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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
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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.
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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.
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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
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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).
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