Justice Legislation Amendment (Victims) Act 2018 (Vic)
Justice Legislation Amendment (Victims) Act 2018
No. 5 of 2018
TABLE OF PROVISIONS
Section Page
Part 1—Preliminary
1Purposes
2Commencement
Part 2—Sexual offences and forensic information
Division 1—Amendment of Crimes Act 1958
3Definitions
4Effect of intoxication on reasonable belief
5Defence—accused not more than 2 years older than 16 or 17 year old child and acts with child's consent
6Failure to disclose sexual offence committed against child under the age of 16 years
7Section 425 repealed
8Records of juvenile
9Forensic information from juveniles
10New section 633 inserted
Division 2—Amendment of Criminal Procedure Act 2009
11Definitions
12Section 4 substituted
13Application of Division 5 of Part 8.2
14Application of Division 7A of Part 8.2
15Audiovisual link evidence from overseas in certain proceedings
16New section 450 inserted
17Schedule 1 amended
Division 3—Amendment of other Acts
18Judicial Proceedings Reports Act 1958
19Jury Directions Act 2015
20Summary Offences Act 1966
21Victims' Charter Act 2006
22Victims of Crime Assistance Act 1996
Part 3—Amendment of Children, Youth and Families Act 2005
23Restriction on publication of proceedings
24New section 534A inserted
Part 4—Amendment of Criminal Procedure Act 2009
Division 1—New Part 8.2A inserted
25New Part 8.2A inserted
Division 2—Consequential and statute law revision amendments
26Definitions
27Special rules applicable to sexual offences
28When accused is not legally represented
29Application of this Division
30Regulations
31New section 451 inserted
Part 5—Amendment of Sentencing Act 1991
32Sentencing guidelines
33New section 5AA inserted
34New section 164 inserted
35Schedule 1 amended
Part 6—Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009
36Schedule 1 amended
Part 7—Amendment of Victims of Crime Assistance Act 1996
37Time for making application
38New section 82 inserted
Part 8—Amendment of Family Violence Protection Act 2008
39Information sharing entity authorised to share confidential information despite specified provisions
40Procedural requirements for person directed to a police station, or person apprehended and detained
41Schedule 1 amended
Part 9—Statute law revision
42Crimes Act 1958
43Jury Directions Act 2015
Part 10—Repeal of amending Act
44Repeal of amending Act
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Endnotes
1 General information
Justice Legislation Amendment (Victims) Act 2018
No. 5 of 2018
[Assented to 27 February 2018]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The purposes of this Act are—
(a)to amend the Crimes Act 1958—
(i)in relation to sexual offences; and
(ii)in relation to the destruction of fingerprints, DNA samples and related forensic material and information; and
(iii)to make other minor and technical changes; and
(b)to amend the Sentencing Act 1991—
(i)in relation to the presence of certain mitigating factors in the sentencing of an offender in respect of a child sexual offence; and
(ii)to provide for a further historical sexual offence to which Part 2A applies in the sentencing of a serious sexual offender; and
(c)to amend the Criminal Procedure Act 2009—
(i)in relation to sexual offences; and
(ii)to provide for ground rules hearings in relation to the questioning of certain witnesses; and
(iii)to provide for intermediaries for certain witnesses; and
(d)to amend the Victims of Crime Assistance Act 1996 to provide that an application may be made at any time in respect of an act of violence against a person under 18 years that consists of physical abuse or sexual abuse; and
(e)to amend various other Acts to update and modify references to various sexual offences; and
(f)to make other minor and consequential amendments to various other Acts.
2Commencement
(1)This Act (other than sections 32 and 33 and Parts 6, 7 and 8) comes into operation on the day after the day on which this Act receives the Royal Assent.
(2)Subject to subsection (3), sections 32 and 33 and Parts 6, 7 and 8 come into operation on a day or days to be proclaimed.
(3)If a provision referred to in subsection (2) does not come into operation before 1 July 2018, it comes into operation on that day.
Part 2—Sexual offences and forensic information
Division 1—Amendment of Crimes Act 1958
3Definitions
(1)In section 35(1) of the Crimes Act 1958, for the definition of vagina substitute—
"vagina includes the external genitalia;".
(2)After section 35(2) of the Crimes Act 1958 insert—
"(3)For the purposes of Subdivisions (8A) to (8FA), a reference to a part of the body includes a reference to a surgically altered or constructed part of the body.".
4Effect of intoxication on reasonable belief
(1)In section 36B(2) of the Crimes Act 1958—
(a)after paragraph (c) insert—
"(ca)from the use of a medicinal cannabis product in accordance with a patient medicinal cannabis access authorisation; or";
(b)in paragraph (d), after "not required" insert "(other than a medicinal cannabis product)".
(2)In section 36B(3) of the Crimes Act 1958, for "(2)(c) or (d)" substitute "(2)(c), (ca) or (d)".
5Defence—accused not more than 2 years older than 16 or 17 year old child and acts with child's consent
In section 51P(1)(d) of the Crimes Act 1958, for "did" substitute "does".
6Failure to disclose sexual offence committed against child under the age of 16 years
In section 327(1) of the Crimes Act 1958, for the definition of sexual offence substitute—
"sexual offence means—
(a)an offence committed under Subdivision (8A), (8B), (8C), (8E), (8F) or (8FA) of Division 1 of Part I on or after 1 July 2017; or
(b)an offence committed under Subdivision (8D) of Division 1 of Part I on or after 1 July 2017 other than an offence that only relates to child abuse material of a kind described in paragraph (a)(i)(A) of the definition of child abuse material in section 51A(1), where the torture, cruelty or abuse is not sexual; or
Example
An offence committed under Subdivision (8D) of Division 1 of Part I that relates to child abuse material that depicts or describes a child as a victim of sexual abuse.
(c)an offence committed before 1 July 2017 under Subdivision (8A), (8B), (8C), (8D), (8E) or (8EAA) as then in force; or
(d)an attempt to commit an offence referred to in paragraph (a), (b) or (c); or
(e)an assault with intent to commit an offence referred to in paragraph (a), (b) or (c).".
7Section 425 repealed
Section 425 of the Crimes Act 1958 is repealed.
8Records of juvenile
For section 464P(2) of the Crimes Act 1958 substitute—
"(2)Subsection (1) does not apply to fingerprints retained as a result of a finding of guilt of an offence if—
(a)the offence is—
(i)an offence against this Act; or
(ii)an offence at common law the maximum penalty for which is specified by this Act; and
(b)the offence is punishable by level 4 imprisonment (15 years maximum) or more (however the penalty is described).".
9Forensic information from juveniles
For section 464ZGA(2) of the Crimes Act 1958 substitute—
"(2)Subsection (1) does not apply if—
(a)the person from whom the sample was taken is found guilty of—
(i)the offence in relation to which the forensic procedure was conducted; or
(ii)an offence arising out of the same circumstances as the offence referred to in subparagraph (i); or
(iii)an offence in respect of which evidence obtained as a result of the forensic procedure had probative value; and
(b)the offence of which the person is found guilty is—
(i)an offence against this Act; or
(ii)an offence at common law the maximum penalty for which is specified by this Act; and
(c)the offence of which the person is found guilty is punishable by level 4 imprisonment (15 years maximum) or more (however the penalty is described); and
(d)the sample—
(i)was taken in accordance with an order under section 464ZF(2); or
(ii)is the subject of an order under section 464ZFB(1).".
10New section 633 inserted
At the end of Part 7 of the Crimes Act 1958 insert—
"633 Transitional provision—Justice Legislation Amendment (Victims) Act 2018
(1)Despite the amendment made to section 464ZGA by section 9 of the Justice Legislation Amendment (Victims) Act 2018, section 464ZGA as in force immediately before the commencement day continues to apply to—
(a)a sample that was taken in accordance with an order under section 464ZF(2) that was made before the commencement day; or
(b)a sample in respect of which an order under section 464ZFB(1) was made before the commencement day.
(2)Section 464ZGA, as amended by section 9 of the Justice Legislation Amendment (Victims) Act 2018, applies in relation to a sample—
(a)taken in accordance with an order under section 464ZF(2) that was made on or after the commencement day; or
(b)that is the subject of an order under section 464ZFB(1) that was made on or after the commencement day.
(3)In this section—
commencement day means the day on which section 9 of the Justice Legislation Amendment (Victims) Act 2018 comes into operation.".
Division 2—Amendment of Criminal Procedure Act 2009
11Definitions
(1)In section 3 of the Criminal Procedure Act 2009 insert the following definition—
"child means a person under the age of 18 years;".
(2)In section 3 of the Criminal Procedure Act 2009, for the definition of sexual offence substitute—
"sexual offence has the meaning given by section 4;".
12Section 4 substituted
For section 4 of the Criminal Procedure Act 2009 substitute—
"4 Meaning of sexual offence
(1)In this Act, sexual offence means any of the following offences (other than an offence excluded by subsection (2))—
(a)an offence against—
(i)a provision of Subdivision (8A), (8B), (8C), (8D), (8E), (8F) or (8FA) of Division 1 of Part I of the Crimes Act 1958; or
(ii)section 327(2) (failure to disclose a sexual offence committed against a child under the age of 16 years) of the Crimes Act 1958; or
(iii)section 5(1), 6(1), 7(1), 8(1), 9(1) or 11(1) of the Sex Work Act 1994;
(b)an offence an element of which involves—
(i)any person engaging in sexual activity; or
(ii)any person taking part in a sexual act; or
(iii)commercial sexual services; or
(iv)a sexual performance involving a child;
(c)an offence an element of which involves—
(i)an intention that any of the conduct referred to in paragraph (b) is to occur; or
(ii)soliciting, procuring, enabling or threatening any of the conduct referred to in paragraph (b); or
(iii)inducing or knowingly allowing a child to enter or remain on premises so that any of the conduct referred to in paragraph (b) may occur;
(d)an offence an element of which involves child abuse material;
(e)an offence an element of which involves indecency;
(f)an offence of attempting to commit, or of incitement or conspiracy to commit, an offence referred to in paragraph (a), (b), (c), (d) or (e);
(g)an offence against section 49C(2) (failure by person in authority to protect child from sexual offence) of the Crimes Act 1958 as in force before the commencement of section 16 of the Crimes Amendment (Sexual Offences) Act 2016.
(2)An offence against a provision of the Sex Work Act 1994 that is not referred to in subsection (1)(a)(iii) is not a sexual offence.
(3)In determining whether an offence at common law is a sexual offence, it does not matter that the offence has since been abolished.
(4)In determining whether an offence against an enactment is a sexual offence, it does not matter that the enactment has since been repealed.
(5)In determining whether an offence is a sexual offence, it does not matter that the offence is described in this section—
(a)differently from how it is described in the enactment or common law that establishes the offence; or
(b)by reference to an enactment that was not in operation on the date on which the offence is alleged to have been committed.
Example
Subdivision (13) of Division 1 of Part I of the Crimes Act 1958 previously included offences involving child pornography. That Subdivision has been repealed and replaced by new offences that refer to child abuse material rather than child pornography. Child pornography was defined to include material of a certain kind, and child abuse material is now defined as also including material of that kind. An offence against a provision of repealed Subdivision (13) is therefore a sexual offence under subsection (1)(d).
(6)In this section—
commercial sexual services has the meaning given by section 53A of the Crimes Act 1958;
sexual, in relation to an activity, has the meaning given by section 35D of the Crimes Act 1958;
sexual performance has the meaning given by section 49Q(3) of the Crimes Act 1958;
taking part in a sexual act has the meaning given by section 35C of the Crimes Act 1958.".
13Application of Division 5 of Part 8.2
In section 366(1)(b) of the Criminal Procedure Act 2009, for "person." substitute "person; or".
14Application of Division 7A of Part 8.2
For section 387A(1) of the Criminal Procedure Act 2009 substitute—
"(1)This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for—
(a)an offence against any of the following provisions of the Crimes Act 1958—
(i)section 38 (rape);
(ii)section 39 (rape by compelling sexual penetration);
(iii)section 49A (sexual penetration of a child under the age of 12);
(iv)section 49B (sexual penetration of a child under the age of 16);
(v)section 49C (sexual penetration of a child aged 16 or 17 under care, supervision or authority);
(vi)section 49D (sexual assault of a child under the age of 16);
(vii)section 49E (sexual assault of a child aged 16 or 17 under care, supervision or authority);
(viii)section 49F (sexual activity in the presence of a child under the age of 16);
(ix)section 49G (sexual activity in the presence of a child aged 16 or 17 under care, supervision or authority);
(x)section 49H (causing a child under the age of 16 to be present during sexual activity);
(xi)section 49I (causing a child aged 16 or 17 under care, supervision or authority to be present during sexual activity);
(xii)section 49J (persistent sexual abuse of a child under the age of 16);
(xiii)section 50C (sexual penetration of a child or lineal descendant);
(xiv)section 50D (sexual penetration of a step-child);
(xv)section 50E (sexual penetration of a parent, lineal ancestor or step‑parent);
(xvi)section 50F (sexual penetration of a sibling or half-sibling); or
(b)an offence of attempting to commit, or of incitement or conspiracy to commit, an offence referred to in paragraph (a).".
15Audiovisual link evidence from overseas in certain proceedings
(1)For section 389(1) of the Criminal Procedure Act 2009 substitute—
"(1)This section applies to a criminal proceeding that relates (wholly or partly) to a charge for an offence against—
(a)section 49S(1) of the Crimes Act 1958; or
(b)section 49A(1) of the Crimes
Act 1958 as in force before the commencement of section 16 of the Crimes Amendment (Sexual Offences) Act 2016.".
(2)In section 389(8) of the Criminal Procedure Act 2009, for "an offence against section 49A(1) of the Crimes Act 1958" substitute "an offence referred to in subsection (1)".
16New section 450 inserted
At the end of Chapter 10 of the Criminal Procedure Act 2009 insert—
"
450 Transitional provision—Justice Legislation Amendment (Victims)
Act 2018—section 387A
Section 387A(1) as in force immediately before the commencement of section 14 of the Justice Legislation Amendment (Victims) Act 2018 continues to apply to a criminal proceeding as if section 387A(1) had not been amended if—
(a)the criminal proceeding is commenced after the commencement of section 14 of that Act; and
(b)the proceeding relates (wholly or partly) to a charge for an offence against a provision referred to in section 387A(1) before that commencement.".
17Schedule 1 amended
In Schedule 1 to the Criminal Procedure Act 2009, for the note at the foot of clause 4A(1) substitute—
"Note
Sexual offence is defined in section 4.".
Division 3—Amendment of other Acts
18Judicial Proceedings Reports Act 1958
In section 4(1) of the Judicial Proceedings Reports Act 1958, in the definition of sexual offence, after "(8C)," insert "(8D),".
19Jury Directions Act 2015
In the note at the foot of section 46(2) of the Jury Directions Act 2015, for "section 36" substitute "Section 36".
20Summary Offences Act 1966
After section 19(6) of the Summary Offences Act 1966 insert—
"(7)In this section, a reference to genitals includes a reference to surgically altered or constructed genitals.".
21Victims' Charter Act 2006
In section 3(1) of the Victims' Charter Act 2006, in the definition of victim, in paragraph (d)—
(a)for "section 49B" substitute "section 49M";
(b)after "sexual conduct with" insert "a";
(c)omit "years".
22Victims of Crime Assistance Act 1996
In section 3(1) of the Victims of Crime Assistance Act 1996, in the definition of relevant offence, in paragraph (b), for "(8E) or (8FA)" substitute "(8D), (8E), (8F) or (8FA)".
Part 3—Amendment of Children, Youth and Families Act 2005
23Restriction on publication of proceedings
(1)In section 534(4) of the Children, Youth and Families Act 2005, after "(3B)" insert "or section 534A(2)".
(2)At the foot of section 534 of the Children, Youthand Families Act 2005 insert—
"Note
See section 534A for a further exception to section 534(1).".
24New section 534A inserted
After section 534 of the Children, Youth and Families Act 2005 insert—
"534A Certain publications exempted from the restriction on publication of proceedings
(1)Subject to subsection (2), section 534(1) does not apply to the publication of—
(a)a report of a proceeding in the Criminal Division of the Court, or of a proceeding in any other court arising out of a proceeding in that Division, that contains particulars likely to lead to the identification of a witness in the proceeding, if the witness—
(i)is a victim or alleged victim; and
(ii)is of or above the age of 18 years at the time of publication; or
(b)a picture as being or including a picture of a witness referred to in paragraph (a).
(2)Subsection (1) does not apply if the publication would be likely to lead to the identification of—
(a)the particular venue of the Children's Court, other than the Koori Court (Criminal Division) or the Neighbourhood Justice Division, in which the proceeding was heard; or
(b)a child or other party to the proceeding; or
(c)a witness in the proceeding, other than a witness referred to in subsection (1)(a).
(3)For the purposes of this section, alleged victim means a person who would be a victim in relation to an offence if the offence were proven.".
Part 4—Amendment of Criminal Procedure Act 2009
Division 1—New Part 8.2A inserted
25New Part 8.2A inserted
After Part 8.2 of the Criminal Procedure Act 2009 insert—
"Part 8.2A—Ground rules hearings and intermediaries
Division 1—Ground rules hearings
389AApplication of Division
(1)This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for—
(a)a sexual offence; or
(b)an offence if the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008; or
(c)an indictable offence which involves an assault on, or injury or a threat of injury to, a person; or
(d)any offences against section 23 or 24 of the Summary Offences Act 1966 if the offences are related offences to an offence specified in paragraph (a) or (c), despite whether any such related offences are withdrawn or dismissed before an offence against section 23 or 24 of the Summary Offences Act 1966 is heard and determined.
(2)This Division applies at any stage of the criminal proceeding, including an appeal or rehearing.
(3)This Division applies to a witness (including a complainant) other than the accused in a criminal proceeding referred to in subsection (1) if the witness is—
(a)a person under the age of 18 years; or
(b)a person with a cognitive impairment.
(4)In this Division, witness means a witness referred to in subsection (3).
389BGround rules hearing to be held
(1)The court may direct that a ground rules hearing under this Division is to be held.
Note
Section 337(1) enables this direction to be made by the court on the application of a party or on its own motion.
(2)An application for the court to direct that a ground rules hearing is to be held may be made orally or in writing.
(3)A ground rules hearing must be held if an intermediary is appointed under Division 2.
389CTime limits for ground rules hearing
(1)If a ground rules hearing is to be held, it must be held before the commencement of any hearing at which a witness is to give evidence.
(2)The court may extend the time for holding a ground rules hearing if the court considers that it is in the interests of justice to do so.
(3)The court may extend time under subsection (2) before or after the time expires.
(4)More than one extension of time may be granted under subsection (2).
389DAttendance for ground rules hearings
(1)The following persons must attend a ground rules hearing—
(a)a person acting for the prosecution;
(b)the legal practitioner representing the accused or, if the accused is unrepresented, the accused;
(c)the intermediary appointed for a witness, if any.
(2)A witness is not required to attend a ground rules hearing.
(3)The court may make an order that a witness for whom an intermediary is appointed not attend a ground rules hearing.
389EDirections which may be given at ground rules hearings
(1)At a ground rules hearing, the court may make or vary any direction for the fair and efficient conduct of the proceeding.
(2)Without limiting subsection (1), the court may give one or more of the following directions—
(a)a direction about the manner of questioning a witness;
(b)a direction about the duration of questioning a witness;
(c)a direction about the questions that may or may not be put to a witness;
(d)if there is more than one accused, a direction about the allocation among the accused of the topics about which a witness may be asked;
(e)a direction about the use of models, plans, body maps or similar aids to help communicate a question or an answer;
(f)a direction that if a party intends to lead evidence that contradicts or challenges the evidence of a witness or that otherwise discredits a witness, the party is not obliged to put that evidence in its entirety to the witness in cross-examination.
Note
A direction referred to in paragraph (f) may exclude all or part of the operation of the rule attributed to Browne v Dunn (1893) 6 R 67 followed and applied in criminal proceedings in Victoria in R v McDowell [1997] 1 VR 473 (CA), R v MG (2006) 175 A Crim R 342,
R v SWC(2007) 175 A Crim R 71 and R v Ferguson (2009) VR 531 in the circumstances in which, and in relation to witnesses to which, this Division applies.
Division 2—Intermediaries
389FApplication of Division
(1)This Division applies to a witness (other than the accused) in a criminal proceeding if—
(a)at the time at which the proceeding commences, the witness—
(i)is under the age of 18 years; or
(ii)has a cognitive impairment; and
(b)the criminal proceeding is in a participating venue of a court.
(2)This Division applies at any stage of the criminal proceeding, including an appeal or rehearing.
(3)In this Division (other than in section 389J(4)(c)), witness means a witness referred to in subsection (1).
389GParticipating venues of courts
The Minister may, by notice published in the Government Gazette, declare a venue of a court to be a participating venue for the purposes of this Division.
389HPanel of intermediaries
(1)The Secretary to the Department of Justice and Regulation must establish a panel of persons who the Secretary is satisfied are suitable persons to be appointed as intermediaries.
(2)A person must not be on the panel unless the person—
(a)has a tertiary qualification in psychology, social work, speech pathology or occupational therapy; or
(b)has other prescribed qualifications, training, experience or skills.
(3)The Secretary to the Department of Justice and Regulation must remove a person from the panel if the Secretary is no longer satisfied that the person is a suitable person to be appointed as an intermediary.
389IFunction of intermediaries
(1)The function of an intermediary is—
(a)to communicate or explain to a witness for whom an intermediary is appointed, questions put to the witness to the extent necessary to enable them to be understood by the witness; and
(b)to communicate or explain to a person asking questions of a witness for whom an intermediary is appointed, the answers given by the witness in reply to the extent necessary to enable them to be understood by the person.
(2)An intermediary is an officer of the court and has a duty to act impartially when assisting communication with the witness.
389JAppointment of intermediaries
(1)A court may appoint an intermediary for a witness from the panel established under this Division.
Notes
1 Section 337(1) enables this appointment to be made by the court on the application of a party or on its own motion.
2 Section 337(2) provides that this appointment may be varied or revoked.
(2)An application for a court to appoint an intermediary may be made orally or in writing.
(3)A court must not appoint an intermediary for a witness if the court is satisfied that the witness—
(a)is aware of the right of the witness to make an application for an intermediary to be appointed; and
(b)is able and wishes to give evidence in the criminal proceeding without the assistance of an intermediary.
(4)A court must not appoint a person as an intermediary for a witness if the person—
(a)is a relative, friend or acquaintance of the witness or the accused; or
(b)has assisted the witness (other than as an intermediary) or the accused in a professional capacity; or
(c)is a party or potential witness (other than by reason of the person's role as an intermediary) in the relevant proceeding.
389KWitness to give evidence in presence of intermediary
(1)In a proceeding in which an intermediary has been appointed, the evidence of the witness must be given in the presence of the intermediary.
(2)Subject to any direction of the court and rules of court, the evidence of the witness given in the presence of the intermediary must be given in circumstances in which—
(a)the court and any legal practitioner appearing in the proceeding are able to see and hear the witness giving evidence and to communicate with the intermediary; and
(b)the jury (if any) is able to see and hear the witness giving evidence (including any assistance given by the intermediary), other than evidence given in accordance with an arrangement made under section 360(a) as directed by the
court.
(3)The provisions of Division 2 (other than section 22(2)) of Part 2.1 of the Evidence Act 2008 which apply to interpreters are taken to apply to an intermediary.
Note
Section 22(2) of the Evidence Act 2008 requires interpreters to take an oath or make an affirmation in accordance with a form in Schedule 1 to that Act or a similar form.
(4)A person must not act as an intermediary in a particular proceeding unless the person has taken an oath or made an affirmation in the prescribed form.".
Division 2—Consequential and statute law revision amendments
26Definitions
In section 3 of the Criminal Procedure Act 2009 insert the following definitions—
"ground rules hearing means a hearing conducted in accordance with Division 1 of Part 8.2A;
intermediary means a person appointed under section 389J;".
27Special rules applicable to sexual offences
After section 133(3)(c) of the Criminal Procedure Act 2009 insert—
"(ca)a person who is appointed as an intermediary for the complainant;".
28When accused is not legally represented
In section 357(5) of the Criminal Procedure Act2009, for "If" substitute "Subject to any direction given under section 389E(f), if".
29Application of this Division
In section 366(1)(d) of the Criminal Procedure Act 2009, for "paragraph (a), (b) or (c)" substitute "paragraph (a), (ab) or (b)".
30Regulations
In section 420(1) of the Criminal Procedure Act 2009—
(a)in paragraph (c)—
(i)after "witnesses" insert ", intermediaries";
(ii)in subparagraph (ii), after "Magistrates' Court" insert "and Children's Court";
(b)for paragraph (ea) substitute—
"(ea)the making, use (including for training and evaluation purposes), possession, copying, storage, access to and destruction of an audio or audiovisual recording referred to in Chapter 4 or 5 or Part 8.2 or made in a proceeding in which an intermediary is appointed under Part 8.2A or any copy or transcript of such an audio or audiovisual recording.".
31New section 451 inserted
At the end of Chapter 10 of the Criminal Procedure Act 2009 insert—
"451 Transitional provision—Justice Legislation Amendment (Victims) Act 2018—Part 8.2A
Part 8.2A as inserted by section 25 of the Justice Legislation Amendment (Victims) Act 2018 applies to a criminal proceeding commenced, or in which the accused is committed for trial, on or after the day on which that section comes into operation, irrespective of when the offence is alleged to have been committed.".
Part 5—Amendment of Sentencing Act 1991
32Sentencing guidelines
At the foot of section 5(2) of the Sentencing Act 1991 insert—
"Note
See section 5AA in relation to the court having regard to previous good character or lack of previous findings of guilt or convictions in certain circumstances.".
33New section 5AA inserted
After section 5 of the Sentencing Act 1991 insert—
"5AA Court not to have regard to previous good character or lack of previous findings of guilt or convictions in certain circumstances
(1)Despite section 5(2), in sentencing an offender for a child sexual offence, a court must not have regard to the offender's previous good character or lack of previous findings of guilt or convictions if the court is satisfied the offender's previous good character or lack of previous findings of guilt or convictions was of assistance to the offender in the commission of the offence.
(2)Subsection (1) does not apply to an offender who is under the age of 18 years at the time of the commission of the offence.
(3)In this section—
child sexual offence means a sexual offence within the meaning of section 3 of the Criminal Procedure Act 2009, committed in relation to a person under the age of 18 years.".
34New section 164 inserted
At the end of Part 12 of the Sentencing Act 1991 insert—
"164 Transitional—Justice Legislation Amendment (Victims) Act 2018
(1)The amendments made to this Act by sections 32 and 33 of the Justice Legislation Amendment (Victims)Act 2018 apply to the sentencing of an offender on or after the commencement of those sections, irrespective of when the offence was committed.
(2)The amendment made to this Act by section 35 of the Justice Legislation Amendment (Victims) Act 2018 applies to a sentence imposed after the commencement of that section, irrespective of when the offence was committed.
(3)For the purpose of this section, a sentence imposed by an appellate court on setting aside a sentencing order must be taken to have been imposed at the time the original sentencing order was made.".
35Schedule 1 amended
After clause 1(c) of Schedule 1 to the Sentencing Act 1991 insert—
"(ca)an offence, committed on or after 1 April 1959 and before 8 November 1967, against section 68(3) of the Crimes Act 1958 as then in force, consisting of an indecent assault upon a male person;".
Part 6—Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009
36Schedule 1 amended
In item 35 of Schedule 1 to the Serious Sex Offenders (Detention and Supervision) Act 2009, for "(c)," substitute "(c), (ca),".
Part 7—Amendment of Victims of Crime Assistance Act 1996
37Time for making application
(1)After section 29(1) of the Victims of Crime Assistance Act 1996 insert—
"(1A)Despite subsection (1), an application may be made by a victim at any time after the occurrence of an act of violence consisting of physical abuse or sexual abuse if the act occurred when the victim was under the age of 18 years.".
(2)After section 29(4) of the Victims of Crime Assistance Act 1996 insert—
"(5)In this section—
sexual abuse means—
(a)taking part in a sexual act within the meaning of section 35C of the Crimes Act 1958; or
(b)an activity that is sexual within the meaning of section 35D of that Act.".
38New section 82 inserted
After section 81 of the Victims of Crime Assistance Act 1996 insert—
"82 Transitional provision—Justice Legislation Amendment (Victims) Act 2018
Section 29 as in force on or after the commencement of section 37 of the Justice Legislation Amendment (Victims) Act 2018 applies to an application that is in existence but not decided immediately before that commencement.".
Part 8—Amendment of Family Violence Protection Act 2008
39Information sharing entity authorised to share confidential information despite specified provisions
(1)In the heading to section 144QC of the Family Violence Protection Act 2008, after "sharing entity" insert "or Central Information Point".
(2)In section 144QC of the Family Violence Protection Act 2008, after "sharing entity" insert "or the Central Information Point".
40Procedural requirements for person directed to a police station, or person apprehended and detained
In section 17(7) of the Family Violence Protection Act 2008, after "property of the affected family member" insert "or of the protected person".
41Schedule 1 amended
For item 8 of Schedule 1 to the Family Violence Protection Act 2008 substitute—
"8Section 178 of the Fines Reform Act 2014".
Part 9—Statute law revision
42Crimes Act 1958
In the heading to section 629 of the Crimes Act 1958 (where first occurring), for "629" substitute "628A".
43Jury Directions Act 2015
In the note at the foot of section 46(2) to the Jury Directions Act 2015, for "section 36" substitute "Section 36".
Part 10—Repeal of amending Act
44Repeal of amending Act
This Act is repealed on 1 July 2019.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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Endnotes
1 General information
See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 13 December 2017
Legislative Council: 8 February 2018
The long title for the Bill for this Act was "A Bill for an Act to amend the Children, Youth and Families Act 2005, the Crimes Act 1958, the Criminal Procedure Act 2009, the Family Violence Protection Act 2008, the Judicial Proceedings Reports Act 1958, the Jury Directions Act 2015, the Sentencing Act 1991, the Serious Sex Offenders (Detention and Supervision) Act 2009, the Summary Offences Act 1966, the Victims' Charter Act 2006 and the Victims of Crime Assistance Act 1996 and for other purposes."
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