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Justice Legislation (Further Miscellaneous
Amendments) Bill
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purpose of the Act, which is to make miscellaneous
amendments to--
· the Crimes Act 1958; and
· the Crimes (Sexual Offences) Act 2006; and
· the Major Crime Legislation (Office of Police
Integrity) Act 2004; and
· the Surveillance Devices (Amendment) Act 2004; and
· the Working with Children Act 2005.
Clause 2 provides that the Act comes into operation on 30 June 2006.
PART 2--AMENDMENT OF THE CRIMES ACT 1958
Part 2 amends the Crimes Act 1958 to--
· allow a court to order that a forensic sample be taken from a
person found to be not guilty because of mental impairment;
and
· enable recordings of various matters, where required under the
Crimes Act 1958, to also be made in digital form.
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551408 BILL LA INTRODUCTION 2/5/2006
Clause 3 amends section 464(2) of the Crimes Act 1958 by--
· adding a reference to new section 464ZFAAA (inserted
by clause 9--see below) in paragraph (a) of the
definition of "related material and information";
· adding to the definition of "suspects index" a reference
to DNA profiles derived from forensic material taken
under new section 464ZFAAA from persons found not
guilty because of mental impairment;
· repealing the definition of "tape-recording".
Clause 4 inserts new section 464AA in the Crimes Act 1958. That section
requires a person making a recording required under
Subdivision 30A of the Crimes Act 1958 in digital form to
certify that the recording has not been altered and that any
prescribed requirements have been complied with.
Clause 5 amends section 464Y(1) of the Crimes Act 1958, which
concerns the requirement for a police member to give a person a
caution before the conduct of a forensic procedure, to include a
reference to the conduct of a procedure under new section
464ZFAAA.
Clause 6 amends section 464ZA of the Crimes Act 1958, which concerns
the execution of an authorisation or order to conduct a forensic
procedure, to include a reference in two places to the conduct of
a procedure under new section 464ZFAAA.
Clause 7 amends section 464ZD of the Crimes Act 1958, which provides
for the giving or sending of a forensic report after the conduct of
a forensic procedure to the person from whom the sample was
taken (or, if the sample was taken from a child, the child's parent
or guardian), to include a reference to a procedure under new
section 464ZFAAA.
Clause 8 amends section 464ZE of the Crimes Act 1958, which provides
that evidence obtained from a forensic procedure conducted on a
person is inadmissible in a prosecution of that person unless
various procedural safeguards have been observed, to include a
reference to new section 464ZFAAA.
Clause 9 inserts new section 464ZFAAA in the Crimes Act 1958.
Sub-section (1) contains definitions of "child" and "forensic
sample offence". Forensic sample offences are listed in
Schedule 8 to the Act but do not include offences tried
summarily.
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Sub-section (2) provides that a police member may apply to a
court for an order directing a person to undergo a forensic
procedure where that person has been found not guilty because
of mental impairment of a forensic sample offence or conspiring,
inciting or attempting to commit a forensic sample offence.
Such applications may be made at any time after the finding, but
not later than six months after the final determination of an
appeal or the expiry of any appeal period (whichever is later).
Sub-section (3) requires the police member who is making the
application to specify the type of sample sought from the forensic
procedure.
Sub-section (4) requires notice of the application to be served on
the person from whom the sample is sought (and where the
sample is sought from a child, on the child's parent or guardian).
The notice must include a requirement for the person to attend
the hearing of the application in person or by his or her lawyer.
Sub-section (5) requires the court in determining an application
to--
· consider the seriousness of the circumstances of the
offence of which the person has been found not guilty
because of mental impairment; and
· be satisfied that, in all the circumstances, the making of
the order is justified; and
· at the court's discretion, make such other inquiries as it
considers desirable.
Sub-section (6) requires the hearing of the application to be held
in the presence of the person in respect of whom the order is
sought or that person's legal representative.
Sub-section (7) makes clear that a person in respect of whom an
order is sought--
· is not a party to the application; and
· may not call or cross-examine any witnesses; and
· may not address the court other than in responding to
any inquiries made by the court under sub-section (5).
(See note on sub-section (5) above.)
Sub-section (8) provides that, in answering any inquiries made by
the court under sub-section (5), the person may be represented by
a legal practitioner.
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Sub-section (9) provides that, where the person who is the subject
of an order under sub-section (2) is not a forensic patient or a
forensic resident, the order must include a direction as to where
and within what period the person must attend to undergo the
forensic procedure.
Sub-section (10) requires the court in making an order under sub-
section (2) to--
· provide reasons for its decision;
· cause a copy of the order and reasons to be served on
the person in respect of whom the order is made; and
· inform that person that a police member may use
reasonable force to enable the procedure to be
conducted.
Sub-section (11) provides that a failure of the court to comply
with sub-section (10) does not invalidate the order, but means
that evidence obtained from a forensic procedure conducted on a
person is inadmissible in a prosecution of that person.
Sub-section (12) provides that an order may not be executed prior
to the expiry of any appeal period or until an appeal against the
verdict has been dismissed, whichever date is later.
Sub-section (13) provides that, if an order has not been executed
and the subject of the order seeks leave to appeal outside the
appeal period in relation to the verdict, the order must not be
executed until such leave is refused or the appeal is dismissed.
Sub-section (14) requires that where an order has been executed
after the expiry of any appeal period relating to the verdict and
leave to appeal against the verdict is subsequently granted--
· the sample and any related material and information
may be retained but not used pending the outcome of
the appeal; and
· if the verdict is set aside on appeal, the Chief
Commissioner must ensure the sample and any related
material or information is destroyed without delay.
Sub-section (15) provides that, if an appeal sets aside a verdict of
not guilty because of mental impairment, an order under sub-
section (2) ceases to have effect.
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Clause 10 amends section 464ZFA(1) of the Crimes Act 1958 to include a
failure of a person to attend a hearing of an application under
new section 464ZFAAA(2) (see note above) as a basis on which
a court may issue a warrant authorising the arrest and bringing
before the court of the person for the hearing of the application.
It also amends section 464ZFA(1A) to enable a police member to
apply for a warrant under section 464ZFA(1B) (see note below)
where the subject of an order under new section 464ZFAAA(2)
has failed to attend at the place or within the time specified under
new section 464ZFAAA(9) to undergo a forensic procedure.
Sub-section 464ZFA(1B) is amended to incorporate the failure to
attend at the specified place within the specified period to
undergo a forensic procedure under new section 464ZFAAA(9)
as the basis on which a warrant may be issued to permit the arrest
of the subject of an order and the conduct of the procedure.
Clause 11 amends section 464ZFB(1) of the Crimes Act 1958.
Sub-clause (1) inserts a new heading to section 464ZFB.
Sub-clause (2) inserts sub-sections (1A) and (1B).
Sub-section (1A) provides that a police member may apply to a
court for an order permitting the retention of a sample previously
taken from a person (as a suspect), who is subsequently found not
guilty because of mental impairment in relation to specified
offences. Sub-section (1B) provides that an application under
sub-section (1A) cannot be made in respect of an offence tried
summarily.
Sub-clause (3) amends section 464ZFB(2), which sets out what a
court must or may consider in determining an application to
retain a sample, to include reference to applications under new
sub-section (1A).
Sub-clause (4) inserts new sub-section (2B). Sub-section (2B)
provides that an order made under sub-section (1A) before the
expiry of any appeal period against the verdict or the final
determination of any appeal (whichever is later) does not take
effect until that expiry or determination. Further, if the verdict is
set aside on appeal, an order under sub-section (1A) is of no
effect.
Sub-clause (5) amends section 464ZFB(3) of the Crimes Act
1958 so that a court, which makes an order under new sub-
section (1A), must give reasons for its decision and provide the
subject of the order with a copy of the order and those reasons.
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Clause 12 amends section 464ZFC of the Crimes Act 1958, which requires
the Chief Commissioner to destroy, or caused to be destroyed, a
sample if an application for retention has not been made in the
specified period or has been refused, to include a reference to
new section 464ZFB(1A). (See note on clause 11 above.)
Clause 13 amends section 464ZFD(1) of the Crimes Act 1958, which
enables certain information obtained from a forensic procedure to
be included in a computerised database, to include information
derived from a procedure under new section 464ZFAAA.
Clause 14 amends section 464ZG(3)(b) of the Crimes Act 1958 to provide
that where a person has been found not guilty because of mental
impairment, the Chief Commissioner of Police is not obliged to
destroy, or cause to be destroyed, any forensic sample taken from
the person and any related material and information.
Clause 15 amends section 464ZGG(1) of the Crimes Act 1958 to include in
the definition of "excluded forensic material" forensic material
that has been taken from a person under new section 464ZFAAA
following a finding of not guilty because of mental impairment.
Clause 16 amends Schedule 8 to the Crimes Act 1958, which sets out the
forensic sample offences, to include a reference to new section
464ZFAAA in addition to section 464ZF. (See also note to
clause 9 above on the new section 464ZFAAA(1).)
Clause 17 makes a series of consequential amendments to enable recordings
under Subdivision 30A to be made in digital form.
Clause 18 inserts new section 605 into the Crimes Act 1958 providing a
transitional provision regarding the Justice Legislation (Further
Miscellaneous Amendments) Act 2006.
Sub-section (1) provides that the amendments made to the
Crimes Act 1958 by sections 3(b), 5, 6, 7, 8, 9, 10, 11, 12,
13, 14, 15 and 16 of the Justice Legislation (Further
Miscellaneous Amendments) Act 2006 only apply with respect
to findings of not guilty because of mental impairment on or after
the commencement of that Act.
Sub-section (2) provides that amendments made to the Crimes
Act 1958 by sections 3(c) and 17 of the Justice Legislation
(Further Miscellaneous Amendments) Act 2006 only apply to
recordings made on or after the commencement of that Act.
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PART 3--AMENDMENT OF OTHER ACTS
Clause 19 substitutes a new paragraph (b) in section 45(3) of the Crimes
(Sexual Offences) Act 2006 to remove a reference to the victim
of the offence being a child. This amendment will mean that
Schedule 3 to the Sex Offenders Registration Act 2004,
which specifies Class 3 offences, includes an offence against
section 38A of the Crimes Act 1958 (compelling sexual
penetration) regardless of the victim's age.
Clause 20 repeals sections 13(1)(b) and 15 of the Major Crime Legislation
(Office of Police Integrity) Act 2004. These provisions inserted
a definition of "relevant monitor" into the Surveillance Devices
(Amendment) Act 2004. On account of the amendments
contained in clauses 21 and 22, this definition and the use of the
term are no longer required. (See notes below.)
Clause 21 amends the Surveillance Devices (Amendment) Act 2004.
This, and the following, clause amend the regime for monitoring
and reporting on the use of surveillance devices to--
· make the Special Investigations Monitor responsible for
monitoring the use of surveillance devices by all
Victorian law enforcement agencies; and
· reflect the reporting arrangements on the use of
surveillance devices by the Australian Crime
Commission under Victorian law, which are set out in
the Surveillance Devices Act 2004 of the
Commonwealth.
Sub-clause (1) inserts into section 5(1)(a) of the Surveillance
Devices (Amendment) Act 2004 a definition of
"Commonwealth Ombudsman".
Sub-clause (2) amends section 13 of the Surveillance Devices
(Amendment) Act 2004 which inserts new Divisions 1, 2 and 3
in Part 5 of the Surveillance Devices Act 1999.
Sub-clause (2)(a) substitutes new subsections (g) and (ga) for
proposed section 30F(1)(g) of the Surveillance Devices Act
1999. This means that inspections by the Special Investigations
Monitor under the Act or by the Commonwealth Ombudsman
(under a corresponding law) will be recognised as permitted
exceptions to the prohibition on the use, communication or
publication of otherwise local protected information derived from
the use of, or related to applications to use, surveillance devices.
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Sub-clause (2)(c) amends proposed section 30P(1) of the
Surveillance Devices Act 1999 to transfer responsibility for
inspecting surveillance device related records of law enforcement
agencies from the relevant Ombudsman to the Special
Investigations Monitor.
Sub-clause (2)(d) amends proposed sections 30P(2) and 30P(3)
of the Surveillance Devices Act 1999 by substituting "Special
Investigations Monitor" for "relevant Ombudsman" (wherever
occurring).
Sub-clause (2)(e) inserts a note at the foot of proposed
section 30P of the Surveillance Devices Act 1999 referring to
the inspection regime of records of the Australian Crime
Commission under the Commonwealth legislation.
Sub-clause (2)(f) substitutes the heading to proposed section 30Q
of the Surveillance Devices Act 1999.
Sub-clause (2)(g) amends proposed section 30Q of the
Surveillance Devices Act 1999 by substituting "The Special
Investigations Monitor" for "A relevant Ombudsman"(wherever
occurring), and "Minister" for "Attorney-General" to ensure
consistency of terminology.
Sub-clause (2)(h) inserts a note at the foot of proposed
section 30Q of the Surveillance Devices Act 1999 referring to
the regime for the inspection of records of the Australian Crime
Commission under the Surveillance Devices Act 2004 of the
Commonwealth.
Clause 22 amends section 13 of the Surveillance Devices (Amendment)
Act 2004 by inserting a new proposed section 30R in the
Surveillance Devices Act 1999.
New section 30R requires the Minister to table in both Houses of
Parliament, within 14 sitting days of receipt, any report from the
Commonwealth Ombudsman on the Australian Crime
Commission's use of surveillance devices under Victorian law
that is forwarded to the Minister by the Commonwealth Minister
under section 61(3) of the Surveillance Devices Act 2004 of the
Commonwealth. If such a report is received prior to the
commencement of the Justice Legislation (Further
Miscellaneous Amendments) Act 2006, the Minister is required
to table the report within 14 sitting days after the commencement
of that Act.
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Clause 23 amends section 10 of the Working with Children Act 2005
by--
· requiring that the application form for a working with
children check be in the form approved by the Secretary
to the Department of Justice, rather than as prescribed in
regulations; and
· setting out the particulars that the approved form must
provide for, such as the full name of the applicant, any
other names by which the applicant is or has been
known, the applicant's date and place of birth, the
applicant's residential address and phone number.
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