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This is a Bill, not an Act. For current law, see the Acts databases.
SEXUALITY DISCRIMINATION LEGISLATION AMENDMENT BILL 2003
2003
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Sexuality
Discrimination Legislation Amendment Bill 2003
Contents
Page
Part
1.1 Administration and Probate Act
1929 3
Part 1.2 Births,
Deaths and Marriages Registration Regulations 1998 7
Part 1.3 Casino
Control Act 1988 8
Part 1.4 Credit Act
1985 10
Part 1.5 Debits Tax
Act 1997 10
Part 1.6 Duties Act
1999 11
Part 1.7 Family
Provision Act 1969 13
Part 1.8 Instruments
Act 1933 14
Part 1.9 Land
(Planning and Environment) Act 1991 15
Part 1.10 Married
Persons Property Act 1986 16
Part 1.11 Nature
Conservation Act 1980 16
Part
1.12 NRMA–ACT Road Safety Trust Act
1992 17
Part 1.13 Public
Trustee Act 1985 17
Part 1.14 Rates and
Land Rent (Relief) Act 1970 19
Part 1.15 Supreme
Court Act 1933 21
Part
1.16 Transplantation and Anatomy Act
1978 22
Part 1.17 Trustee
Act 1925 23
Part 1.18 Trustee
Companies Act 1947 24
Part 1.19 Workers
Compensation Act 1951 24
Part 2.1 Crimes Act
1900 26
Part 2.2 Disability
Services Act 1991 26
Part
2.3 Discrimination Act
1991 27
Part 2.4 Evidence
Act 1971 30
Part 2.5 Evidence
(Miscellaneous Provisions) Act 1991 30
Part 2.6 Magistrates
Court Act 1930 34
Part 2.7 Public
Baths and Public Bathing Act 1956 34
2003
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Sexuality
Discrimination Legislation Amendment Bill 2003
A Bill for
An Act to amend the law to remove discrimination relating to sexuality and
marital status, and for other purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Sexuality Discrimination Legislation Amendment Act
2003.
This Act commences on a day fixed by the Minister by written
notice.
Note 1 The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
Note 2 A single day or time may be fixed, or different days or times
may be fixed, for the commencement of different provisions (see Legislation Act,
s 77 (1)).
Note 3 If a provision has not commenced within 6 months beginning on
the notification day, it automatically commences on the first day after that
period (see Legislation Act, s 79).
3 Legislation
amended—schs 1 and 2
This Act amends the legislation mentioned in schedules 1 and 2.
Schedule
1 Domestic
partners
(see s 3)
Part
1.1 Administration and Probate Act
1929
[1.1] Section
44, definition of eligible partner
substitute
eligible partner, of an intestate, means someone, other than
the spouse of the intestate, who—
(a) was the intestate’s domestic partner when the intestate died;
and
(b) either—
(i) had been the intestate’s domestic partner continuously for 2 or
more years when the intestate died; or
(ii) is the parent of the intestate’s child, if the child was under
18 years old when the intestate died.
Note For the meaning of domestic partner, see
Legislation Act, s 169.
[1.2] Section
44, definition of legal spouse
omit
[1.3] Section
44, new definition of partner
insert
partner—an intestate’s partner is
either of the following:
(a) the spouse of the intestate when the intestate died;
(b) the eligible partner of the intestate.
[1.4] Section
44, definition of spouse
omit
substitute
45A Distribution between spouse and eligible
partner
(1) If an intestate is survived by both a spouse and an eligible partner,
the entitlement of each to the partnership share of the intestate estate must be
worked out as follows:
(a) if the eligible partner and the intestate had been domestic partners
continuously for less than 5 years when the intestate died—the partnership
share of the intestate estate must be distributed equally between the spouse and
the eligible partner;
(b) if the eligible partner and the intestate had been domestic partners
continuously for 5 years or more when the intestate died—the eligible
partner is exclusively entitled to the partnership share.
(2) In this section:
partnership share, in relation to an intestate, means the
share of the estate to which the intestate’s partner is entitled under
this division.
[1.6] Section
49BA (1) (a)
omit
a spouse of such a person
substitute
an unentitled partner of such a person
[1.7] Section
49BA (3) and (4)
substitute
(3) This section does not apply in relation to money or property given to
or for the benefit of the intestate’s partner.
(4) If an intestate has made a gift to which this section
applies, the unentitled partner of a person entitled to a share in
the intestate’s estate is, for subsection (1), someone
who—
(a) is not entitled to a share in the intestate’s estate;
and
(b) was the domestic partner of the entitled person at the time of the
gift; and
(c) either—
(i) was the entitled person’s spouse at that time; or
(ii) had been the entitled person’s domestic partner continuously
for 2 or more years at that time; or
(iii) was at that time the parent of a child of the entitled person, if
the child was less than 18 years old at that time.
Note For the meaning of domestic partner, see
Legislation Act, s 169.
(5) In this section:
given, in relation to money or property, means money or
property paid, transferred, assigned or settled (otherwise than for valuable
consideration).
[1.8] Further
amendments, mentions of spouse etc
column 1
item
|
column 2
provision
|
column 3
omit
|
column 4
substitute
|
1
|
section 12
|
spouse
|
partner
|
2
|
section 12 (1) (c) and (d)
|
spouses
|
partners
|
3
|
section 12 (4), definition of spouse
|
spouse
|
partner
|
4
|
sections 49, 49A and 49AA
|
spouse
|
partner
|
5
|
section 49AA (4)
|
spouse’s
|
partner’s
|
6
|
section 49D
|
spouse
|
partner
|
7
|
division 3A.3 heading
|
spouses
|
partners
|
8
|
sections 49G and 49K to 49N
|
spouse
|
partner
|
9
|
section 49N (1)
|
spouse’s
|
partner’s
|
10
|
section 50
|
spouse
|
partner
|
11
|
section 50 (7), definition of spouse
|
spouse
|
partner
|
12
|
section 88
|
spouse
|
partner
|
13
|
section 88 (6), definition of spouse
|
spouse
|
partner
|
14
|
schedule 6
|
spouse
|
partner
|
Part
1.2 Births, Deaths and Marriages
Registration Regulations 1998
[1.9] New
regulation 5 (ia)
insert
(ia) whether or not the parents of the child are in a domestic
partnership;
Note For the meaning of domestic partnership, see
Legislation Act, s 169.
renumber paragraphs when regulations next republished under the
Legislation Act
[1.11] Regulation
9 (f) and (g)
substitute
(f) whether or not the deceased was in a domestic partnership at the time
of death;
(g) if the deceased had been in a domestic partnership at any
time—
(i) if the deceased had been married—the date and place of each
marriage; and
(ii) in any case—the name and any former name of each domestic
partner.
Note For the meanings of domestic partner and
domestic partnership, see Legislation Act, s 169.
Part
1.3 Casino Control Act
1988
in part 1, insert
3E Offences against Act—application of Criminal
Code etc
Other legislation applies in relation to offences against this
Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to offences against s 68 (Exclusion of
children) (see Code, pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used for
offences to which the Code applies (eg conduct,
intention, recklessness and strict
liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that
are expressed in penalty units.
substitute
68 Exclusion of children
(1) The casino licensee must not permit a child to enter or remain in any
part of the casino.
Maximum penalty: 50 penalty units.
Note Child means a person who is under 18 years old (see
Legislation Act, dict, pt 1).
(2) A child must not enter or remain in any part of the casino.
Maximum penalty: 5 penalty units.
(3) It is a defence to a prosecution for an offence against subsection (1)
if the defendant proves that the child—
(a) was at least 16 years old; and
(b) had shown a prescribed identity document.
(4) Subsections (1) and (2) do not apply in relation to a child
if—
(a) the child enters a part of the casino other than a gaming area;
and
(b) the child is with an adult who is the child’s domestic partner
or parent.
Note For the meaning of domestic partner, see
Legislation Act, s 169.
(5) Subsections (1) and (2) do not apply in relation to a child who is a
casino employee.
(6) A person must not use someone else’s identification, or a form
of identification that is forged, to enter or remain in a gaming area.
Maximum penalty: 10 penalty units.
(7) An offence against this section is a strict liability
offence.
(8) In this section:
gaming area means any part of the casino—
(a) where gaming takes place; or
(b) from where it is possible to see gaming take place.
[1.14] Section
5 (1), definitions of commission charge and
guarantor
omit
spouse
substitute
domestic partner
[1.15] Section
5 (1), definitions of commission charge and guarantor, new
note
insert
Note For the meaning of domestic partner, see
Legislation Act, s 169.
Part
1.5 Debits Tax Act
1997
[1.16] Section
16 (1), definition of pensioner, paragraph (e)
substitute
(e) a person who is (or was) in a domestic partnership who would be
eligible as a pensioner mentioned in paragraph (a) because of that partnership
if the person’s domestic partner were (or had been) the person’s
partner within the meaning of the Social Security Act 1991
(Cwlth), section 4; or
(f) a person who is (or was) in a domestic partnership who would be
eligible as a pensioner mentioned in paragraph (b) because of that partnership
if the person’s domestic partner were (or had been) the person’s
partner within the meaning of the Veterans’ Entitlements
Act 1986 (Cwlth), section 5E; or
(g) a person who was in a domestic partnership until the death of his or
her domestic partner who would be eligible as a pensioner mentioned in paragraph
(d) (i) because of the domestic partner’s death if the person were the
domestic partner’s dependant within the meaning of the Veterans’
Entitlements Act 1986 (Cwlth), section 11; or
(h) a person prescribed under the regulations for this
paragraph.
Note for pars (e), (f) and (g)
The Legislation Act, s 169, def domestic partner and def
domestic partnership apply to partners irrespective of their sex,
while the Social Security Act 1991 (Cwlth), s 4, def
partner and the Veterans’ Entitlements Act 1986
(Cwlth), s 5E, def partner and s 11, def dependant
only apply to partners (or former partners) of the opposite sex to each
other.
substitute
72 Transfer to partner of interest in principal place
of residence
(1) Duty of $20 is payable for a transfer by someone to his or her partner
of dutiable property consisting of an interest in property that is, at the date
of the transfer of the interest, used as their principal place of
residence.
Note The dictionary defines partner as a
person’s spouse or someone with whom the person has a domestic
relationship. Domestic relationship is defined in the dictionary
to have the same meaning as in the Domestic Relationships Act 1994, s 3
(1).
(2) However, subsection (1) only applies if the transfer results in the
property being held by the partners as—
(a) joint tenants; or
(b) tenants in common in equal shares; or
(c) tenants in common in shares that are proportionate to the
contributions of the partners towards the purchase and improvement of the
property; or
(d) tenants in common in shares that are in proportions prescribed under
the regulations.
[1.18] Sections
74B (1) (b), 115H (1) (b) and 213 (1) (b)
omit
spouses
substitute
partners
[1.19] Sections
74B (1) (b), 115H (1) (b) and 213 (1) (b), new note
insert
Note The dictionary defines partner as a
person’s spouse or someone with whom the person has a domestic
relationship. Domestic relationship is defined in the dictionary
to have the same meaning as in the Domestic Relationships Act 1994, s 3
(1).
[1.20] Dictionary,
definition of domestic partner
omit
[1.21] Dictionary,
new definition of partner
insert
partner—a person’s partner is
either of the following:
(a) the person’s spouse;
(b) someone with whom the person has a domestic relationship.
[1.22] Dictionary,
definition of related person, paragraph (a) (i)
substitute
(i) they are partners, or they have been partners and the partnership has
ended (whether the partnership ended in Australia or elsewhere); or
[1.23] Dictionary,
definition of spouse
omit
Part
1.7 Family Provision Act
1969
[1.24] Section
4 (1), definitions of domestic partner, domestic relationship,
eligible partner, legal spouse and
spouse
omit
[1.25] Section
7 (1) (a) and (b)
substitute
(a) a partner of the deceased person;
(b) a person (other than a partner of the deceased person) who was in a
domestic relationship with the deceased person for 2 or more years continuously
at any time;
omit
any spouse
substitute
any partner
insert
(9) In this section:
domestic relationship—see the Domestic Relationships
Act 1994,
section 3 (1).
partner, of a deceased person, means someone
who—
(a) was the domestic partner of the person at any time; and
(b) either—
(i) was the person’s spouse at any time; or
(ii) was the person’s domestic partner continuously for 2 or more
years at any time; or
(iii) is the parent of a child of the person.
Note For the meaning of domestic partner, see
Legislation Act, s 169.
Part
1.8 Instruments Act
1933
omit
married
substitute
in a domestic partnership
omit
wife or husband
substitute
domestic partner
substitute
(2) This section does not apply after—
(a) the death of the domestic partner of the person making or giving the
bill of sale; or
(b) the permanent separation of the domestic partners since the bill of
sale was made or given.
Note 1 If a form is approved under s 38 for the endorsement under
this section of a bill of sale, the form must be used.
Note 2 For the meanings of domestic partner and
domestic partnership, see Legislation Act, s 169.
Part
1.9 Land (Planning and Environment)
Act 1991
[1.31] Section
180 (1) (b)
substitute
(b) the transfer or assignment is made under any of the following
orders:
(i) an order of the Family Court;
(ii) an order of another court having jurisdiction under the Family Law
Act 1975 (Cwlth);
(iii) an order under the Domestic Relationships Act 1994,
part 3.2 adjusting the property interests of the parties in a domestic
relationship; or
Part
1.10 Married Persons Property
Act 1986
substitute
(2) Subsection (1) applies to 2 people in a domestic partnership who are
not married to each other in the same way as it applies to a husband and wife
who are living together.
Note For the meaning of domestic partnership, see
Legislation Act, s 169.
Part
1.11 Nature Conservation Act
1980
[1.33] Section
74AG heading
substitute
74AG Extension of time to pay
penalty
omit
pensioner
substitute
person
omit
Part
1.12 NRMA–ACT Road Safety Trust
Act 1992
[1.36] Section
2, definition of deed of trust, paragraph (a)
substitute
(a) the document executed as mentioned in section 3, as modified in its
effect under section 4; or
insert
4 Modification of effect of deed
The deed of trust has effect as if a reference in the deed to a
person’s spouse were a reference to a domestic partner of the
person.
Note For the meaning of domestic partner, see
Legislation Act, s 169.
Part
1.13 Public Trustee Act
1985
[1.38] Section
4 (1), new definition of domestic partner
insert
domestic partner, for part 5 (Unclaimed property)—see
section 33A.
in part 5, insert
33A Meaning of domestic partner for pt
5
In this part:
domestic partner, of the owner of property, means the
domestic partner of the owner when the owner was last known to be
alive.
Note This definition qualifies the meaning of domestic
partner given by the Legislation Act, s 169.
[1.40] Section
38 (1) (e)
substitute
(e) apply the property, or any money received by the public trustee as
manager of the property, for the maintenance, education, advancement or benefit
of the domestic partner, children or other dependants of the owner of the
property; and
[1.41] Section
39 (2) (b)
substitute
(b) the domestic partner, a child, or any other dependant of the owner of
the property; or
[1.42] Section
39 (5) (d)
substitute
(d) the interest of the domestic partner, a child, or any other dependant
of the owner of the property; and
[1.43] Section
39 (6) (c) (iii)
substitute
(iii) the interest of the domestic partner, a child, or any other
dependant of the owner of the property; or
Part
1.14 Rates and Land Rent (Relief) Act
1970
[1.44] Section
2, definition of domestic partner
omit
[1.45] Section
2, new definitions
insert
domestic relationship—see the Domestic Relationships
Act 1994, section 3 (1).
eligible person, for part 3—see section 21A
(1).
partner—a person’s partner is
either of the following:
(a) the person’s spouse;
(b) someone with whom the person has a domestic relationship.
partnership means the relationship between 2
partners.
[1.46] Section
2, definition of pensioner, paragraph (d)
omit
by the person
substitute
by the person; or
[1.47] Section
2, definition of pensioner, new paragraphs (e), (f) and
(g)
insert
(e) a person who is (or was) in a partnership who would be eligible as a
pensioner mentioned in paragraph (a) or (b) because of that partnership if the
person’s partner were (or had been) the person’s partner
within the meaning of the Social Security Act 1991 (Cwlth),
section 4; or
(f) a person who is (or was) in a partnership who would be eligible as a
pensioner mentioned in paragraph (c) because of that partnership if the
person’s partner were (or had been) the person’s partner
within the meaning of the Veterans’ Entitlements Act 1986
(Cwlth), section 5E; or
(g) a person who was in a partnership until the death of his or her
partner who would be eligible under the Veteran’s Entitlements Act 1986
(Cwlth), section 86 to be given treatment mentioned in paragraph (d) because
of the partner’s death if the person were the partner’s dependant
within the meaning of the Veterans’ Entitlements Act 1986 (Cwlth),
section 11.
Note for pars (e), (f) and (g)
This Act, def partner and def partnership apply
to spouses, but also extend to unmarried partners (irrespective of their sex) in
domestic relationships within the meaning of the Domestic
Relationships Act 1994, s 3 (1). The Social Security Act 1991
(Cwlth), s 4, def partner and the Veterans’ Entitlements
Act 1986 (Cwlth), s 5E, def partner and s 11, def
dependant only apply to partners (or former partners) of the
opposite sex to each other in married or marriage-like relationships.
substitute
(c) that the owners are a pensioner and his or her partner, if the partner
is not a pensioner; or
[1.49] Section
21A (1), definition of eligible person, paragraphs (b) and
(c)
substitute
(b) a non-pensioner who is the partner of a special rate pensioner and is
not separated from the pensioner; or
(c) a non-pensioner who—
(i) was the partner of a special rate pensioner until the
pensioner’s death; and
(ii) was not separated from the pensioner immediately before the death;
and
(iii) has not subsequently formed a partnership with anyone
else.
Part
1.15 Supreme Court Act
1933
substitute
(2) Subject to subsection (3), a person to whom this section applies is
entitled to the same remuneration, allowances and entitlements as judges of the
Federal Court are entitled to from time to time.
[1.51] Section
37U (3) (g)
omit
tribunal.
substitute
tribunal; and
[1.52] New
section 37U (3) (h)
insert
(h) a reference in the Judges’ Pensions Act 1968 (Cwlth) to a
marital relationship included a reference to a relationship
between 2 people of the same sex, subject otherwise to that Act, section 4AB
(Marital relationship); and
(i) a reference in the Judges (Long Leave Payments) Act 1979
(Cwlth) to a widow or widower of a judge who has died included
a reference to anyone else who was the domestic partner of the judge when the
judge died.
[1.53] Section
37U (3), note
substitute
Note 1 A reference to a Cwlth Act includes a reference to the Act as
originally made and as amended (see Legislation Act, s 102).
Note 2 For the meaning of domestic partner, see
Legislation Act, s 169.
Part
1.16 Transplantation and Anatomy Act
1978
[1.54] Section
4 (1), definition of child, paragraph (b)
substitute
(b) is not in a domestic partnership.
Note For the meaning of domestic partnership, see
Legislation Act, s 169.
Part
1.17 Trustee Act
1925
[1.55] Section
45 (6) (a) and (b)
omit
spouse
substitute
domestic partner
[1.56] Section
45 (6), new note
insert
Note For the meaning of domestic partner, see
Legislation Act, s 169.
[1.57] New
section 45 (10), (11) and (12)
insert
(10) Subsection (6) (a) and (b), as in force immediately before the
commencement day, continue to apply if the trust of the income fails or
determines during the trust period and before that day.
(11) Subsection (10), this subsection and subsection (12) expire 2 years
after the commencement day.
Note The expiry of transitional provisions does not end their effect
(see Legislation Act, s 88).
(12) In subsections (10) and (11):
commencement day means the day the Sexuality
Discrimination Legislation Amendment Act 2003, schedule 1, amendment 1.55
commenced.
Note The Sexuality Discrimination Legislation Amendment Act
2003, sch 1 amended the Act, s 45 (6) (a) and (b) by omitting
‘spouse’ and substituting ‘domestic partner’.
Part
1.18 Trustee Companies Act
1947
omit
wife, husband,
substitute
domestic partner,
[1.59] Section
21 (1), new note
insert
Note For the meaning of domestic partner, see
Legislation Act, s 169.
Part
1.19 Workers Compensation Act
1951
omit
or the person’s spouse
[1.61] Dictionary,
definition of child
substitute
child, of a worker, means a child of the worker who
is—
(a) not in a domestic partnership; and
(b) under16 years old or a full-time student.
Note For the meaning of domestic partnership, see the
Legislation Act, s 169.
[1.62] Dictionary,
new definition of domestic partner
insert
domestic partner, of a worker who has died, means the person
who was the worker’s domestic partner when the worker died.
Note This definition qualifies the meaning of domestic
partner given by the Legislation Act, s 169.
[1.63] Dictionary,
definition of member of the family
omit
spouse
substitute
domestic partner
[1.64] Dictionary,
definition of member of the family, new note
insert
Note For the meaning of domestic partner, see the
Legislation Act, s 169. If a worker has died, the definition of domestic
partner elsewhere in the dictionary provides that the term refers to the
person who was the worker’s domestic partner when the worker
died.
[1.65] Dictionary,
definition of spouse
omit
Schedule
2 Other
amendments
(see s 3)
[2.1] New
section 13 (2A)
insert
(2A) However, conduct of the deceased consisting of a non-violent sexual
advance (or advances) towards the accused—
(a) is taken not to be sufficient, by itself, to be conduct to which
subsection (2) (b) applies; but
(b) may be taken into account together with other conduct of the deceased
in deciding whether there has been an act or omission to which subsection (2)
applies.
renumber subsections when Act next republished under Legislation
Act
Part
2.2 Disability Services Act
1991
[2.3] Schedule
2, clause 5
substitute
5 Programs and services should be designed and administered to meet the
needs of people with disabilities who may experience additional disadvantage
because of their sex, sexuality, ethnic origin, physical isolation or
Aboriginality.
Part
2.3 Discrimination Act
1991
in part 1, insert
6A Offences against Act—application of Criminal
Code etc
Other legislation applies in relation to offences against this
Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to offences against pt 6 (see the Code, pt
2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used for
offences to which the Code applies (eg conduct,
intention, recklessness and strict
liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that
are expressed in penalty units.
[2.5] Part
6 heading and section 65 heading
substitute
Part 6 Racial, sexuality and HIV/AIDS
vilification
65 Definitions for pt 6
[2.6] Section
65, new definition
insert
HIV/AIDS status means status as a person who has the Human
Immunodeficiency Virus or Acquired Immune Deficiency Syndrome.
substitute
66 Unlawful vilification—race, sexuality
etc
(1) It is unlawful for a person, by a public act, to incite hatred
towards, serious contempt for, or severe ridicule of, a person or group of
people on the ground of any of the following characteristics of the person or
members of the group:
(a) race;
(b) sexuality;
(c) transsexuality;
(d) HIV/AIDS status.
(2) This section does not make unlawful—
(a) a fair report of an act mentioned in subsection (1); or
(b) a communication or the distribution or dissemination of any matter
consisting of a publication that is subject to a defence of absolute privilege
in a proceeding for defamation; or
(c) a public act, done reasonably and honestly, for academic, artistic,
scientific or research purposes or for other purposes in the public interest,
including discussion or debate about and presentations of any matter.
67 Serious vilification offence—race, sexuality
etc
(1) A person commits an offence if—
(a) the person intentionally carries out an act; and
(b) the person is reckless about whether the act is a public act;
and
(c) the act is a threatening act; and
(d) the person is reckless about whether the act incites hatred towards,
serious contempt for, or severe ridicule of, a person or group of people on the
ground of any of the following characteristics of the person or members of the
group:
(i) race;
(ii) sexuality;
(iii) transsexuality;
(iv) HIV/AIDS status.
Maximum penalty: 50 penalty units.
(2) For subsection (1) (c), an act is a threatening act only
if the person carrying it out—
(a) by the act, intentionally threatens physical harm towards, or towards
any property of, the person, or members of the group, mentioned in subsection
(1) (d); or
(b) is reckless about whether the act incites others to threaten such
physical harm.
[2.8] Dictionary,
new definition of HIV/AIDS status
insert
HIV/AIDS status, for part 6 (Racial, sexuality and HIV/AIDS
vilification)—see section 65.
[2.9] Dictionary,
definition of public act
substitute
public act, for part 6 (Racial, sexuality and HIV/AIDS
vilification)—see section 65.
Part
2.4 Evidence Act
1971
[2.10] Sections
54, 55, 57 and 74
omit
Part
2.5 Evidence (Miscellaneous
Provisions) Act 1991
insert
Division 4.7 Family
objections
74 Application of div 4.7
(1) This division applies in relation to criminal proceedings.
(2) This division does not apply in relation to proceedings for any of the
following offences:
(a) an offence against the Crimes Act 1900, part 2 (Offences
against the person) or part 3 (Sexual offences), if the offence is against a
person who is under 16 years old;
(b) an offence against any of the following provisions of the Children
and Young People Act 1999:
• section 374 (Dangerous employment)
• section 375 (Regulation of employment of children and young
people)
• section 376 (Duty of employers of children and young
people);
(c) a domestic violence offence within the meaning of the
Protection Orders Act 2001, section 9 (2), or an offence against that
Act, section 34 (Offence for contravention of protection order).
75 Family objections to giving
evidence
A person who, when required to give evidence, is the domestic partner,
parent or child of a defendant may make an objection (a family
objection) to being required, as a witness for the
prosecution—
(a) to give evidence; or
(b) to give evidence of a communication between the person and the
defendant.
Note For the meaning of domestic partner, see
Legislation Act, s 169.
76 Time to make family objection
A person may only make a family objection before giving evidence or, if
the person has begun to give evidence, as soon as practicable after becoming
aware of the right to object.
77 Person to be made aware of right to make family
objection
If it appears to the court that a person may have a right to make a family
objection, the court must satisfy itself that the person is aware of the effect
of this division as it may apply to the person.
78 Family objections to be heard in absence of
jury
If there is a jury, the court must hear and decide a family objection in
the absence of the jury.
79 Matters court may consider in deciding family
objection
(1) A court must not require a person who makes a family objection to give
the evidence if the court finds that—
(a) there is a likelihood that harm would or might be caused (directly or
indirectly) to the person, or to the relationship between the person and the
defendant, if the person gives the evidence; and
(b) the nature and extent of that harm outweighs the desirability of
having the evidence given.
(2) In making a decision under subsection (1), the court must take into
account matters including the following:
(a) the nature and seriousness of the offence for which the defendant is
being prosecuted;
(b) the substance and importance of any evidence that the person might
give and the weight likely to be attached to it;
(c) whether any other evidence about the matters to which the evidence of
the person would relate is reasonably available to the prosecution;
(d) the nature of the relationship between the defendant and the
person;
(e) whether, in giving the evidence, the person would have to disclose
something that was received by the person in confidence from the
defendant.
80 Prosecution not to comment about family
objections
If the court has made a decision on a family objection by a person, the
prosecution must not comment on any of the following:
(a) the objection;
(b) the decision on the objection;
(c) the failure of the person to give evidence.
81 Comments by judge and parties about failure to
give evidence by family members
(1) This section applies to a proceeding for an indictable offence in
which a defendant’s family member fails to give evidence.
(2) The judge or a party (other than the prosecution) may comment on the
failure to give evidence.
(3) However, unless the comment is made by another defendant in the
proceeding, the comment must not suggest that the family member failed to give
evidence because—
(a) the defendant was guilty of the offence; or
(b) the family member believed the defendant to be guilty of the
offence.
(4) If 2 or more defendants are being tried together for the offence, and
any defendant comments on the failure of any other defendant’s family
member to give evidence, the judge may do either or both of the
following:
(a) comment on the failure to give evidence;
(b) comment on the defendant’s comment.
(5) In this section:
family member, of a defendant, means the defendant’s
domestic partner, parent or child at the time of the failure to give
evidence.
Note For the meaning of domestic partner, see
Legislation Act, s 169.
[2.12] Sections
74 and 75
renumber as sections 82 and 83
[2.13] Dictionary,
new definitions of family objection
insert
family objection, for division 4.7 (Family
objections)—see section 75.
Part
2.6 Magistrates Court Act
1930
omit
Part
2.7 Public Baths and Public Bathing
Act 1956
[2.15] Sections
18 and 30
omit
Endnote
Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2003
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