section 36U in circumstances where the property has already been forfeited under the Act. Clause 8 inserts new section 38(1A) into section 38 of the Confiscation Act 1997, which provides for the determination of an application for a civil forfeiture order. This amendment complements the related amendments in Part 2 of the Bill by clarifying that only a pending substantive application under section 36V, and not a pending extension of time application, precludes the making of a civil forfeiture order under section 38(1). Clause 9 Subclause (2) inserts new section 40(5A) into section 40A of the Confiscation Act 1997, which provides for the making of an application for exclusion from a civil forfeiture order. This amendment complements the related amendments in Part 2 of the Bill by clarifying that the court does not have jurisdiction to grant leave under section 40A(3) or 40A(5) to apply for exclusion from a civil forfeiture order in circumstances where the property has already been disposed of under the Act. Subclause (3) amends section 40A(6) to require an application for exclusion under section 40A to notify a person prescribed for the purposes of section 44(1) of the application. This will ensure that the relevant prescribed persons who are responsible for disposing of forfeited property are aware of the application and can defer disposal where a valid exclusion application has been made. Clause 10 inserts new section 44(3A) into section 44 of the Confiscation Act 1997, which provides for the disposal of forfeited property. This amendment complements the related amendments in Part 2 of the Bill by clarifying that only a pending substantive post- forfeiture exclusion application, and not a pending application for leave to make such an application, prevents the Minister from disposing of forfeited property. 4

 


 

New section 44(7) inserted by subclause (2) also clarifies that the disposal of real property for the purposes of section 44 includes the creation of a contractual obligation to sell the property. Such an obligation would arise, for example, upon the exchange of executed contracts for the sale of real property. This clarifies that the Minister cannot enter into a contract of sale for real property if there is a pending substantive exclusion application of the kind referred to in new section 44(3A) on foot. New section 44(7) will also assist in making it clear when property has been disposed of in accordance with section 44 for the purposes of new section 40A(5), 49(3A), and 51(5A). Clause 11 inserts new section 44A into the Confiscation Act 1997 to empower the Minister or a person prescribed for the purposes of section 44(1) to issue a certificate of disposal. Such a certificate is proof that the property has been disposed of in accordance with section 44 in the absence of evidence to the contrary. This will avoid the need for the Minister or a prescribed person to give evidence in person of this fact in relevant cases where a person makes a post-forfeiture exclusion application under section 40A, 49 or 51. The fact of disposal would mean that the court lacks jurisdiction to make an exclusion order under these provisions, under the related amendments in Part 2 of the Bill. If an applicant for exclusion under section 40A, 49 or 51 wishes to contest the fact that forfeited property has been disposed of as specified in the certificate, it remains open to him or her to adduce contrary evidence. Clause 12 inserts new section 49(3A) into section 49 of the Confiscation Act 1997, which provides for the making of an application for exclusion from a forfeiture order. This amendment complements the related amendments in Part 2 of the Bill by clarifying that the court does not have jurisdiction to grant leave under section 49(3) or 49(5) to apply for exclusion from a forfeiture order in circumstances where the property has already been disposed of under the Act. Subclause (3) also amends section 49(4) to require an application for exclusion under section 49 to notify a person prescribed for the purposes of section 44(1) of the application. This will ensure that the relevant prescribed persons who are responsible for disposing of forfeited property are aware of the application and 5

 


 

can defer disposal where a valid exclusion application has been made. Clause 13 inserts new section 51(5A) into section 51 of the Confiscation Act 1997, which provides for the making of an application for exclusion from automatic forfeiture. This amendment complements the related amendments in Part 2 of the Bill by clarifying that the court does not have jurisdiction to grant leave under section 51(3) or 51(5) to apply for exclusion from automatic forfeiture in circumstances where the property has already been disposed of under the Act. Subclause (3) also amends section 51(6) to require an application for exclusion under section 51 to notify a person prescribed for the purposes of section 44(1) of the application. This will ensure that the relevant prescribed persons who are responsible for disposing of forfeited property are aware of the application and can defer disposal where a valid exclusion application has been made. Clause 14 makes a statute law revision to correct an error in the transitional provision in section 186(1) of the Confiscation Act 1997. The amendment ensures that the transitional provision applies to some additional offences inserted in Schedule 2 to the Act by the Sex Work and Other Acts Amendment Act 2011, which were omitted from section 186(1) due to an oversight. PART 3--AMENDMENT OF THE CRIMES ACT 1958 Part 3 of the Bill will extend protection from criminal responsibility under section 68 and 70 of the Crimes Act 1958 to staff within the Office of the Director of Public Prosecutions, certain persons involved in prosecutorial duties and certain staff from the Department of Justice, who are required to possess and produce child pornography material in the exercise of a duty or performance of a function of their employment. This protection is necessary for staff within the Office of Public Prosecutions and other associated persons who are regularly required to print, reproduce and otherwise deal with child pornography used as evidence in a trial. It is also necessary to protect authorised staff from the Department of Justice who are required to review and reproduce this material in order to monitor compliance with parole orders, supervision orders and community correction orders. 6

 


 

Clause 15 inserts new subsections (3) and (4) into section 68 of the Crimes Act 1958 to provide that certain persons do not commit an offence under section 68 in the specified circumstances. New subsection (3) provides that staff within the Office of the Director of Public Prosecutions and other persons involved in prosecutorial duties do not commit an offence under section 68 if they are required to print or otherwise make or produce child pornography in the exercise or performance of a power, function or duty conferred or imposed on them under the Public Prosecutions Act 1994 or any other Act or common law. New subsection (4) provides that staff of the Department of Justice authorised by the Secretary do not commit an offence under section 68 if they are required to print or otherwise make or produce child pornography for the purposes of their official duties. Clause 16 inserts new subsections (5) and (6) into section 70 of the Crimes Act 1958 to provide that certain persons do not commit an offence under section 70 in the specified circumstances. New subsection (5) provides that staff within the Office of the Director of Public Prosecutions and other persons involved in prosecutorial duties do not commit an offence under section 70 if they have in their possession, child pornography in the exercise or performance of a power, function or duty conferred or imposed on them under the Public Prosecutions Act 1994 or any other Act or common law. New subsection (6) provides that staff of the Department of Justice authorised by the Secretary do not commit an offence under section 70 if they have in their possession, child pornography for the purposes of their official duties. PART 4--AMENDMENT OF CRIMINAL PROCEDURE ACT 2009 Clause 17 amends section 177 of the Criminal Procedure Act 2009 to remove the word "personally" from 177(1)(b) and 177(4) of that Act. This will enable the Director of Public Prosecutors to delegate to the Chief Crown Prosecutor or a Senior Crown Prosecutor, the power to discontinue a prosecution. This amendment will avoid the procedural difficulties associated with requiring a personal signature from the Director in circumstances where he or she has not participated in the decision-making process leading to a discontinuance. 7

 


 

PART 5--AMENDMENT OF PUBLIC PROSECUTIONS ACT 1994 Clause 18 removes section 30(1)(b) of the Public Prosecutions Act 1994 and substitutes section 30(3) so that the Director of Public Prosecutions may by instrument, delegate to the Chief Crown Prosecutor or to a Crown Prosecutor, his or her power to give any authority, sanction or consent required by or under any Act for the commencement of a criminal proceeding. Under the current section 30(3) of the Public Prosecutions Act 1994, the Director is able to delegate his power to give any authority, sanction or consent for a small number of criminal offences. These amendments simply expand this delegation power. Clause 19 repeals section 31(4) of the Public Prosecutions Act 1994 so the Governor no longer has the ability to appoint a Senior Crown Prosecutor to the position of Senior Crown Prosecutor (Major Trials). This amendment is necessary to ensure any reference to the redundant position of Senior Crown Prosecutor (Major Trials) is removed from the Act. Clause 20 substitutes section 32(3A) of the Public Prosecutions Act 1994 with new section 32(3A) and 32(3B). These amendments will clarify that a Crown Prosecutor who is a Director of Public Prosecutions under the law of another State or Territory; or a member of staff of the office of that Director who is an Australian lawyer; or a Crown Prosecutor appointed under the law of another State or Territory may be appointed as a Crown Prosecutor in Victoria. The current section 32(3A) limits the category of persons who can be appointed under this subsection to Directors in other jurisdictions and members of staff who are legal practitioners. This amendment will expand the category of persons to also include members of staff who are Australian lawyers; and to Crown Prosecutors who are independent statutory office holders. New Subsection 32(3B) clarifies that a person continues to be appointed under section 32(3A) for a period of time specified in their instrument of appointment, but not exceeding 20 years or until the person ceases to be a person referred to in subsection 32(3A). This amendment limits the amount of time a person can 8

 


 

act as a Crown Prosecutor so that they do not remain appointed indefinitely. Clause 21 inserts a new section 35A in the Public Prosecutions Act 1994 so that a Senior Crown Prosecutor is able to act as a Chief Crown Prosecutor in circumstances where the Chief Crown Prosecutor is acting as the Director of Public Prosecutions in accordance with section 19B(1) of that Act. Under section 19B(1) the Chief Crown Prosecutor is able to act as the Director when the office of the Directors is vacant; or the Director is absent from duty, or is for any other reason unable to carry out his duties of the office. The Chief Crown Prosecutor can only act in this position if the Governor in Council has not appointed an Acting Director of Public Prosecutions. An Acting Chief Crown Prosecutor will be appointed in similar terms to an Acting Director of Public Prosecutions. Under the new section 35A, the Directors Committee, which is established under the Public Prosecutions Act 1994 will have the power to appoint someone to the position of acting Chief Crown Prosecutor. Clause 22 inserts section 45A(1)(da) in the Public Prosecutions Act 1994 to provide that the Director's committee has the function of appointing a Senior Crown Prosecutor to act as the Chief Crown Prosecutor under the new section 35A of the Public Prosecutions Act 1994 inserted by clause 21. Clause 23 amends section 45H of the Public Prosecutions Act 1994 so that the person who holds the office of Senior Crown Prosecutor (Major Trials) cannot be delegated the functions or powers associated with membership of the Director's Committee. The position of Senior Crown Prosecutor (Major Trials) is considered to be redundant and therefore all references made to it are being removed from the Act. Subclause (1) substitutes "period to--" in section 45H(1) with "period to Chief Crown Prosecutor" and removes paragraphs (a) and (b). This amendment clarifies that when the Director is not able to serve as a member of the Director's Committee for a period not exceeding two weeks, the Director is able to delegate his or her functions and powers as a member of the Director's Committee solely to the Chief Crown Prosecutor. 9

 


 

Subclause (2) also substitutes "period to--" in 45H(2) with "period to Crown Prosecutor appointed under Part 5 as a Senior Crown Prosecutor" and removes paragraphs (a) and (b). This amendment clarifies that when the Chief Crown Prosecutor is not able to serve as a member of the Director's Committee for a period not exceeding two weeks, the Chief Crown Prosecutor is are able to delegate his or her functions and powers as a member of the Director's Committee solely to a Senior Crown Prosecutor. PART 6--AMENDMENT OF FAMILY VIOLENCE PROTECTION ACT 2008 AND PERSONAL SAFETY INTERVENTION ORDERS ACT 2010 Division 1--Amendment of Family Violence Protection Act 2008 Part 7 of the Family Violence Protection Act 2008 provides police officers with certain enforcement powers, including the power to direct surrender of, to enter premises and search for, and to seize firearms, firearms authorities, ammunition and weapons. Broadly, the amendments in Division 1 of Part 6 of the Bill expand the firearms and weapons powers in Part 7 of the Family Violence Protection Act 2008 so that they may be exercised when police officers intend to serve or have served interstate protection notices, interstate orders and applications for interstate orders. The expanded powers are aligned with the existing firearms and weapons powers that police officers have in relation to family violence safety notices (FVSNs) and family violence intervention orders (FVIOs) issued or made under the Family Violence Protection Act 2008. The amendments in Division 1 of Part 6 of the Bill also repeal a redundant section of the Family Violence Protection Act 2008. Clause 24 repeals section 40 of the Family Violence Protection Act 2008. Former section 40 required the Chief Commissioner of Police and the Chief Magistrate of the Magistrates' Court to each give the Attorney-General a report about the operation of Division 2 of Part 3 of the Family Violence Protection Act 2008, which establishes the FVSN system. The reporting period was for the first 12 months of operation of the FVSN system. Accordingly, section 40 is now redundant. 10

 


 

Clause 25 inserts new section 156A in the Family Violence Protection Act 2008, which contains definitions of interstate interim order, interstate order and interstate protection notice for the purposes of Part 7 of that Act. Clause 26 amends section 158 of the Family Violence Protection Act 2008, which provides for the surrender of firearms and weapons. Section 158(1) sets out when a police officer can exercise the power in section 158(2) to direct a person to surrender a firearm, a firearms authority, ammunition or a weapon. If a person fails to comply with a direction, in accordance with section 163, the police officer must seize any firearm or firearms authority and may seize ammunition or a weapon. Subclause (1) substitutes section 158(1)(a) to expand the application of the power of direction in section 158(2). New section 158(1)(a)(i) re-enacts former section 158(1)(a). New section 158(1)(a)(ii) expands the application of the direction power. The effect of this is that a police officer can exercise the direction power where the officer intends to serve or has served on a person an interstate order or an application for an interstate order made against the person, or an interstate protection notice issued against the person, and in accordance with section 158(1)(b) the officer is aware the person is in possession of a firearm, a firearms authority, ammunition or a weapon. Subclause (2) amends section 158(2), so that exercise of the direction power when a police officer intends to serve or has served an application for an interstate order is subject to additional requirements in new section 159A, which is inserted by clause 28. Clause 27 amends section 159 of the Family Violence Protection Act 2008, which provides a power to search without warrant for firearms and weapons. Section 159(1) sets out when a police officer can exercise the power in section 159(2) to, without warrant, enter and search any premises at which a person resides or has resided, or the premises at which the person has committed or is alleged to have committed family violence, or a vehicle registered in the person's name. If a police officer conducts such a search, in accordance 11

 


 

with section 163, the officer must seize any firearm or firearms authority and may seize ammunition or a weapon. Subclause (1) substitutes section 159(1)(a) to expand the application of the entry and search power in section 159(2). New section 159(1)(a)(i) re-enacts former section 159(1)(a). New section 159(1)(a)(ii) expands the application of the entry and search power. The effect of this is that a police officer can exercise the entry and search power where the officer intends to serve or has served on a person an interstate order or an application for an interstate order made against the person or an interstate protection notice issued against the person, and in accordance with section 159(1)(b) the officer is aware, or has reasonable grounds to suspect, the person has possession of a firearm, a firearms authority, ammunition or a weapon. Subclause (2) amends section 159(2), so that exercise of the entry and search power when a police officer intends to serve or has served an application for an interstate order is subject to additional requirements in new section 159A, which is inserted by clause 28. Clause 28 inserts new section 159A in the Family Violence Protection Act 2008. New section 159A sets out additional requirements that must be met before a police officer can exercise the direction or the entry and search powers in section 158(2) or 159(2) where the officer intends to serve or has served an application for an interstate order. In these circumstances, the police officer must either-- be satisfied, on the balance of probabilities, that the person has committed family violence against a person sought to be protected by the order and is likely to continue to do so or do so again; or believe on reasonable grounds that the direction is or entry and search are necessary to ensure the safety of a person sought to be protected by the order pending final determination of the application. 12

 


 

Clause 29 amends section 160 of the Family Violence Protection Act 2008, which provides for warrants to search certain premises and vehicles. Subclause (1) inserts new section 160(1A) in the Family Violence Protection Act 2008 to provide a new ground upon which a police officer may seek a search warrant in relation to certain premises or vehicles. In accordance with new section 160(1A), a police officer may apply to a magistrate for a search warrant if the officer-- intends to serve, or has served, on a person an interstate order or an application for an interstate order made against the person, or an interstate protection notice issued against the person; and believes on reasonable grounds that the person is in possession of a firearm, a firearms authority, ammunition or a weapon at a premises or in a vehicle other than premises at which the person resides or has resided or at which the person committed or is alleged to have committed family violence or a vehicle registered in the person's name. Subclause (2) makes a consequential amendment to section 160(3)(b) to take account of the new ground for seeking a warrant in new section 160(1A). Clause 30 amends section 164 of the Family Violence Protection Act 2008, which provides for the effect of surrender or seizure of firearms and weapons if a final order is made against a person. Clause 30 makes a number of amendments to section 164 to extend its application to a corresponding interstate order, which is defined in section 4 of the Family Violence Protection Act 2008 and is effectively a final interstate order. Subclause (1) inserts the words "or a corresponding interstate order" in section 164(1). The effect of this amendment is that if a corresponding interstate order is made a firearm, firearms authority, or ammunition must be-- 13

 


 

returned to a person if the person is declared not to be a prohibited person under the Firearms Act 1996 and the item is not required as evidence in further proceedings or is not subject to forfeiture after a proceeding for an offence; or forfeited to the Crown or otherwise disposed of. Subclause (2) inserts the words "or a corresponding interstate order" and "or the corresponding interstate order" in section 164(2). The effect of these amendments is that if a corresponding interstate order is made a weapon must be-- returned to a person if the person is declared not to be a prohibited person under the Firearms Act 1996 and the item is not required as evidence in further proceedings or is not subject to forfeiture after a proceeding for an offence; or forfeited to the Crown or otherwise disposed of. Subclause (3) inserts the words "or a corresponding interstate order" in section 164(3). The effect of this amendment is that if a corresponding interstate order is made an article other than a firearm, firearms authority, ammunition or a weapon must be returned to a person unless it is required as evidence in further proceedings or is subject to forfeiture after a proceeding for an offence. Clause 31 amends section 165 of the Family Violence Protection Act 2008, which provides for the effect of surrender or seizure of firearms and weapons if a final order is not made against a person. Clause 31 makes a number of amendments to section 165(1) to extend the application of section 165 to a corresponding interstate order. The effect of the amendments is that, in accordance with section 165(2), surrendered or seized firearms, weapons or other articles must be returned to a person if a corresponding interstate order is not made, unless the item is required to be forfeited or disposed of. 14

 


 

Division 2--Amendment of Personal Safety Intervention Orders Act 2010 Part 5 of the Personal Safety Intervention Orders Act 2010 provides police officers with certain enforcement powers, including the power to direct surrender of, to enter premises and search for, and to seize firearms, firearms authorities, ammunition and weapons. Broadly, the amendments in Division 2 of Part 6 of the Bill expand the firearms and weapons powers in Part 5 of the Personal Safety Intervention Orders Act 2010 so that they may be exercised when police officers intend to serve or have served interstate orders and applications for interstate orders. The expanded powers are aligned with the existing firearms and weapons powers that police officers have in relation to personal safety intervention orders (PSIOs) made under the Personal Safety Intervention Orders Act 2010. Clause 32 inserts new section 113A in the Personal Safety Intervention Orders Act 2010, which contains definitions of interstate interim order and interstate order for the purposes of Part 5 of that Act. Clause 33 amends section 115 of the Personal Safety Intervention Orders Act 2010, which provides for the surrender of firearms and weapons. Section 115(1) sets out when a police officer can exercise the power in section 115(2) to direct a person to surrender a firearm, a firearms authority, ammunition or a weapon. If a person fails to comply with a direction, in accordance with section 120, the police officer must seize any firearm or firearms authority and may seize ammunition or a weapon. Subclause (1) substitutes section 115(1)(a) to expand the application of the power of direction in section 115(2). New section 115(1)(a)(i) re-enacts former section 115(1)(a). New section 115(1)(a)(ii) expands the application of the direction power. The effect of this is that a police officer can exercise the direction power where the officer intends to serve or has served on the person an interstate order or an application for an interstate order made against the person, and in accordance with section 115(1)(b) the officer is aware the person is in possession of a firearm, a firearms authority, ammunition or a weapon. 15

 


 

Subclause (2) amends section 115(2), so that exercise of the direction power when a police officer intends to serve or has served an application for an interstate order is subject to additional requirements in new section 116A, which is inserted by clause 35. Clause 34 amends section 116 of the Personal Safety Intervention Orders Act 2010, which provides a power to search without warrant for firearms and weapons. Section 116(1) sets out when a police officer can exercise the power in section 116(2) to, without warrant, enter and search any premises at which a person resides or has resided, or the premises at which the person has committed or is alleged to have committed prohibited behaviour or stalking, or a vehicle registered in the person's name. If a police officer conducts such a search, in accordance with section 120, the officer must seize any firearm or firearms authority and may seize ammunition or a weapon. Subclause (1) substitutes section 116(1)(a) to expand the application of the entry and search power in section 116(2). New section 116(1)(a)(i) re-enacts former section 116(1)(a). New section 116(1)(a)(ii) expands the application of the entry and search power. The effect of this is that a police officer can exercise the entry and search power where the officer intends to serve or has served on a person an interstate order or an application for an interstate order made against the person, and in accordance with section 116(1)(b) the officer is aware, or has reasonable grounds to suspect, the person is in possession of a firearm, a firearms authority, ammunition or a weapon. Subclause (2) amends section 116(2), so that exercise of the entry and search power when a police officer intends to serve or has served an application for an interstate order is subject to additional requirements in new section 116A, which is inserted by clause 35. Clause 35 inserts new section 116A in the Personal Safety Intervention Orders Act 2010. New section 116A sets out additional requirements that must be met before a police officer can exercise the direction or entry and search powers in section 115(2) or 116(2) where the officer 16

 


 

intends to serve or has served an application for an interstate order. In these circumstances, the police officer must either-- be satisfied, on the balance of probabilities, that the person has committed prohibited behaviour against a person sought to be protected by the order and is likely to continue to do so or do so again and that behaviour would cause a reasonable person to fear for their safety; or stalked a person sought to be protected by the order and is likely to continue to do so or do so again; or believe on reasonable grounds that the direction is or search and entry are necessary to ensure the safety of a person sought to be protected by the order pending final determination of the application. Clause 36 amends section 117 of the Personal Safety Intervention Orders Act 2010, which provides for warrants to search certain premises and vehicles. Subclause (1) inserts new section 117(1A) in the Personal Safety Intervention Orders Act 2010 to provide a new ground upon which a police officer may seek a search warrant in relation to certain premises or vehicles. In accordance with new section 117(1A), a police officer may apply to a magistrate for a search warrant if the officer-- intends to serve, or has served, on a person an interstate order or an application for an interstate order made against the person; and believes on reasonable grounds that the person is in possession of a firearm, a firearms authority, ammunition or a weapon at a premises or in a vehicle other than premises at which the person resides or has resided or at which the person committed or is alleged to have committed prohibited behaviour or a vehicle registered in the person's name. Subclause (2) makes a consequential amendment to section 117(3)(b) to take account of the new ground for seeking a warrant in new section 117(1A). Clause 37 amends section 121 of the Personal Safety Intervention Orders Act 2010, which provides for the effect of surrender or seizure of firearms and weapons if a final order is made against a person. 17

 


 

Clause 37 makes a number of amendments to section 121 to extend its application to a corresponding interstate order, which is defined in section 4 of the Personal Safety Intervention Orders Act 2010 and is effectively a final interstate order. Subclause (1) inserts the words "or a corresponding interstate order" in section 121(1). The effect of this amendment is that if a corresponding interstate order is made a firearm, firearms authority, or ammunition must be-- returned to a person if the person is declared not to be a prohibited person under the Firearms Act 1996 and the item is not required as evidence in further proceedings or is not subject to forfeiture after a proceeding for an offence; or forfeited to the Crown or otherwise disposed of. Subclause (2) inserts the words "or a corresponding interstate order" and "or the corresponding interstate order" in section 121(2). The effect of these amendments is that if a corresponding interstate order is made a weapon must be-- returned to a person if the person is declared not to be a prohibited person under the Firearms Act 1996 and the item is not required as evidence in further proceedings or is not subject to forfeiture after a proceeding for an offence; or forfeited to the Crown or otherwise disposed of. Subclause (3) inserts the words "or a corresponding interstate order" in section 121(3). The effect of this amendment is that if a corresponding interstate order is made an article other than a firearm, firearms authority, ammunition or a weapon must be returned to a person unless it is required as evidence in further proceedings or is subject to forfeiture after a proceeding for an offence. Clause 38 amends section 122 of the Personal Safety Intervention Orders Act 2010, which provides for the effect of surrender or seizure of firearms and weapons if a final order is not made against a person. 18

 


 

Clause 38 inserts the words "or corresponding interstate order" in section 122(1)(b)(i) to extend the application of section 122 to a corresponding interstate order. The effect of this amendment is that, in accordance with section 122(2), surrendered or seized firearms, weapons or other articles must be returned to a person if a corresponding interstate order is not made, unless the item is required to be forfeited or disposed of. PART 7--AMENDMENT OF RACING ACT 1958 Clause 39 inserts the definition of a relevant person in section 3(1) of the Racing Act 1958. Clause 40 inserts new Division 2B which contains new sections 5E, 5F and 5G into Part I of the Racing Act 1958. New section 5E inserts a definition of the Rules of Racing for the purposes of new Division 2B--Rules of Racing Victoria. New section 5E also inserts a definition of Australian Lawyer. New section 5F (1) provides that the Rules of Racing may apply to and be enforced against a person who is the holder of a licence, registration, permit or other authority issued by Racing Victoria or a relevant person. New section 5F(2)(a) specifies that the Rules of Racing (the Rules) must provide that, if there is to be an investigation or inquiry in relation to horse racing or wagering or both under the Rules in which the Rules may be applied to or enforced against a relevant person the investigation or inquiry must be initiated by a Steward. New section 5F(2)(b) provides that in conducting the investigation or inquiry, the Steward must have reasonable grounds to suspect the relevant person-- may have contravened the Rules; or may be involved in a contravention of the Rules; or may have knowledge or possession of information as to a contravention of the Rules-- because of-- the person's attendance at a horse race meeting in Victoria, or a person's participation in an activity in connection with or involving horse racing in Victoria. 19

 


 

New section 5G specifies that the Rules of Racing must provide for certain things, in relation to the RV Racing Appeals and Disciplinary Board and proceedings before the RV Racing Appeals and Disciplinary Board under the Rules of Racing. These requirements are the same for the Disciplinary Boards of Greyhound Racing Victoria and Harness Racing Victoria (see sections 50N and 83N of the Racing Act 1958). Clause 41 inserts a new section 37BA after section 37B of the Racing Act 1958. New section 37BA(1) provides that sections 14, 15, 16 and 21A of the Evidence (Miscellaneous Provisions) Act 1958 apply to the Racing Integrity Commission conducting an inquiry or investigation under Part IA of the Racing Act 1958 into a controlling body or person, club or other body licensed or registered in accordance with the rules of a controlling body as if the Racing Integrity Commissioner were a Board or a Chairman of a Board appointed by the Governor in Council. New section 37BA(2) limits the application of the powers conferred on the Racing Integrity Commissioner under new section 37BA(1) to-- a person licensed under the rules of a controlling body; a person registered under the rules of a controlling body; a member of the Board of a controlling body; an employee of a controlling body; a member of a committee or other managing body of a club registered under the rules of a controlling body; an employee of a club registered under the rules of a controlling body. New 37BA(3) inserts a definition of a Board of a controlling body for the purposes of new section 37BA(2)(c). Clause 42 is a statute law revision amendment. This clause amends section 24A(6) and (11A) of the Racing Act 1958 to substitute "the Commission" for "the Authority". Commission refers to the Victorian Commission for Gambling and Liquor Regulation as established under Part 2 of the Victorian Commission for Gambling and Liquor Regulation Act 2011. 20

 


 

PART 8--AMENDMENT OF ROAD SAFETY CAMERA COMMISSIONER ACT 2011 Clause 43 amends the definition of road safety camera system in section 3 of the Road Safety Camera Commissioner Act 2011 to remove the words "speed detectors". This amendment will mean that the road safety camera system is taken to comprise road safety cameras and processes prescribed under the Road Safety Act 1986 that are used to detect offences under that Act. Clause 44 inserts section 13A in the Road Safety Camera Commissioner Act 2011 to give the Road Safety Camera Commissioner the power to delegate his or her functions under that Act to a person employed under Part 3 of the Public Administration Act 2004. PART 9--AMENDMENTS RELATING TO SENTENCING ACT 1991 Clause 45 amends new section 53(2) of the Sentencing Act 1991 as proposed to be inserted by section 47 of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013. The amendment makes clear that the court may consider both of the matters referred to in new section 53(2) of the Sentencing Act 1991 when determining if an order to make restitution or to pay compensation should take preference over the imposition of a fine on an offender. Clause 46 amends section 83AH of the Sentencing Act 1991 to apply the time limits in that section to the commencement of a proceeding for the contravention of a fine conversion order or a fine default unpaid community work order under new sections 83ADA or 83ADB of the Sentencing Act 1991. The new offences in sections 83ADA or 83ADB of the Sentencing Act 1991 are proposed to be inserted by section 48 of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013. Clause 47 amends Schedule 3 to the Sentencing Act 1991. The amendment provides transitional arrangements for the bringing of proceedings under the Sentencing Act 1991 for the offence of contravention of an old community-based order (fines) in clause 10(1A) of Schedule 3 to the Sentencing Act 1991. 21

 


 

Currently, clause 10(3), (3A) and (4) of Schedule 3 to the Sentencing Act 1991 apply the current provisions in section 63A(3) and Divisions 1 and 2 of Part 3C of the Sentencing Act 1991 to a proceeding for the contravention of an old community-based order (fines). Existing section 63A(3) and Divisions 1 and 2 of Part 3C of the Sentencing Act 1991 deal with contravention of a fine conversion order and a fine default unpaid community work order and are proposed to be replaced. Section 50 of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013 will introduce new offences and sentencing powers in Divisions 1 and 2 of Part 3C of the Sentencing Act 1991 in relation to contravention of a fine conversion order and a fine default unpaid community work order. Subclause (1) makes a consequential amendment arising from the amendment made by section 50 of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013. Subclause (2) substitutes existing clause 10(3A) of Schedule 3 to the Sentencing Act 1991 with a new clause 10(3A). The amendment provides that-- proceedings for the offence of contravention of an old community-based order (fines) in clause 10(1A) of Schedule 3 to the Sentencing Act 1991 may continue to be brought under existing section 63A(3) and Divisions 1 and 2 of Part 3C of the Sentencing Act 1991 in relation to offences committed before the commencement of section 50 of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013; and new sections 83ADA, 83ADB and 83ASA, as proposed to be inserted into Divisions 1 and 2 of Part 3C of the Sentencing Act 1991 for bringing proceedings for contravention of a fines work order (fine conversion order or fines default unpaid community work order), apply to proceedings for contravention of an old community-based order (fines) under clause 10(1A) of Schedule 3 to the Sentencing Act 1991 on or after the commencement of section 50 of the Sentencing 22

 


 

Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013. Clause 48 amends section 47 of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013, which proposes to insert new section 69D(2) of the Sentencing Act 1991, to make a statute law revision to insert the word "section". Clause 49 amends section 50 of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013, which proposes to insert new section 83ASA(1)(a) of the Sentencing Act 1991, to make statute law revision to substitute the word "is" with "in". Clause 50 amends section 83AV(2)(e) of the Sentencing Act 1991 to make a statute law revision to insert the word "section" for the reference to section 48I(3). PART 10--AMENDMENT OF SEX WORK ACT 1994 Clause 52 repeals sections 21L and 21M of Part 2A of the Sex Work Act 1994. Part 2A establishes a scheme whereby an authorised police member may issue a notice to a person suspected of a relevant offence in a declared area, banning the person from the area for a specified period. The banning notice scheme was established as a trial, and Part 2A includes provisions specifically relevant for the initial trial period-- a reporting requirement, section 21L, which provides that the Chief Commissioner must report annually to the Minister administering the Police Regulation Act 1958, providing specified information on the operation of Part 2A; and a sunset provision, section 21M, which provides that Part 2A is repealed on 1 January 2014. The trial period has concluded and the banning notice scheme in Part 2A is to become an ongoing element of the Sex Work Act 1994. 23

 


 

PART 11--AMENDMENT OF SUMMARY OFFENCES ACT 1966 Clause 52 repeals section 18(6) of the Summary Offences Act 1966. This subsection currently provides that a notice of declared area expires on the first anniversary of the day of its publication in the Victorian Government Gazette. This requires that a new notice of the declared area be published every year. A notice of declared area sets out the area within which offensive behaviour is prohibited under section 18 of the Summary Offences Act 1966 and within which banning notices can be issued under Part 2A of the Sex Work Act 1994. The effect of the removal of subsection 18(6) means that a notice of declared area will remain valid until it is revoked and replaced by another notice of declared area. However, a notice of declared area can still be made at any time. PART 12--GENERAL Clause 53 provides for the automatic repeal of the Bill on 30 November 2013. The repeal of the Bill does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). 24

 


 

 


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