Crimes Legislation Amendment Act 2015 (ACT)

Case

Crimes Legislation Amendment Act 2015

A2015-3

Contents

Page

Part 1      Preliminary

1            Name of Act  2

2            Commencement  2

3            Legislation amended  2

Part 2Children and Young People Act 2008

4            Orders to bring young detainee before court etcSection 102 (2), new note  3

5            New section 876A  3

Part 3Crimes Act 1900

6Offences against Act—application of Criminal Code etc
Section 7A, note 1  4

7           New section 61B  4

Part 4Crimes (Forensic Procedures) Act 2000

8            Interview friendSection 16 (1)  8

9            Securing the presence of suspects at hearings—suspect not in custodySection 37 (1)  8

10          Section 37 (3) and (4)  8

11          Procedure at hearing of application for orderSection 38 (3)  9

12          Action to be taken on making of ordersSection 39 (1) (d)  9

13          Applications for interim ordersSection 42 (5)  9

14          Rules for carrying out forensic procedures—transgender and intersex peopleSection 49B (3)  10

15          Section 54  10

16          Presence of interview friend or lawyer while forensic procedure is carried outSection 57 (1) and (3)  11

17          Securing the presence of serious offender at hearing—offender in custodySection 77A (2)  12

18          Securing the presence of serious offender at hearing—offender not in custodySection 77B (2)  12

19          Section 77B (4) and (5)  12

20          Procedure at hearing of application for orderSection 77C (3)  13

21          Section 77C (5)  13

22          Section 77C (6)  13

23          Powers of lawyers and interview friendsSection 103 (1) (b)  13

24          Obligation of investigating police officers relating to electronic recordingsSection 104 (2) (b)  14

25          Dictionary, new definition of Aboriginal or Torres Strait Islander person    14

Part 5Crimes (Sentence Administration) Act 2005

26          Board may reject parole application without inquirySection 122 (2), new example  15

Part 6Crimes (Sentencing) Act 2005

27          Victim impact statements—form and contentsNew section 51 (5A)  16

28          Meaning of supervision conditionSection 133U (2), definition of director-general, paragraph (b)             16

29          Meaning of accommodation orderSection 133Y (2), definition of director-general, paragraph (b)              16

Part 7Crimes (Surveillance Devices) Act 2010

30          What must a retrieval warrant contain?New section 22 (4)  17

Part 8Criminal Code 2002

31          False statement by officer of bodySection 351 (1) (a)  18

32          New part 6.4A  18

Part 9Firearms Act 1996

33          Authority to possess and use firearms temporarilyNew section 14 (2) (ba)  20

34          Section 14 (2) (c) (ii)  20

35          New section 14 (2A)  20

36          Unregulated firearms—forfeitureSection 30 (2)  20

37          Authority conferred by licence—additional mattersNew section 53 (2A) and (2B)  21

38          Return or forfeiture of things seizedSection 217 (4)  21

Part 10Prohibited Weapons Act 1996

39          Evidentiary provisionsNew section 17 (2)  22

Crimes Legislation Amendment Act 2015

A2015-3

An Act to amend legislation about crimes, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

Part 1Preliminary

  1. Name of Act

    This Act is the Crimes Legislation Amendment Act 2015.

  2. Commencement

    (1)This Act (other than section 32) commences on the day after its notification day.

    NoteThe naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

    (2)Section 32 commences 3 months after this Act’s notification day.

  3. Legislation amended

    This Act amends the following legislation:

    ·     Children and Young People Act 2008

    ·     Crimes Act 1900

    ·     Crimes (Forensic Procedures) Act 2000

    ·     Crimes (Sentence Administration) Act 2005

    ·     Crimes (Sentencing) Act 2005

    ·     Crimes (Surveillance Devices) Act 2010

    ·     Criminal Code 2002

    ·     Firearms Act 1996

    ·     Prohibited Weapons Act 1996.

Part 2Children and Young People Act 2008

  1. Orders to bring young detainee before court etc
    Section 102 (2), new note

    insert

    NoteA court may also order the director-general to bring a young detainee before the court in a civil proceeding if the young detainee consents (see s 876A).

  2. New section 876A

    insert

876APower of court to bring young detainee before it—civil proceeding

(1)For a civil proceeding, a court may order the director-general to bring a young detainee in a detention place before the court, if the young detainee consents, and to return the young detainee to the detention place in accordance with the order.

(2)In this section:

civil proceeding—see the Evidence Act 2011, dictionary, part 1.

court includes the ACAT.

Part 3Crimes Act 1900

  1. Offences against Act—application of Criminal Code etc
    Section 7A, note 1

    insert

    ·     s 61B (Intimate observations or capturing visual data etc)

  2. New section 61B

    insert

61BIntimate observations or capturing visual data etc

(1)A person (the offender) commits an offence if—

(a)the offender—

(i)observes another person with the aid of a device; or

(ii)captures visual data of another person; and

(b)a reasonable person would, in all the circumstances, consider the observing or capturing of visual data to be—

(i)an invasion of privacy; and

(ii)indecent.

Maximum penalty:  200 penalty units, imprisonment for 2 years or both.

(2)Strict liability applies to subsection (1) (b) (i).

(3)Absolute liability applies to subsection (1) (b) (ii).

(4)It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that the defendant—

(a)believed on reasonable grounds that the other person consented to the defendant observing or capturing visual data of the other person; or

(b)did not know, and could not reasonably be expected to have known, that the observing or capturing of visual data of the other person was without consent.

NoteThe defendant has a legal burden in relation to the matters mentioned in s (4) (see Criminal Code, s 59).

(5)A person (the offender) commits an offence if—

(a)the offender observes with the aid of a device or captures visual data of—

(i)another person’s genital or anal region; or

(ii)for a female or a transgender or intersex person who identifies as a female—the breasts; and

Example

using a mobile phone to take photos of a woman’s underwear under her skirt or down the front of her blouse

NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(b)a reasonable person would, in all the circumstances, consider the observing or capturing of visual data to be an invasion of privacy.

Maximum penalty:  200 penalty units, imprisonment for 2 years or both.

(6)Strict liability applies to subsection (5) (b).

(7)It is a defence to a prosecution for an offence against subsection (5) if the defendant proves that the defendant—

(a)believed on reasonable grounds that the other person consented to the defendant observing or capturing visual data of the other person’s genital or anal region or breasts; or

(b)did not know, and could not reasonably be expected to have known, that the observing or capturing of visual data of the other person’s genital or anal region or breasts was without consent.

NoteThe defendant has a legal burden in relation to the matters mentioned in s (7) (see Criminal Code, s 59).

(8)Subsections (1) and (5) do not apply to—

(a)an observation made by viewing data that was previously captured; or

(b)an observation or capturing of visual data—

(i)by a law enforcement officer acting reasonably in the performance of the officer’s duty; or

(ii)by a licensed security provider acting reasonably in carrying on a security activity authorised under the security provider’s licence; or

(iii)of a child or other person incapable of giving consent in circumstances in which a reasonable person would regard the observing or capturing of visual data as acceptable; or

Example

taking a photograph or movie of a naked newborn relative

(iv)for a scientific, medical or educational purpose; or

Example

a patient consents to her doctor taking an image of a mole on her breast for the purpose of showing another doctor for a second opinion about the mole

(v)by a person in the course of reasonably protecting premises owned by the person; or

(vi)in circumstances or for a purpose prescribed by regulation.

(9)Nothing in subsection (8) prevents a person being found guilty of an offence under or because of the Criminal Code, part 2.4 (Extensions of criminal responsibility).

(10)In this section:

breasts, of a female or a transgender or intersex person who identifies as a female, means the person’s breasts whether covered by underwear or bare.

capture visual data—a person captures visual data of another person if the person captures moving or still images of the other person by a camera or any other means in such a way that—

(a)a recording is made of the images; or

(b)the images are capable of being transmitted in real time with or without retention or storage in a physical or electronic form; or

(c)the images are otherwise capable of being distributed.

device does not include spectacles, contact lenses or a similar device when used by someone with impaired sight to overcome the impairment.

genital or anal region, of a person, means the person’s genital or anal region whether covered by underwear or bare.

law enforcement officer means—

(a)a police officer; or

(b)a member of the staff of the Australian Crime Commission established by the Australian Crime Commission Act 2002 (Cwlth).

licensed security provider means a person who holds a licence under the Security Industry Act 2003.

security activity—see the Security Industry Act 2003, section 7.

Part 4Crimes (Forensic Procedures) Act 2000

  1. Interview friend
    Section 16 (1)

    substitute

    (1)This section applies to a suspect, serious offender or volunteer who is—

    (a)a child; or

    (b)an incapable person; or

    (c)an Aboriginal or Torres Strait Islander person.

  2. Securing the presence of suspects at hearings—suspect not in custody
    Section 37 (1)

    substitute

    (1)If the suspect is not in custody, the Magistrates Court may, on the application of a police officer, issue—

    (a)a summons for the appearance of the suspect at the hearing of the application; or

    (b)a warrant for the arrest of the suspect to bring the suspect before the court for the hearing of the application.

  3. Section 37 (3) and (4)

    omit

    magistrate

    substitute

    Magistrates Court

  4. Procedure at hearing of application for order
    Section 38 (3)

    omit

    or incapable person

    substitute

    , incapable person or Aboriginal or Torres Strait Islander person

  5. Action to be taken on making of orders
    Section 39 (1) (d)

    omit

    or incapable person

    substitute

    , incapable person or Aboriginal or Torres Strait Islander person

  6. Applications for interim orders
    Section 42 (5)

    omit

    or incapable person

    substitute

    , incapable person or Aboriginal or Torres Strait Islander person

  7. Rules for carrying out forensic procedures—transgender and intersex people
    Section 49B (3)

    omit

    or incapable person

    substitute

    , incapable person or Aboriginal or Torres Strait Islander person

  8. Section 54

    substitute

  9. Sex of person carrying out or helping carry out forensic procedures

    (1)If a forensic procedure is to be carried out on a relevant person, the person carrying it out, and anyone asked under section 55 to help carry it out, must, if practicable, be of the same sex as the relevant person.

    (2)Subsection (1) does not apply—

    (a)to the taking of a handprint, fingerprint, footprint or toeprint; or

    (b)to any other non-intimate forensic procedure that may be carried out without—

    (i)touching the relevant person; or

    (ii)requiring the relevant person to remove any clothing (other than his or her overcoat, coat, jacket, gloves, socks, shoes and hat); or

    (c)if the relevant person consents to a person other than a person of the same sex as the relevant person carrying out, or helping to carry out, the forensic procedure.

    (3)If the person on whom a forensic procedure is to be carried out is a volunteer—

    (a)the volunteer may ask that a person other than a person of the same sex as the volunteer carry out, or help carry out, the procedure; and

    (b)if practicable, any such request must be complied with, despite subsection (1).

    (4)However, if the relevant person is a child—

    (a)the person carrying out the forensic procedure must ask the child, before the procedure is carried out, if the child wants a person of a particular sex to carry out, or help carry out, the procedure; and

    (b)if the child asks for a person of a particular sex to carry out, or help carry out, the forensic procedure, a person of that sex must, if practicable, carry out, or help carry out, the procedure.

  10. Presence of interview friend or lawyer while forensic procedure is carried out
    Section 57 (1) and (3)

    omit

    or incapable person

    substitute

    , incapable person or Aboriginal or Torres Strait Islander person

  11. Securing the presence of serious offender at hearing—offender in custody
    Section 77A (2)

    omit

    A magistrate

    substitute

    The Magistrates Court

  12. Securing the presence of serious offender at hearing—offender not in custody
    Section 77B (2)

    omit

    A magistrate

    substitute

    The Magistrates Court

  13. Section 77B (4) and (5)

    omit

    magistrate

    substitute

    Magistrates Court

  14. Procedure at hearing of application for order
    Section 77C (3)

    omit

    or incapable person

    substitute

    , incapable person or Aboriginal or Torres Strait Islander person

  15. Section 77C (5)

    omit

    magistrate

    substitute

    court

  16. Section 77C (6)

    omit

    A magistrate

    substitute

    The court

  17. Powers of lawyers and interview friends
    Section 103 (1) (b)

    omit

    or incapable person

    substitute

    , incapable person or Aboriginal or Torres Strait Islander person

  18. Obligation of investigating police officers relating to electronic recordings
    Section 104 (2) (b)

    omit

    or incapable person

    substitute

    , incapable person or Aboriginal or Torres Strait Islander person

  19. Dictionary, new definition of Aboriginal or Torres Strait Islander person

    insert

    Aboriginal or Torres Strait Islander person means a person who—

    (a)is a descendant of an Aboriginal person or Torres Strait Islander person; and

    (b)identifies as an Aboriginal person or Torres Strait Islander person.

Part 5Crimes (Sentence Administration) Act 2005

  1. Board may reject parole application without inquiry
    Section 122 (2), new example

    before the examples, insert

    Example of when board might be satisfied application is frivolous, vexatious or misconceived

    The board previously rejected an application because the offender’s proposed accommodation after release was unsuitable. The offender’s later application proposes the same unsuitable accommodation without including new information or new reasons.

Part 6Crimes (Sentencing) Act 2005

  1. Victim impact statements—form and contents
    New section 51 (5A)

    insert

    (5A)The statement may contain photographs, drawings or other images.

  2. Meaning of supervision condition
    Section 133U (2), definition of director-general, paragraph (b)

    substitute

    (b)in any other case—the director-general responsible, under the Crimes (Sentence Administration) Act 2005, for the administration of the good behaviour order to which the direction relates.

  3. Meaning of accommodation order
    Section 133Y (2), definition of director-general, paragraph (b)

    substitute

    (b)in any other case—the director-general responsible, under the Crimes (Sentence Administration) Act 2005, for the young offender to whom the direction relates.

Part 7Crimes (Surveillance Devices) Act 2010

  1. What must a retrieval warrant contain?
    New section 22 (4)

    insert

    (4)Unless sooner executed or revoked, a retrieval warrant remains in force for the period stated in the warrant.

Part 8Criminal Code 2002

  1. False statement by officer of body
    Section 351 (1) (a)

    omit

    particular; or

    substitute

    particular; and

  2. New part 6.4A

    insert

Part 6.4ADisplay of drug pipes

621ADisplay of drug pipes

(1)An occupier of a retail or wholesale outlet commits an offence if the occupier displays to customers at the outlet a drug pipe within, or adjacent to, the outlet.

Maximum penalty:  50 penalty units.

(2)In this section:

drug pipe—

(a)means—

(i)a device, or components that together make a device, for the purpose or apparent purpose of smoking, or drawing or inhaling smoke or fumes from, a controlled drug; or

(ii)a device that is intended to be used for the purpose or apparent purpose of smoking, or drawing or inhaling smoke or fumes from, a controlled drug, but that requires an adjustment or modification to be used for that purpose; and

(b)includes a device commonly known as—

(i)a hash pipe; or

(ii)an ice pipe; or

(iii)a bong.

occupier, of retail or wholesale outlet, means a person having the management or control, or otherwise being in charge, of the outlet.

retail outlet means premises where goods are for sale by retail.

wholesale outlet means premises where goods are available for sale exclusively by wholesale.

Part 9Firearms Act 1996

  1. Authority to possess and use firearms temporarily
    New section 14 (2) (ba)

    insert

    (ba)the person is at least the age prescribed by regulation for section 85 (Minors firearms licences—applications); and

  2. Section 14 (2) (c) (ii)

    omit

    a registered user of the firearm

    substitute

    authorised under subsection (2A) to possess or use the firearm

  3. New section 14 (2A)

    insert

    (2A)A person is authorised to possess or use a firearm if—

    (a)the person is an authorised instructor for an approved club; and

    (b)the firearm is owned by the approved club; and

    (c)the person has possession or use of the firearm for the purpose of giving instruction.

  4. Unregulated firearms—forfeiture
    Section 30 (2)

    omit

    director-general

    substitute

    registrar

  5. Authority conferred by licence—additional matters
    New section 53 (2A) and (2B)

    insert

    (2A)A licence that authorises the licensee to have possession or use of a registered firearm also authorises the licensee to use the registered firearm at an approved shooting range for 1 or more of the following purposes:

    (a)to test the firearm;

    (b)to adjust the sights on the firearm;

    (c)to develop and refine self-loaded ammunition;

    (d)to receive instruction and certification in the use of the firearm for an employment-related purpose.

    Example—employment-related purpose

    a person with an employee licence under the Security Industry Act 2003 wanting to maintain that licence

    NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

    (2B)For subsection (2A), a licensee need not be a member of the shooting club that operates the approved shooting range.

  6. Return or forfeiture of things seized
    Section 217 (4)

    omit

    director-general

    substitute

    registrar

Part 10Prohibited Weapons Act 1996

  1. Evidentiary provisions
    New section 17 (2)

    insert

    (2)The registrar may delegate the registrar’s functions under subsection (1) to a police officer.

    Note 1For the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.

    Note 2In particular, the delegation must be in writing (see Legislation Act, s 232).

    Note 3A certificate signed by a delegate of the registrar is taken to have been signed by the registrar (see Legislation Act, s 239 (4)).


Endnotes

  1. Presentation speech

    Presentation speech made in the Legislative Assembly on 27 November 2014.

  2. Notification

    Notified under the Legislation Act on 2 March 2015.

  3. Republications of amended laws

    For the latest republication of amended laws, see certify that the above is a true copy of the Crimes Legislation Amendment Bill 2015, which originated in the Legislative Assembly as the Crimes Legislation Amendment Bill 2014 and was passed by the Assembly on 17 February 2015.

    Clerk of the Legislative Assembly

    © Australian Capital Territory 2015

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