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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Attorney-General’s Portfolio)
Bill 2016
A BILL FOR
An Act to amend various Acts within the portfolio of the
Attorney-General.
Contents
Part 1—Preliminary
1Short title
2Commencement
3Amendment provisions
Part 2—Amendment of Child Sex
Offenders Registration Act 2006
4Amendment of Schedule 1—Class 1 and 2
offences
Part 3—Amendment of Civil Liability
Act 1936
5Substitution of Part 9 Division 12
Division 12—Effect of apology on
liability
75Effect of apology
on liability
Part 4—Amendment of Criminal Law
Consolidation Act 1935
6Amendment of section 5AA—Aggravated
offences
7Amendment of section 14—Criminal
liability for neglect where death or serious harm results from unlawful
act
8Amendment of section 278—Joinder of
charges
9Amendment of section 353—Determination of
appeals in ordinary cases
Part 5—Amendment of Criminal Law
(Forensic Procedures) Act 2007
10Amendment of section
3—Interpretation
11Amendment of section 14—Suspects
procedures
12Amendment of section
20A—Interpretation
13Amendment of section 41—Commissioner may
maintain DNA database system
14Amendment of section 42—Storage of
information on DNA database system
15Insertion of section 50A
50ARelease and
disclosure for scientific purposes
16Amendment of section 55—Power to require
forensic procedure on deceased person
Part 6—Amendment of Criminal Law
(Sentencing) Act 1988
17Amendment of section 19A—Intervention
orders may be issued on finding of guilt or sentencing
18Amendment of section
33—Interpretation
Part 7—Amendment of District Court
Act 1991
19Amendment of section 54—Accessibility to
Court records
Part 8—Amendment of Electoral
Act 1985
20Amendment of section
130A—Interpretation
21Amendment of section 130ZH—Gifts to
relevant entities
Part 9—Amendment
of Evidence Act 1929
22Amendment of section
4—Interpretation
Part 10—Amendment of Intervention
Orders (Prevention of Abuse) Act 2009
23Amendment of section
3—Interpretation
24Amendment of section 29—Special
arrangements for evidence and cross-examination
25Amendment of Schedule 1—Transitional
provisions
Part 11—Amendment of Juries
Act 1927
26Substitution of section 11
27Insertion of section 17
17Right of
exemption for persons above the age of 70 years
Part 12—Amendment of Magistrates
Court Act 1991
28Amendment of section 51—Accessibility to
Court records
Part 13—Amendment of Statutes
Amendment (Vulnerable Witnesses) Act 2015
29Amendment of Schedule
1—Transitional provision
Part 14—Amendment of Subordinate
Legislation Act 1978
30Amendment of section 16A—Regulations to
which this Part applies
Part 15—Amendment of Summary Offences
Act 1953
31Amendment of section 33—Indecent or
offensive material
32Amendment of section
74EA—Application and interpretation
33Amendment of section 81—Power to search,
examine and take particulars of persons
Part 16—Amendment of Summary
Procedure Act 1921
34Amendment of section
4—Interpretation
35Amendment of section 99AAC—Child
protection restraining orders
36Amendment of section 106—Taking of
evidence at preliminary examination
Part 17—Amendment of Supreme Court
Act 1935
37Amendment of section 131—Accessibility
to court records
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment
(Attorney-General’s Portfolio) Act 2016.
(1) Subject to this section, this Act will come into operation on the day
on which it is assented to by the Governor.
will come into operation on the day on which section 6 of the
Criminal
Law (Forensic Procedures) (Blood Testing for Diseases) Amendment Act
2015
comes into operation.
(3)
Subsection (2)
only applies if, at the assent of the Governor to this Act, section 6 of
the
Criminal
Law (Forensic Procedures) (Blood Testing for Diseases) Amendment
Act 2015
has not come into operation.
will come into operation immediately after section 5 of the
Statutes
Amendment (Vulnerable Witnesses) Act 2015
comes into operation.
(5)
Section 29
will come into operation immediately after Schedule 1 of the
Statutes
Amendment (Vulnerable Witnesses) Act 2015
comes into operation.
will come into operation immediately after section 26 of the
Statutes
Amendment (Vulnerable Witnesses) Act 2015
comes into operation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Child Sex Offenders Registration
Act 2006
4—Amendment
of Schedule 1—Class 1 and 2 offences
(1) Schedule 1, clause 1(1), definition of sexual
offence—after paragraph (b) insert:
(ba) an offence against section 51 of the
Criminal
Law Consolidation Act 1935
(sexual exploitation of person with a cognitive impairment); or
(2) Schedule 1, clause 2—after paragraph (eb) insert:
(ec) an offence against section 51 of the
Criminal
Law Consolidation Act 1935
(sexual exploitation of person with a cognitive impairment) involving
sexual intercourse if the victim was a child;
(3) Schedule 1, clause 3—after paragraph (b) insert:
(ba) an offence against section 51 of the
Criminal
Law Consolidation Act 1935
(sexual exploitation of person with a cognitive impairment) involving
indecent contact if the victim was a child;
Part 3—Amendment
of Civil Liability
Act 1936
5—Substitution
of Part 9 Division 12
Part 9 Division 12—delete Division 12 and substitute:
Division 12—Effect of apology on
liability
75—Effect of apology on
liability
(1) An apology made by or on behalf of a person in connection with any
matter alleged to have been caused by the person—
(a) does not constitute an express or implied admission of fault or
liability by the person in connection with that matter; and
(b) is not relevant to the determination of fault or liability in
connection with that matter.
(2) Evidence of an apology made by or on behalf of a person in connection
with any matter alleged to have been caused by the person is not admissible in
any civil proceedings as evidence of the fault or liability of the person in
connection with that matter.
(3) This section does not apply in relation to—
(a) liability in respect of the tort of defamation; and
(b) civil liability of a kind that is excluded from the operation of this
section by regulation.
(4) In this section—
apology means an expression of sympathy or regret, or of a
general sense of benevolence or compassion, in connection with any matter,
whether or not the apology admits or implies an admission of fault in connection
with the matter.
Part 4—Amendment
of Criminal Law Consolidation
Act 1935
6—Amendment
of section 5AA—Aggravated offences
(1) Section 5AA(1)(j)—delete "physical or mental disability" and
substitute:
physical disability or cognitive impairment
(2) Section 5AA(5)—after the definition of circumstances of
heightened risk insert:
cognitive impairment includes—
(a) a developmental disability (including, for example, an intellectual
disability, Down syndrome, cerebral palsy or an autistic spectrum
disorder);
(b) an acquired disability as a result of illness or injury (including,
for example, dementia, a traumatic brain injury or a neurological
disorder);
(c) a mental illness;
7—Amendment
of section 14—Criminal liability for neglect where death or serious harm
results from unlawful act
(1) Section 14(4)—after the definition of child
insert:
cognitive impairment includes—
(a) a developmental disability (including, for example, an intellectual
disability, Down syndrome, cerebral palsy or an autistic spectrum
disorder);
(b) an acquired disability as a result of illness or injury (including,
for example, dementia, a traumatic brain injury or a neurological
disorder);
(c) a mental illness;
(2) Section 14(4), definition of vulnerable
adult—delete "physical or mental disability" and
substitute:
physical disability, cognitive impairment
8—Amendment
of section 278—Joinder of charges
Section 278(4), definition of sexual offence, (a)—after
"50, " insert:
51,
9—Amendment
of section 353—Determination of appeals in ordinary
cases
Section 353(4)(a)—delete "a different sentence should have been
passed" and substitute:
the sentence is affected by error such that the defendant should be
re-sentenced
Part 5—Amendment
of Criminal Law (Forensic Procedures)
Act 2007
10—Amendment
of section 3—Interpretation
(1) Section 3(1)—after the definition of guardian
insert:
gun shot residue procedure means a forensic procedure
consisting of the taking of samples by swab or other similar means of the hands
and fingers of a person for the purposes of determining the presence of gun shot
residue;
(2) Section 3(1), definition of intrusive forensic
procedure, (b)—delete paragraph (b) and substitute:
(b) the taking of a dental impression; or
(3) Section 3(1)—after the definition of serious
offence insert:
simple forensic procedure means a forensic procedure
consisting of 1 or more of the following:
(a) a simple identity procedure;
(b) a gun shot residue procedure;
(c) a forensic procedure prescribed by regulation for the purposes of this
definition;
11—Amendment
of section 14—Suspects procedures
Section 14(2)(b)(i)—delete "simple identity procedure" and
substitute:
simple forensic procedure
12—Amendment
of section 20A—Interpretation
Section 20A, definition of prescribed employment—after
paragraph (e) insert:
(f) employment as an officer or employee of the administrative unit of the
Public Service that is responsible for assisting a Minister in the
administration of the
Correctional
Services Act 1982
;
13—Amendment
of section 41—Commissioner may maintain DNA database
system
(1) Section 41(2)(b)—delete "NCIDD" wherever occurring and
substitute in each case:
a national database
(2) Section 41(2)(b)—after subparagraph (iv) insert:
(v) any other thing required or authorised to be done under the
corresponding law or otherwise authorised by law.
(3) Section 41(3), definition of NCIDD—delete the
definition
14—Amendment
of section 42—Storage of information on DNA database
system
Section 42(1)—after paragraph (b) insert:
(ba) the DNA profile is stored on a database kept in accordance with the
directions of the Commissioner of Police for the sole purpose of preserving a
backup copy of that DNA profile; or
After section 50 insert:
50A—Release and disclosure for scientific
purposes
(1) Despite any
provision of this Act or any other Act or law, a prescribed authority may
authorise the release, disclosure and use of forensic material and information
obtained under this Act for the following purposes:
(a) the validation or development of forensic methodologies;
(b) the furtherance of forensic research and methodologies.
(2) Forensic material and information released, disclosed or used under
subsection (1)
may only be released, disclosed or used in a manner such that it is not
possible to identify the person from whom the material or information was
obtained or to whom the material or information relates.
(3)
Subsection (1)
does not apply to forensic material or information obtained by carrying
out a volunteers and victims procedure on a person if the DNA profile of that
person is contained only on a volunteers (limited purposes) index.
16—Amendment
of section 55—Power to require forensic procedure on deceased
person
Section 55(1)—delete subsection (1) and substitute:
(1) A senior police officer may, by instrument in writing, authorise the
carrying out of a forensic procedure specified in the instrument on the body, a
body part, human tissue or other human remains of a deceased person if satisfied
that the evidence obtained from the carrying out of the procedure is likely to
assist in the investigation of a serious offence or in the identification of the
deceased person.
Part 6—Amendment
of Criminal Law (Sentencing)
Act 1988
17—Amendment
of section 19A—Intervention orders may be issued on finding of guilt or
sentencing
Section 19A(4), definition of sexual offence—after
paragraph (f) insert:
(fa) an offence of sexual exploitation of a person with a cognitive
impairment under section 51 of the
Criminal
Law Consolidation Act 1935
; or
18—Amendment
of section 33—Interpretation
Section 33(1), definition of serious sexual
offence,(a)(i)—after "49, " insert:
51,
Part 7—Amendment
of District Court
Act 1991
19—Amendment
of section 54—Accessibility to Court records
(1) Section 54(2)—delete "A member of the public may inspect or
obtain a copy of the following material only with the permission of the Court"
and substitute:
A member of the public may make an application to the Court for the Court's
permission to inspect or obtain a copy of the following material relating to
proceedings that are, or have been, before the Court
(2) Section 54—after subsection (2) insert:
(2a) The applicant and any party to the proceedings are entitled to be
heard on an application under subsection (2).
Part 8—Amendment
of Electoral
Act 1985
20—Amendment
of section 130A—Interpretation
Section 130A(1), definition of political
expenditure—after paragraph (h) insert:
or
(i) expenditure of an allowance or benefit of a kind contemplated under
section 6A(1) of the
Parliamentary
Remuneration Act 1990
; or
(j) expenditure of a prescribed kind;
21—Amendment
of section 130ZH—Gifts to relevant entities
(1) Section 130ZH(1)—delete "disclosure period" and
substitute:
financial year
(2) Section 130ZH(4)—delete "during the period"
(3) Section 130ZH(7)(a)—delete paragraph (a)
(4) Section 130ZH(7)(b)(i)—delete "start of the disclosure period
until the start of the designated period for the relevant election" and
substitute:
period commencing 30 days after polling day in a general election until the
start of the designated period for the next general election
Part 9—Amendment
of Evidence
Act 1929
22—Amendment
of section 4—Interpretation
Section 4—after its present contents (now to be designated as
subsection (1)) insert:
(2) For the purposes of this Act, a witness who is to give oral evidence
in proceedings will be taken to have complex communication needs
if the witness's ability to give the evidence is significantly affected by a
difficulty to communicate effectively with the court, whether the communication
difficulty is temporary or permanent and whether caused by disability, illness,
injury or some other cause.
(3) However, a witness who is to give oral evidence in proceedings whose
native language is not English will not be taken to have complex
communication needs merely because the witness is not reasonably fluent
in English (although the witness may be entitled to give the evidence through an
interpreter under section 14).
Part 10—Amendment
of Intervention Orders (Prevention of Abuse)
Act 2009
23—Amendment
of section 3—Interpretation
Section 3(1)—after the definition of Children's Protection Act
order insert:
cognitive impairment includes—
(a) a developmental disability (including, for example, an intellectual
disability, Down syndrome, cerebral palsy or an autistic spectrum
disorder);
(b) an acquired disability as a result of illness or injury (including,
for example, dementia, a traumatic brain injury or a neurological
disorder);
(c) a mental illness;
24—Amendment
of section 29—Special arrangements for evidence and
cross-examination
Section 29(2)(f)—delete paragraph (f) and substitute:
(f) that extra allowance be made for breaks during, and time to be given
for, the taking of evidence;
(g) if the witness has a physical disability or cognitive
impairment—that the evidence be taken in a particular way (to be specified
by the Court) that will, in the Court's opinion, facilitate the taking of
evidence from the witness or minimise the witness's embarrassment or distress
(including, if the witness has complex communication needs, with such
communication assistance as may be specified by the Court under section 14A of
the
Evidence
Act 1929
).
25—Amendment
of Schedule 1—Transitional provisions
Schedule 1, clause 37—after subclause (4) insert:
(5) For the avoidance of doubt, an intervention order continued in force
under this clause that includes a term fixing a date for the expiry of the order
will expire, or will be taken to have expired, on that date unless the Court
has, before that date, varied the order under subclause (4) so as to remove the
term and make the order ongoing.
Part 11—Amendment
of Juries Act 1927
Section 11—delete the section and substitute:
11—Qualification of jurors
Each person residing in South Australia who is enrolled on the roll of
electors and who is entitled to vote at the election of members of the House of
Assembly is, subject to the exceptions mentioned in this Act, qualified and
liable to serve as a juror.
After section 16 insert:
17—Right of exemption for persons above the age of
70 years
(1) A judge or the sheriff must, on application by or on behalf of a
person summoned to render jury service but not serving on a jury in the course
of a criminal trial, excuse the person from attendance or further attendance in
compliance with the summons if satisfied that the person is above the age of 70
years.
(2) Information provided in support of an application may be required to
be given on oath or to be in the form of or verified by an affidavit or
statutory declaration.
Part 12—Amendment
of Magistrates Court
Act 1991
28—Amendment
of section 51—Accessibility to Court records
(1) Section 51(2)—delete "A member of the public may inspect or
obtain a copy of the following material only with the permission of the Court"
and substitute:
A member of the public may make an application to the Court for the Court's
permission to inspect or obtain a copy of the following material relating to
proceedings that are, or have been, before the Court
(2) Section 51—after subsection (2) insert:
(2a) The applicant and any party to the proceedings are entitled to be
heard on an application under subsection (2).
Part 13—Amendment
of Statutes Amendment (Vulnerable Witnesses) Act
2015
29—Amendment
of Schedule 1—Transitional provision
(1) Schedule 1, clause 1(1)—delete "sexual" wherever
occurring
(2) Schedule 1, clause 1(2)—delete subclause (2) and
substitute:
(2) An audio visual
record of the statement of a witness to whom this subclause applies made to an
investigating or other authority before the commencement of section 10 of this
Act as part of a formal interview process in relation to the investigation of an
alleged offence may, after the commencement of that section, be admitted under
section 13BA of the
Evidence
Act 1929
as evidence in the trial of a charge of the offence as if the recording
had been made pursuant to Division 3 of Part 17 of the
Summary
Offences Act 1953
in accordance with the requirements of that Division.
Note—
Section 10 of this Act inserts section 13BA into the
Evidence
Act 1929
.
(3)
Subclause (2)
applies—
(a) to a witness who is—
(i) a child of or under the age of 14 years; or
(ii) a person with a disability that adversely affects the person's
capacity to give a coherent account of the person's experiences or to respond
rationally to questions; and
(b) despite section 34LA(2)(c) of the
Evidence
Act 1929
.
Part 14—Amendment
of Subordinate Legislation
Act 1978
30—Amendment
of section 16A—Regulations to which this Part applies
Section 16A—after paragraph (c) insert:
(d) regulations made pursuant to an agreement for uniform legislation
between this State and the Commonwealth or other States or Territories of the
Commonwealth and prescribed for the purposes of this section; and
Part 15—Amendment
of Summary Offences
Act 1953
31—Amendment
of section 33—Indecent or offensive material
Section 33(1), definition of material, (d)—delete "tape
or other object" and substitute:
recording or other object or thing
32—Amendment
of section 74EA—Application and interpretation
(1) Section 74EA(2), definition of serious offence against the
person, (a)—before "attempted murder" insert:
murder or
(2) Section 74EA(2), definition of serious offence against the
person, (b)—before "attempted manslaughter" insert:
manslaughter or
(3) Section 74EA(2), definition of serious offence against the
person, (d)—before subparagraph (i) insert:
(ai) an offence of criminal neglect under section 14 of the
Criminal
Law Consolidation Act 1935
; or
(4) Section 74EA(2), definition of serious offence against the
person, (d)—after subparagraph (ii) insert:
(iia) an offence of causing harm under section 24 of the
Criminal
Law Consolidation Act 1935
; or
33—Amendment
of section 81—Power to search, examine and take particulars of
persons
(1) Section 81(3)(e)—delete "an intimate search must be recorded on
videotape" and substitute:
an audio visual record of an intimate search must be made
(2) Section 81(3)(f)—delete "record an intimate search on videotape"
and substitute:
make an audio visual record of an intimate search
(3) Section 81(3)(f)(i)(A)—delete "recording the search on
videotape" and substitute:
making an audio visual record of the search
(4) Section 81(3)(g)—delete "if an intimate search, or that part of
an intimate search that consists of an intimate intrusive search, is not to be
recorded on videotape," and substitute:
if an audio visual record of an intimate search, or that part of an
intimate search that consists of an intimate intrusive search, is not to be
made,
(5) Section 81(3)(g)(ii)—delete "the reading is recorded on
videotape" and substitute:
an audio visual record of the reading is made
(6) Section 81(3)(g)(iii)—delete "videotape" and
substitute:
audio visual
(7) Section 81(3)(g)(v)—delete "videotape" and substitute:
audio visual
(8) Section 81(3a)—delete "a videotape recording" and
substitute:
an audio visual record
(9) Section 81(3b)—delete "a videotape recording" and
substitute:
an audio visual record
(10) Section 81(3b)(a)—delete "videotape" and substitute:
audio visual record
(11) Section 81(3b)(b)—delete "videotape recording" and
substitute:
audio visual record
(12) Section 81(3c)—delete "a videotape" and substitute:
an audio visual record
(13) Section 81(3d)—delete "a videotape recording" and
substitute:
an audio visual record
(14) Section 81(3e)—delete "a videotape recording" and
substitute:
an audio visual record
(15) Section 81(3f)—delete "A videotape recording" and
substitute:
An audio visual record
(16) Section 81(3g)—delete "videotape recordings" and
substitute:
audio visual records
Part 16—Amendment
of Summary Procedure
Act 1921
34—Amendment
of section 4—Interpretation
(1) Section 4(1)—after the definition of the Chief
Magistrate insert:
cognitive impairment includes—
(a) a developmental disability (including, for example, an intellectual
disability, Down syndrome, cerebral palsy or an autistic spectrum
disorder);
(b) an acquired disability as a result of illness or injury (including,
for example, dementia, a traumatic brain injury or a neurological
disorder);
(c) a mental illness;
(2) Section 4(1), definition of sexual offence—after
paragraph (c) insert:
(ca) an offence of sexual exploitation of a person with a cognitive
impairment under section 51 of the
Criminal
Law Consolidation Act 1935
; or
35—Amendment
of section 99AAC—Child protection restraining orders
Section 99AAC(8), definition of child sexual
offence—after paragraph (d) insert:
(da) an offence of sexual exploitation of a person with a cognitive
impairment under section 51 of the
Criminal
Law Consolidation Act 1935
;
36—Amendment
of section 106—Taking of evidence at preliminary
examination
Section 106(3)—after "victim of an alleged sexual offence"
insert:
, a person with a cognitive impairment that adversely affects the person's
capacity to give a coherent account of the person's experiences or to respond
rationally to questions
Part 17—Amendment
of Supreme Court
Act 1935
37—Amendment
of section 131—Accessibility to court records
(1) Section 131(2)—delete "A member of the public may inspect or
obtain a copy of the following material only with the permission of the court"
and substitute:
A member of the public may make an application to the court for the court's
permission to inspect or obtain a copy of the following material relating to
proceedings that are, or have been, before the court
(2) Section 51—after subsection (2) insert:
(2a) The applicant and any party to the proceedings are entitled to be
heard on an application under subsection (2).