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Justice Legislation Amendment (Family
Violence and Other Matters) Bill 2012
Introduction Print
EXPLANATORY MEMORANDUM
General
This Bill amends the Family Violence Protection Act 2008, the Crimes Act
1958, the Crimes (Assumed Identities) Act 2004, the Coroners Act 2008,
the Human Tissue Act 1982 and the Victorian Civil and Administrative
Tribunal Act 1998.
Family Violence Protection Act 2008
Part 2 of the Bill makes amendments to the Family Violence Protection Act
2008 to implement a number of the Government's commitments in Victoria's
Action Plan to Address Violence Against Women & Children (the Action
Plan) to improve court and intervention order processes and improve safety
for women and children. Specifically, the Bill amends the Family Violence
Protection Act 2008 to--
create new indictable offences for contravention of a family
violence intervention order (FVIO) or a family violence safety
notice (FVSN), with maximum penalties of 5 years
imprisonment;
extend the period of protection offered by a FVSN before it is
required to return for mention in the Magistrates' Court from
72 to 120 hours;
enable the expansion of the court-ordered men's behaviour
change program.
The Bill also makes a consequential amendment to the Bail Act 1977 and the
Police Regulation Act 1958 relating to the new indictable offences.
571317 1 BILL LA INTRODUCTION 14/11/2012
Amendments to the Crimes Act 1958
The objective of the amendment to the Crimes Act 1958 is to provide for an
indictable offence for a person driving a motor vehicle who knows, or ought
reasonably to know that they have been given a direction by a member of the
police force to stop the vehicle and who does not stop the vehicle but
continues to drive it dangerously or negligently while being pursued by
police.
Amendments to the Crimes (Assumed Identities) Act 2004
The objectives of the amendments to the Crimes (Assumed Identities) Act
2004 are to enable the acquisition and use of assumed identities for the
purpose of the safe and effective exercise of functions in administering the
Victorian witness protection program and safeguarding the security, identity
and whereabouts of participants in that program.
Amendments to the Coroners Act 2008 and the Human Tissue Act 1982
The objective of these amendments is to impose a duty on the principal
registrar of the Coroner's Court to provide to the Victorian Institute of
Forensic Medicine (VIFM) certain information concerning a reportable death
as soon as it is received. This will facilitate the performance by VIFM of its
functions under the Human Tissue Act 1982 and the Victorian Institute of
Forensic Medicine Act 1985 and facilitate the process of tissue donation.
The duty on the Coroner's Court is supported by an amendment to exclude
disclosures by the principal registrar to VIFM from the general prohibition on
disclosures under the Human Tissue Act 1982.
Amendments to the Victorian Civil and Administrative Tribunal
Act 1998
The objective of the amendments is to enable non-judicial members of the
Victorian Civil and Administrative Tribunal (VCAT) (i.e. Deputy Presidents,
senior members and ordinary members) to be appointed for up to 7 years but
provide that their term expires on attaining the age of 70 years (other than for
senior members and ordinary members who are appointed on a sessional
basis). The amendments will also require non-judicial members of VCAT to
take a prescribed oath or affirmation when appointed or re-appointed.
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Clause Notes
PART 1--PRELIMINARY
Clause 1 states the purposes of the Bill.
Clause 2 is the commencement provision. The Bill will commence
operation on a day or days to be proclaimed. The default
commencement date for the provisions in the Bill is 1 July 2013
if their commencement is not proclaimed earlier.
PART 2--AMENDMENT OF THE FAMILY VIOLENCE
PROTECTION ACT 2008
Clause 3 repeals section 3(1A) of the Family Violence Protection Act
2008.
Section 3(1A) provides for the commencement of Part 15 on
31 December 2013. Part 15 would repeal the counselling order
provisions in Part 5. The amendments in this clause and
clause 30 mean that the counselling order provisions in Part 5
will no longer sunset.
Clause 4 amends section 31 of the Family Violence Protection Act 2008.
Subsection (1) of section 31 provides that a FVSN is taken to be
an application for a FVIO by the police officer who applied for
the notice, and a summons for the respondent to attend at the first
mention date for the application. Subsection (2) provides that the
FVSN must be returned to the court at the first mention date
stated in the notice. Subsection (3) requires the first mention date
to be within 72 hours after the FVSN is served, or if this is not
possible because of a public holiday, the first working day after
the public holiday.
Clause 4 substitutes "120" for "72" wherever it occurs in
subsection (3) to extend the time by which the first mention must
be held from 72 hours to 120 hours.
Clause 5 inserts new subsections (2A) and (2B) in section 37 of the
Family Violence Protection Act 2008. Subsection (2) makes it
an offence to contravene a FVSN.
New subsection (2A) provides that it is immaterial that some or
all of the course of conduct constituting an offence against
subsection (2) occurred outside Victoria, so long as the protected
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person was in Victoria at the time that the conduct occurred.
New subsection (2B) provides that it is immaterial that the
protected person was outside Victoria at the time at which some
or all of the course of conduct constituting an offence against
subsection (2) occurred in Victoria.
This clause gives the offence extra-territorial operation.
This removes any ambiguity about the scope of the offence.
It means, for example, that the conduct of a respondent in New
South Wales who telephones the protected person in Victoria is
in contravention of a FVSN, where the respondent is prohibited
from contacting the protected person.
Clause 6 inserts new section 37A in the Family Violence Protection Act
2008.
New section 37A makes it an offence to contravene a FVSN if
the accused intends to cause, or knows that his or her conduct
will probably cause--
physical or mental harm to the person protected by the
FVSN, including self-harm; or
apprehension or fear in the person protected by the
FVSN for his or her own safety or that of any other
person.
A level 6 imprisonment (5 years maximum) and/ or a level 6 fine
(600 penalty units) is prescribed making this an indictable
offence.
The term "knowing that his or her conduct will probably cause
physical or mental harm" is used as a clear and plain language
description of the test for "recklessness" which can be confusing
to explain to juries.
This offence is aimed at contraventions which--while not
constituting an offence other than a contravention--are
particularly harmful to the victim.
Subsections (3) and (4) provide that this offence also has
extra-territorial effect in the circumstances set out.
Subsection (5) provides a defence so that an accused person will
not be liable for the offence if they contravene a FVSN where
there is also a FVIO in place and their conduct did not contravene
the FVIO. This defence already applies to the existing summary
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offence of contravention of a FVSN in section 37 of the Family
Violence Protection Act 2008.
Clause 7 inserts a note after section 38 of the Family Violence Protection
Act 2008 referring to the power of arrest for indictable offences
in section 459(1) of the Crimes Act 1958.
Clause 8 amends section 123 of the Family Violence Protection Act
2008, which makes it an offence to contravene a FVIO.
Subclause (1) substitutes the heading to section 123.
Subclause (2) inserts new subsections (2A) and (2B) in
section 123. New subsection (2A) provides that it is immaterial
that some or all of the course of conduct constituting an offence
against subsection (2) of section 123 occurred outside Victoria,
so long as the protected person was in Victoria at the time that
the conduct occurred. New subsection (2B) provides that it is
immaterial that the protected person was outside Victoria at the
time at which some or all of the course of conduct constituting an
offence against subsection (2) occurred in Victoria.
This clause gives the offence extra-territorial operation.
This provision removes any ambiguity about the scope of this
offence. It means, for example, that the conduct of a respondent
in Victoria who sends a text message to the protected person who
is holidaying in South Australia in contravention of a FVIO is
covered by the offence in subsection (2).
Clause 9 inserts new section 123A in the Family Violence Protection Act
2008.
Section 123A makes it an offence to contravene a FVIO if the
accused intends to cause, or knows that his or her conduct will
probably cause--
physical or mental harm to the person protected by the
FVIO, including self-harm; or
apprehension or fear in the person protected by the
FVIO for his or her own safety or that of any other
person.
A level 6 imprisonment (5 years maximum) and/or a level 6 fine
(600 penalty units) is prescribed making this an indictable
offence.
5
The term "knowing that his or her conduct will probably cause
physical or mental harm" is used as a clear and plain language
description of the test for "recklessness" which can be confusing
to explain to juries.
This offence is aimed at contraventions which--while not
constituting an offence other than a contravention--are
particularly harmful to the victim.
Subsections (3) and (4) provide that this offence also has
extra-territorial effect in the circumstances set out.
Subsection (5) provides a defence so that an accused person will
not be liable for the offence if they contravene a FVIO where
there is also a FVSN in place and their conduct did not
contravene the FVSN. This defence already applies to the
existing summary offence of contravention of a FVIO in
section 123 of the Family Violence Protection Act 2008.
Clause 10 inserts a note after section 124 of the Family Violence
Protection Act 2008 referring to the power of arrest for
indictable offences in section 459(1) of the Crimes Act 1958.
Clause 11 inserts new Division 11 of Part 4 of the Family Violence
Protection Act 2008, which contains new section 125A.
Section 125A(1) creates an offence of persistent contravention of
FVSNs and FVIOs. The gravamen of this offence is the
persistent nature of the contraventions over a short period of time
that demonstrates a disregard for the law.
A level 6 imprisonment (5 years maximum) and/or a level 6 fine
(600 penalty units) is prescribed making this an indictable
offence.
Section 125A(2) sets out the elements of the offence.
The offence will be made out by proving a contravention of a
FVIO and/or FVSN under section 37 and/or 123 of the Family
Violence Protection Act 2008 on at least three occasions within
a 28 day period, where the accused knew or ought to have known
that on each occasion the conduct constituted a contravention of
the FVSN or FVIO (as the case requires).
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Paragraph (b) of subsection (2) provides that the three
contraventions can be in relation to--
the same protected person; or
the same FVSN or FVIO, whether or not the
contraventions are in relation to the same protected
person; or
a FVSN and a FVIO (as long as the FVSN was the
application for the FVIO under section 31 of the Family
Violence Protection Act 2008), whether or not the
contraventions are in relation to the same protected
person.
Paragraph (b) of subsection(2) is necessary because sometimes a
FVSN or FVIO includes a mother and her children so there will
be a number of people named as protected persons on the one
FVSN or FVIO. This provision makes it clear that even if, for
example, the first contravention is in relation to the mother and
the second and third against the children named on the FVIO, the
three contraventions can be used as the basis of the offence under
new section 125A.
Paragraph (b) of subsection (2) is also necessary as it provides
that the three or more contraventions that form the basis of the
offence may be in respect of a FVSN, interim order and final
FVIO, as long as the FVSN is the application on which the
interim and final orders are made. This recognises that victims of
family violence may be protected by a combination of a notice
and orders during the relevant 28 day period.
Section 125A(3) clarifies that a defence available under
section 37(3) or 123(3) of the Family Violence Protection Act
2008 is a defence to an allegation that the accused engaged in
conduct that would constitute an offence against section 37
or 123 (as the case requires).
Section 125A(4) provides that if a person is charged with an
offence under subsection (1) but is found not guilty, the finder of
fact (the jury or a magistrate if the matter is being tried
summarily) can still find the accused guilty of any of the
summary contravention offences under section 37 or 123 of the
Family Violence Protection Act 2008 that were the basis of the
charge under new section 125A. This will ensure that if the
prosecution cannot prove three contraventions but can prove two,
7
then the accused can still be found guilty of the two summary
offences and sentenced accordingly.
Section 125A(5) provides that a person who is convicted or
acquitted of an offence against subsection (1), cannot in respect
of the circumstances concerned or the relevant 28 day period
subsequently be prosecuted for an offence against section 37,
37A, 123 or 123A. This is because a court sentencing an
offender for an offence under 125A will do so on the basis that
there has been persistent offending over that 28 day period.
Accordingly, it would be unfair if an accused were sentenced
again for contraventions that take place in that same period. It is
assumed that prosecuting authorities will ensure all relevant
contraventions are alleged if a charge is filed under new
section 125A.
Clause 12 amends section 125 of the Family Violence Protection Act
2008.
Section 125 of the Family Violence Protection Act 2008
provides that, for the purposes of section 52 of the Magistrates'
Court Act 1989, a protected person does not aid, abet, counsel or
procure the commission of an offence against the Family
Violence Protection Act 2008, and is not punishable as a
principal offender, because they encourage, permit or authorise
conduct by the respondent that contravenes a FVSN or FVIO.
Section 52 of the Magistrates' Court Act 1989 provides that a
person who aids, abets, counsels or procures the commission of a
summary offence may be dealt with and punished as a principal
offender either together with the principal offender or before or
after the principal offender is charged with the principal offence.
Subclause (1) substitutes the heading to section 125.
Subclause (2) inserts the words "section 323 of the Crimes Act
1958" in section 125. Section 323 of the Crimes Act 1958
provides a person who aids, abets, counsels or procures the
commission of an indictable offence may be tried or indicted and
punished as a principal offender.
The effect of this amendment is that, just as with the summary
contravention offences, a protected person will not be liable to
be charged for aiding, abetting counselling or procuring the
commission of an indictable offence under new section 37A,
123A or 125A because they encourage, permit or authorise
conduct by the respondent that contravenes a FVSN or FVIO.
8
Clause 13 substitutes 126 of the Family Violence Protection Act 2008,
which contains definitions for the purposes of Part 5.
New section 126 replicates the existing definition of legal
practitioner and contains a new definition of relevant court.
The new definition is necessary to provide a mechanism by
which venues of the Magistrates' Court other than the Family
Violence Court Division are able to make counselling orders.
If a venue of the Magistrates' Court is a relevant court for the
purposes of Part 5, that venue of the Court will be able to make a
counselling order.
Clause 14 substitutes the words "a relevant court" for "the Family Violence
Court Division" in paragraph (a) of section 127 of the Family
Violence Protection Act 2008. This is a consequential
amendment required as a result of the amendment in clause 13.
Clause 15 substitutes the words "a relevant court" for "the Family Violence
Court Division" in section 128 of the Family Violence
Protection Act 2008. This is a consequential amendment
required as a result of the amendment in clause 13.
Clause 16 amends section 129 of the Family Violence Protection Act
2008.
Subclause (1) substitutes the words "a relevant court" for "the
Family Violence Court Division" in subsections (1), (2) and (4)
of section 129. This is a consequential amendment required as a
result of the amendment in clause 13.
Subclause (2) substitutes the words "the relevant court" for
"the Division" in paragraph (a) of subsection (1) and
paragraph (b) of subsection (2) of section 129. This is a
consequential amendment required as a result of the amendment
in clause 13.
Clause 17 substitutes the words "a relevant court" for "the Family Violence
Court Division" in subsections (1) and (2) and paragraph (a) of
subsection (3) of section 130 of the Family Violence Protection
Act 2008. This is a consequential amendment required as a
result of the amendment in clause 13.
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Clause 18 amends section 132 of the Family Violence Protection Act
2008.
Subclause (1) substitutes the words "a relevant court" for
"the Family Violence Court Division" in subsections (1) and (3)
of section 132. This is a consequential amendment required as a
result of the amendment in clause 13.
Subclause (2) substitutes the words "A relevant court" for
"The Family Violence Court Division" in subsection (2) of
section 132. This is a consequential amendment required as a
result of the amendment in clause 13.
Subclause (3) substitutes the words "the court" for "the Division"
in subsection (3) of section 132. This is a consequential
amendment required as a result of the amendment in clause 13.
Clause 19 substitutes the words "a relevant court" for "the Family Violence
Court Division" in subsection (3) of section 133 of the Family
Violence Protection Act 2008. This is a consequential
amendment required as a result of the amendment in clause 13.
Clause 20 substitutes the words "a relevant court" for "the Family
Violence Court Division" and "the court" for "the Division" in
subsection (1) of section 134 of the Family Violence Protection
Act 2008. This is a consequential amendment required as a
result of the amendment in clause 13.
Clause 21 amends section 135 of the Family Violence Protection Act
2008.
Subclause (1) substitutes the words "a relevant court" for
"the Family Violence Court Division" and "the court" for
"the Division" in subsection (1) of section 135. This is a
consequential amendment required as a result of the amendment
in clause 13.
Subclause (2) substitutes the words "a relevant court" for
"the Family Violence Court Division" and "the court" for
"the Division" (wherever occurring) in subsection (2) of
section 135. This is a consequential amendment required as a
result of the amendment in clause 13.
10
Clause 22 substitutes the words "a relevant court" for "the Family Violence
Court Division" and "the court" for "the Division" in section 136
of the Family Violence Protection Act 2008. This is a
consequential amendment required as a result of the amendment
in clause 13.
Clause 23 amends section 137 of the Family Violence Protection Act
2008.
Subclause (1) substitutes the words "A relevant court" for
"The Family Violence Court Division" in subsections (1) and (2)
of section 137. This is a consequential amendment required as a
result of the amendment in clause 13.
Subclause (2) substitutes the words "court" for "Division" in
paragraph (b) of subsection (2) of section 137. This is a
consequential amendment required as a result of the amendment
in clause 13.
Subclause (3) substitutes the words "the relevant court" for
"the court" in subsection (3) of section 137. This is a
consequential amendment required as a result of the amendment
in clause 13.
Clause 24 amends section 138 of the Family Violence Protection Act
2008.
Subclause (1) substitutes the words "a relevant court" for
"the Family Violence Court Division" in subsections (1) and (2)
of section 138. This is a consequential amendment required as a
result of the amendment in clause 13.
Subclause (2) substitutes the words "court" for "Division" in
paragraph (a) and subparagraph (i) of paragraph (c) of subsection
(1) of section 138. This is a consequential amendment required
as a result of the amendment in clause 13.
Clause 25 substitutes the words "a relevant court" for "the Family Violence
Court Division" in subsection (2) of section 139 of the Family
Violence Protection Act 2008. This is a consequential
amendment required as a result of the amendment in clause 13.
11
Clause 26 substitutes the words "a relevant court" for "the Family Violence
Court Division" in paragraph (c) of subsection (3) of section 140
of the Family Violence Protection Act 2008. This is a
consequential amendment required as a result of the amendment
in clause 13.
Clause 27 substitutes the words "a relevant court" for "the Family Violence
Court Division" in paragraph (c) of subsection (2) of section 141
of the Family Violence Protection Act 2008. This is a
consequential amendment required as a result of the amendment
in clause 13.
Clause 28 substitutes the words "a relevant court" for "the Family Violence
Court Division" and "the relevant court" for "the Division" in
section 142. This is a consequential amendment required as a
result of the amendment in clause 13.
Clause 29 inserts new Division 7 in Part 14 of the Family Violence
Protection Act 2008 to provide transitional arrangements for the
amendments in Part 2.
New section 224D(1) provides that Part 5 of the Family
Violence Protection Act 2008, as amended by Part 2 of the
Justice Legislation (Family Violence and Other Matters) Act
2012, only applies to an application for a FVIO made to a venue
of the Magistrates' Court after the date on which the notice
specifying that venue for the purposes of the definition of
relevant court in new section 126 is gazetted.
New section 224D(2) provides that the amendment to
section 31(3) of the Family Violence Protection Act 2008
extending the period of operation of FVSNs from 72 hours
to 120 hours only applies to a FVSN issued on or after
commencement of section 4 of the Justice Legislation (Family
Violence and Other Matters) Act 2012.
New section 224D(3) provides that the offence in new
section 37A only applies to a contravention of a FVSN that
occurs on or after the commencement of section 6 of the Justice
Legislation (Family Violence and Other Matters) Act 2012,
irrespective of when the FVSN was issued.
New section 224D(4) provides that the offence in new
section 123A only applies to a contravention of a FVIO that
occurs on or after the commencement of section 9 of the Justice
12
Legislation (Family Violence and Other Matters) Act 2012,
irrespective of when the FVIO was made.
New section 224D(5) provides that the offence in new
section 125A only applies to contraventions of a FVSN or FVIO
that occur on or after the commencement of section 11 of the
Justice Legislation (Family Violence and Other Matters) Act
2012, irrespective of when the FVSN or FVIO was made.
Clause 30 repeals Part 15 of the Family Violence Protection Act 2008.
Part 15 would have repealed the counselling order provisions in
Part 5. The amendments in this clause and clause 3 mean that the
counselling order provisions will no longer sunset.
Clause 31 amends section 4 of the Bail Act 1977 and the First Schedule to
the Police Regulation Act 1958.
Clause Section 4 of the Bail Act 1977 sets out the tests for bail.
Subclause (1) substitutes the words "37, 37A, 123, 123A
or 125A" for "37 or 123" in paragraph (ba) of subsection (4) of
section 4. The effect of this amendment is that in specified
circumstances a person who is arrested and charged with any of
the indictable offences in new sections 37A, 123A and 125A
must show cause why their detention is custody is not justified.
The specified circumstances are where the accused is alleged to
have used or threatened to use violence in the course of
committing the offence and--
within the preceding 10 years has been convicted or
found guilty of an offence involving the use or
threatened use of violence against any person; or
the court is satisfied that on a separate occasion the
accused used or threatened to use violence against the
protected person, whether or not the accused has been
convicted or found guilty of, or charged with an
offence.
This amendment aligns the indictable offences with the existing
summary offences in sections 37 and 123 for the purposes of the
Bail Act 1977.
The First Schedule to the Police Regulation Act 1958 lists
reportable offences for the purposes of section 71(2) of that Act.
Section 71(2) provides that where a member is believed to have
committed a First Schedule offence, they must not be charged
13
with the commission of a breach of discipline until the Director
of Public Prosecutions has been consulted. Subclause (2) amends
item 3.3 of the First Schedule to include the indictable offences
in new sections 37A, 123A and 125A. This means that the new
indictable offences have the same legal consequences under the
Police Regulation Act 1958 as the existing summary offences
under section 37 and 123 of the Family Violence Protection Act
2008, which are already included in the First Schedule.
PART 3--AMENDMENT OF THE CRIMES ACT 1958
Clause 32 inserts a new section 319AA into the Crimes Act 1958 to
provide for an indictable offence for a person who drives a
vehicle dangerously or negligently if the person knows or ought
reasonably to know that they have been given a direction to stop
the vehicle by a police member and that a police member is in
pursuit of the vehicle.
The provision specifies that a person is taken to drive a vehicle
dangerously if their driving can be objectively regarded as
dangerous to the public in the circumstances of the case.
The person is taken to drive negligently if they can objectively be
regarded as departing to a gross degree from the standard of care
that would be observed by a reasonable person in the
circumstances.
The provision clarifies that--
a police member may be pursuing a motor vehicle even
if they do not travel at the same speed as the vehicle;
and
the offence may be committed even if the police
suspend or terminate their pursuit of the vehicle before
it stops.
A direction to stop for the purposes of this provision has the
same meaning as in section 64A(5) of the Road Safety Act 1986.
Clause 33 makes a number of amendments to the Sentencing Act 1991 and
the Road Safety Act 1986 that are consequential on the
enactment of the new section 319AA of the Crimes Act 1958.
Subclause (1) inserts a new subsection (1AA) into section 89 of
the Sentencing Act 1991 that requires a Court, on a finding of
guilt under section 319AA of the Crimes Act 1958, to cancel the
14
offender's driver licence or learner permit and disqualify the
offender from holding a driver licence or learner permit
(whether or not they held a driver licence or learner permit) for a
period of not less than 12 months.
Subclause (2) amends section 89(1A) of the Sentencing Act
1991 to provide that a disqualification of a driver licence or
learner permit under the new section 89(1AA) will commence on
the day of the court order or such later day as the court order
specifies.
Subclause (3) amends section 89(2) of the Sentencing Act 1991
to require that a person who has been disqualified from holding a
driver licence or learner permit under the new section 89(1AA)
not be issued with a driver licence or learner permit at the end of
the period of disqualification except by order of the Magistrate'
Court on application by the offender.
Subclause (4) amends section 84C(1) of the Road Safety Act
1986 to include the new offence under section 319AA(1) of the
Crimes Act 1958 in the definition of a tier 1 relevant offence.
Consequently, the offence enables the offender's vehicle to be
impounded under the vehicle impoundment provisions of the
Road Safety Act 1986.
PART 4--AMENDMENT OF THE CRIMES (ASSUMED
IDENTITIES) ACT 2004
Clause 34 makes a number of amendments to section 1 of the Crimes
(Assumed Identities) Act 2004 to provide that the main
purposes of the Act include enabling the safe and effective
exercise of functions in administering the Victorian witness
protection program and that this may be achieved by the lawful
acquisition and use of assumed identities.
Clause 35 amends section 3 of the Crimes (Assumed Identities) Act 2004
to insert a new definition of "Victorian witness protection
program" as having the same meaning as in the Witness
Protection Act 1991. (Section 3A of that Act enables the Chief
Commissioner of Police to maintain the Victorian witness
protection program to take action to protect the safety and
welfare of witnesses or their families.)
15
Clause 36 substitutes section 4(3)(b)(vi) of the Crimes (Assumed
Identities) Act 2004 with new paragraphs (vi) and (via).
The new paragraph (vi) requires that, if the assumed identity is to
be used in an investigation or for intelligence gathering, the
application to assume or use an assumed identity must contain
details of the investigation or intelligence gathering exercise for
which it is intended to be used.
The new paragraph (via) requires that, if the assumed identity is
to be used for the functions of the Victorian witness protection
program, the application to assume or use an assumed identity
must contain details of the functions concerned.
Clause 37 amends section 5(2) of the Crimes (Assumed Identities)
Act 2004 to substitute paragraph (a) and to insert a new
paragraph (ab).
The substituted paragraph (a) includes the necessity of enabling
Victoria Police to exercise their functions in administering the
Victorian witness protection program in the matters that a chief
officer must be satisfied of before granting authority for the
acquisition or use of an assumed identity.
The new paragraph (ab) requires that the person authorised to
acquire and use an assumed identity for the purposes of ensuring
the effective and safe exercise of functions under the Victorian
witness protection program must be either a member of the
Victoria Police or a public servant employed by the Chief
Commissioner under Part 3 of the Public Administration Act
2004.
Clause 38 amends section 30(2) of the Crimes (Assumed Identities) Act
2004 to extend the application of the offence in that provision to
intentional or reckless disclosures that would prejudice the
implementation of the Victorian witness protection program.
16
PART 5--AMENDMENT OF THE CORONERS ACT 2008 AND
THE HUMAN TISSUE ACT 1982
Clause 39 inserts a new section 29A into the Coroners Act 2008 that
requires the principal registrar to provide without delay to the
Victorian Institute of Forensic Medicine in relation to a death
reported to a coroner--
a copy of any initial police report that is received by a
coroner; and
the name and contact details of the next of kin
(within the meaning of the Human Tissue Act 1982) of
the deceased that are provided to the Coroners Court
within 24 hours of the death being reported to a coroner.
The obligation to provide this information is subject to any
contrary direction by a coroner.
There may be many people who are next of kin within the
meaning of the Human Tissue Act. New section 29A(b) only
requires the provision of details of the next of kin who did not
have their details included in the initial police report to the
coroner.
The obligation to provide details of the next of kin referred to in
section 29A(b) only exists for the first 24 hours after the report of
the death to the coroner. This is because VIFM, through the
Donor Tissue Bank of Victoria, must begin the process of tissue
donation within 24 hours after death, if the tissue is to be used for
transplant purposes.
New section 29A allows a coroner to decide that it would not
be appropriate to provide the required information to VIFM.
In some cases it is inappropriate to contact a next of kin in order
to begin the process of tissue donation. This may be the case in a
homicide if a family member is a suspect, or if there is a dispute
within the family about who is the next of kin. In cases such as
this, the Coroner will be able to decide not to provide information
to VIFM.
Clause 40 inserts a new paragraph (ca) in section 45(5) of the Human
Tissue Act 1982 to include a principal registrar appointed under
the Coroners Act 2008 as a person who may collect health
information and disclose that information for the purposes of
assessing whether the deceased's tissue is suitable for use under
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Part IV, V or VI of the Act, determining whether the removal of
the tissue is authorised under Part IV, V or VI of the Act and
ascertaining and locating the senior available next of kin.
PART 6--AMENDMENT OF THE VICTORIAN CIVIL AND
ADMINISTRATIVE TRIBUNAL ACT 1988
Clause 41 substitutes section 12(3) of the Victorian Civil and
Administrative Tribunal Act 1998 with new subsections (3)
and (4).
The substituted subsection (3) provides that a Deputy President
holds office for a term of 7 years, or until the date that he or she
attains the age of 70 years, whichever occurs first.
The subsection replaces the previous provision which provided
for a term of office for a Deputy President of 5 years, regardless
of age.
The new subsection (4) provides that a Deputy President can be
appointed on a full-time or part-time basis. Previously a Deputy
President could be appointed on a full-time basis only.
Clause 42 amends section 13 of the Victorian Civil and Administrative
Tribunal Act 1998 by substituting a new subsection (3) and
inserting a new subsection (5).
The substituted subsection (3) provides that a senior member
holds office for a term of 7 years, or until the date that he or she
attains the age of 70 years, whichever occurs first. The substitute
subsection replaces the previous provision which provided for a
term of office of 5 years, regardless of the age of the senior
member.
The new subsection (5) provides that the age limit for senior
members which is created by new subsection (3)(b) does not
apply to a senior member who is appointed on a sessional basis.
A person who has attained the age of 70 years may be appointed
as a senior member of VCAT on a sessional basis.
Clause 43 amends section 14 of the Victorian Civil and Administrative
Tribunal Act 1998 by substituting a new subsection (3) and
inserting a new subsection (5).
The substituted subsection (3) provides that an ordinary member
holds office for a term of 7 years, or until the date that he or she
attains the age of 70 years, whichever occurs first.
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The substituted subsection replaces the previous provision which
provided for a term of office of 5 years, regardless of the age of
the ordinary member.
The new subsection (5) provides that the age limit for ordinary
members which is created by new subsection (3)(b) does not
apply to an ordinary member who is appointed on a sessional
basis. A person who has attained the age of 70 years may be
appointed as an ordinary member of VCAT on a sessional basis.
Clause 44 amends section 16 of the Victorian Civil and Administrative
Tribunal Act 1998 by inserting new subsections (4), (5),
(6) and (7).
The new subsection (4) creates a requirement for a non-judicial
member of VCAT to take an oath or affirmation of office in the
prescribed form and manner. The requirement to take an oath of
office applies only to non-judicial members of VCAT who are
appointed or re-appointed after the commencement of this clause.
The new subsection (5) provides that the requirement to take
an oath of office does not apply to an appointment under
section 16A. Section 16A provides for the internal promotion of
a senior member as a Deputy President, or an ordinary member
as a senior member.
The new subsection (6) clarifies that the obligation to take an
oath or affirmation of office under subsection (4) does not apply
to a person who has previously taken an oath or affirmation of
office under that provision.
The new subsection (7) provides that anything done by a member
of VCAT is not invalidated by that person's failure to take an
oath or affirmation of office under subsection (4).
Clause 45 inserts a new section 165 into the Victorian Civil and
Administrative Tribunal Act 1998. This is a transitional
provision which ensures that the amendments in clauses 41, 42
and 43 of the Bill operate prospectively to appointments made on
or after the commencement of those provisions.
New section 165(1) provides that the term of a Deputy President
who is serving a 5 year term when clause 41 of the Bill
commences is unaffected by the changes made by the Bill and is
not extended to a 7 year term.
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New section 165(2) provides that the term of a senior member
who is serving a 5 year term when clause 42 of the Bill
commences is unaffected by the changes made by the Bill and is
not extended to a 7 year term.
New section 165(3) provides that the term of an ordinary member
who is serving a 5 year term when clause 43 of the Bill
commences is unaffected by the changes made by the Bill and is
not extended to a 7 year term.
New section 165(4) provides that when the obligation to take an
oath or affirmation of office under section 16(4) of the Victorian
Civil and Administrative Tribunal Act 1998 commences
effect, a non-judicial member is not required to comply with that
provision until they are reappointed as a non-judicial member or
appointed to another position as a non-judicial member.
Clause 46 is a statute law revision, which removes clause 62A of
Schedule 1 to the Victorian Civil and Administrative Tribunal
Act 1998, (which relates to the Residential Tenancies Act 1997)
from Part 16 of the Schedule, which is entitled "Planning
Enactments", and inserts it into Part 17 of the Schedule, which is
entitled "Residential Tenancies Act 1997".
PART 7--REPEAL OF AMENDING ACT
Clause 47 provides for the automatic repeal of this amending Act on 1 July
2014. The repeal of this Act does not affect in any way the
continuing operation of the amendments made by this Act
(see section 15(1) of the Interpretation of Legislation Act
1984).
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