Untitled document
Justice Legislation (Further Miscellaneous Amendments) Act 2006
Act No. 27/2006
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY
1.Purpose
2.Commencement
PART 2—AMENDMENT OF CRIMES ACT 1958
3.Definitions
4.New section 464AA inserted
464AA.Digital recordings
5.Caution before forensic procedure
6.Execution of order
7.Forensic reports
8.Evidence relating to forensic procedures
9.New section 464ZFAAA inserted
464ZFAAA.Forensic procedure following finding of not guilty because of mental impairment
10.Warrants
11.Retention of information following finding of not guilty because of mental impairment
12.Destruction of information following finding of not guilty because of mental impairment
13.Computerised databases
14.Destruction of identifying information
15.DNA database system
16.Forensic sample offences
17.Consequential amendments—tape-recording
18.New section 605 inserted
605.Transitional provision—Justice Legislation (Further Miscellaneous Amendments) Act 2006
PART 3—AMENDMENT OF OTHER ACTS
19.Amendment of Crimes (Sexual Offences) Act 2006
20.Amendment of Major Crime Legislation (Office of Police Integrity) Act 2004
21.Amendment of Surveillance Devices (Amendment) Act 2004
22.New proposed section inserted in Surveillance Devices (Amendment) Act 2004
30R.Commonwealth Ombudsman's reports on investigations
23.Amendment of the Working with Children Act 2005
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ENDNOTES
Justice Legislation (Further Miscellaneous Amendments) Act 2006
[Assented to 6 June 2006]
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1.Purpose
The purpose of this Act is to make miscellaneous amendments to the Crimes Act 1958, the Crimes (Sexual Offences) Act 2006, the Major Crime Legislation (Office of Police Integrity) Act 2004, the Surveillance Devices (Amendment) Act 2004 and the Working with Children Act 2005.
2.Commencement
This Act comes into operation on 30 June 2006.
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PART 2—AMENDMENT OF CRIMES ACT 1958
3.Definitions
In section 464(2) of the Crimes Act 1958—
(a)in paragraph (a) of the definition of "related material and information", after "464ZF" insert "or 464ZFAAA";
(b)in the definition of "suspects index", after "jurisdiction" insert "or taken from persons found not guilty because of mental impairment in accordance with section 464ZFAAA";
(c)the definition of "tape-recording" is repealed.
4.New section 464AA inserted
After section 464 of the Crimes Act 1958 insert—
"464AA.Digital recordings
If this Subdivision requires an audio recording or an audiovisual recording to be made and the recording is made in a digitised format, the maker of the recording must certify that the recording has not been altered after its making and that the prescribed requirements, if any, in relation to the method of recording have been met.".
5.Caution before forensic procedure
In section 464Y(1) of the Crimes Act 1958, after "section 464ZF" insert "or 464ZFAAA".
6.Execution of order
In section 464ZA of the Crimes Act 1958—
(a)in sub-section (1)(c), after "section 464ZF" insert "or 464ZFAAA";
(b)in sub-section (6), for "or 464ZF" substitute ", 464ZF or 464ZFAAA".
7.Forensic reports
In section 464ZD of the Crimes Act 1958—
(a)for "or 464ZF(2) or (3)" substitute
", 464ZF(2) or (3) or 464ZFAAA(2)";
(b)after "section 464ZF" insert
"or 464ZFAAA".
8.Evidence relating to forensic procedures
In section 464ZE(1)(d) of the Crimes Act 1958, after "section" insert "464ZF, 464ZFAAA,".
9.New section 464ZFAAA inserted
After section 464ZF of the Crimes Act 1958 insert—
'464ZFAAA.Forensic procedure following finding of not guilty because of mental impairment
(1)In this section—
"child" means a child aged 10 years or more but under 18 years;
"forensic sample offence" means any offence specified in Schedule 8 other than an offence tried summarily.
(2)If a court finds a person not guilty because of mental impairment of—
(a)a forensic sample offence; or
(b)an offence of conspiracy to commit, incitement to commit or attempting to commit a forensic sample offence—
a member of the police force, at any time following that finding but not later than 6 months after the final determination of an appeal or the expiration of any appeal period (whichever is the later), may apply to the court for an order directing the person to undergo a forensic procedure for the taking of a sample from any part of the body and the court may make an order accordingly.
(3)In an application under sub-section (2), the member of the police force must specify the type of sample (whether intimate or non-intimate) sought to be taken in the forensic procedure.
(4)Notice of an application under sub-section (2)—
(a)must be served on the person in respect of whom the order is sought and, if the person is a child, on a parent or guardian of the child; and
(b)must include a requirement that the person in respect of whom the order is sought attend the hearing of the application in person or by his or her legal practitioner.
(5)In determining whether to make an order under sub-section (2), a court—
(a)must take into account the seriousness of the circumstances of the forensic sample offence of which the person has been found not guilty because of mental impairment; and
(b)must be satisfied that, in all the circumstances, the making of the order is justified; and
(c)may make such inquiries on oath or otherwise as it considers desirable.
(6)An application made under sub-section (2) must be heard in the presence of the person in respect of whom the order is sought or his or her legal practitioner.
(7)A person in respect of whom an application under sub-section (2) is made—
(a)is not a party to the application; and
(b)may not call or cross-examine any witnesses; and
(c)may not address the court other than in response to inquiries made by the court under sub-section (5)(c).
(8)In exercising the right of address under sub-section (7)(c), a person may be represented by a legal practitioner.
(9)An order under sub-section (2) in respect of a person who is not a forensic patient or a forensic resident within the meaning of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 must include a direction that the person attend—
(a)at a place; and
(b)within a period (commencing after the expiry of the period referred to in sub-section (12) during which the order must not be executed)—
specified in the order to undergo the forensic procedure.
(10)If a court makes an order under sub-section (2), it must—
(a)give reasons for its decision and cause a copy of the order and reasons to be served on the person ordered to undergo the forensic procedure; and
(b)inform the person ordered to undergo the forensic procedure that a member of the police force may use reasonable force to enable the procedure to be conducted.
(11)A failure of a court to comply with sub-section (10) does not invalidate any order made by it but constitutes non-compliance for the purposes of section 464ZE(1)(a).
(12)An order made by a court under sub-section (2) before the appeal period in relation to the verdict of not guilty because of mental impairment has expired or an appeal against the verdict (if any) has been finally determined (whichever is the later), must not be executed unless—
(a)that appeal period expires; or
(b)the appeal against the verdict is dismissed—
whichever is the later.
(13)If leave to appeal against a verdict of not guilty because of mental impairment in respect of a forensic sample offence is sought after the expiry of the appeal period in relation to the verdict, an order made by a court under sub-section (2) before leave to appeal is sought, if not executed before that leave is sought, must not be executed unless—
(a)leave to appeal against the verdict is refused; or
(b)leave to appeal against the verdict is granted but the appeal is dismissed.
(14)If an order made by a court under sub-section (2) has been executed after the expiry of the appeal period in relation to the verdict of not guilty because of mental impairment in respect of a forensic sample offence and leave to appeal against the verdict is granted after the expiry of that period—
(a)any sample and any related material and information taken may be retained by a member of the police force but may not be used for any purpose pending the final determination of the appeal against the verdict; and
(b)if, on appeal, the verdict is set aside, the Chief Commissioner of Police must, without delay, destroy or cause to be destroyed any sample taken and any related material and information.
(15)If on appeal a verdict of not guilty because of mental impairment is set aside, an order made by a court under sub-section (2) ceases to have effect. '.
10.Warrants
(1)Insert the following heading to section 464ZFA of the Crimes Act 1958—
"Warrants issued for forensic procedures under section 464ZF or 464ZFAAA".
(2)For section 464ZFA(1) of the Crimes Act 1958 substitute—
"(1)If—
(a)before a court makes an order under section 464ZF(3) directing a person to undergo a forensic procedure, that person has been released from the prison, police gaol, youth training centre or approved mental health service where he or she was serving a term of imprisonment or a period of detention at the time the application for the order was made; or
(b)a person fails to attend the hearing of an application under section 464ZFAAA(2) for an order directing the person to undergo a forensic procedure—
the court may issue a warrant authorising the person to whom it is directed, if necessary—
(c)to break, enter and search by day or by night any place where the person named in the warrant is suspected to be; and
(d)to arrest the person; and
(e)to bring the person before the court for the hearing of the application; and
(f)if that application is granted, to detain the person for as long as reasonably permits the conduct of the forensic procedure.".
(3)In section 464ZFA(1A) of the Crimes Act 1958—
(a)after "464ZF(2)" insert "or 464ZFAAA(2)";
(b)after "464ZF(2A)" insert "or 464ZFAAA(9), as the case may be,".
(4)In section 464ZFA(1B) of the Crimes Act 1958, after "464ZF(2A)" insert "or 464ZFAAA(9)".
11.Retention of information following finding of not guilty because of mental impairment
(1)Insert the following heading to section 464ZFB of the Crimes Act 1958—
"Retention of information following finding of guilt etc.".
(2)After section 464ZFB(1) of the Crimes Act 1958 insert—
"(1A)If—
(a)a forensic procedure is conducted on a person in accordance with section 464R, 464SA, 464T(3), 464U(7) or 464V(5); and
(b)a court finds the person not guilty because of mental impairment of—
(i)the offence in respect of which the forensic procedure was conducted; or
(ii)any other offence arising out of the same circumstances; or
(iii)any other offence in respect of which evidence obtained as a result of the forensic procedure had probative value—
a member of the police force, at any time after the verdict of not guilty because of mental impairment, but not later than 6 months after the final determination of an appeal against the verdict or the expiry of any appeal period in respect of the verdict (whichever is the later), may apply to the court referred to in paragraph (b) for an order permitting the retention of any sample taken and any related material and information and the court may make an order accordingly.
(1B)Sub-section (1A) does not apply to an offence tried summarily.".
(3)In section 464ZFB(2) of the Crimes Act 1958—
(a)after "sub-section (1)" (where first occurring) insert "or (1A)";
(b)after "sub-section (1)" (where secondly occurring) insert "or (1A), as the case requires".
(4)After section 464ZFB(2A) of the Crimes Act 1958 insert—
"(2B)An order made under sub-section (1A) before the expiry of the appeal period in respect of the verdict of not guilty because of mental impairment or the final determination of an appeal against the verdict (whichever is later)—
(a)takes effect on that expiry or final determination; and
(b)has no effect if, on appeal, the verdict of not guilty because of mental impairment is set aside.".
(5)In section 464ZFB(3) of the Crimes Act 1958, after "sub-section (1)" insert "or (1A)".
12.Destruction of information following finding of not guilty because of mental impairment
(1)Insert the following heading to section 464ZFC of the Crimes Act 1958—
"Destruction of information following finding of guilt etc.".
(2)In section 464ZFC(1)(a) of the Crimes Act 1958, for "464ZFB within the period specified by sub-section (1) of that section" substitute "464ZFB(1) or (1A) within the period specified by that sub-section".
13.Computerised databases
In section 464ZFD(1) of the Crimes Act 1958, after "section 464ZF" insert "or 464ZFAAA".
14.Destruction of identifying information
In section 464ZG(3)(b) of the Crimes Act 1958, after "not found guilty" insert "(except because of mental impairment)".
15.DNA database system
In section 464ZGG(1) of the Crimes Act 1958, in the definition of "excluded forensic material", after paragraph (c) insert—
"(ca)taken from a person under section 464ZFAAA following a finding of not guilty because of mental impairment; or".
16.Forensic sample offences
In Schedule 8 to the Crimes Act 1958, for "Section 464ZF" substitute "Sections 464ZF, 464ZFAAA".
17.Consequential amendments—tape-recording
(1)In section 464(2) of the Crimes Act 1958, in the definition of "related material and information", for "video-recording" (wherever occurring) substitute "audiovisual recording".
(2)In section 464B(5H) of the Crimes Act 1958, for "The following must be video-recorded" substitute "An audiovisual recording must be made of the following".
(3)Insert the following heading to section 464G of the Crimes Act 1958—
"Recording of information required to be given to person in custody".
(4)In section 464G(1) of the Crimes Act 1958, for "tape-record" substitute "record (by audio recording or audiovisual recording)".
(5)Insert the following heading to section 464H of the Crimes Act 1958—
"Recording of confessions and admissions".
(6)In section 464H(1) of the Crimes Act 1958—
(a)in paragraphs (c), (d) and (e), for "tape-recorded" (wherever occurring) substitute "recorded by audio recording or audiovisual recording";
(b)in paragraph (f), for "video-recorded" substitute "recorded by audiovisual recording";
(c)for "tape-recording or video-recording" substitute "recording (whether audio recording or audiovisual recording)".
(7)In section 464H(3) of the Crimes Act 1958—
(a)in paragraph (a), for "tape-recording or video-recording" substitute "recording (whether audio recording or audiovisual recording)";
(b)in paragraph (b), for "tape-recording or video-recording" substitute "recording".
(8)In section 464H(4) of the Crimes Act 1958, for "a tape-recording or video-recording" substitute "an audio recording or audiovisual recording".
(9)For section 464K(3)(a) of the Crimes Act 1958 substitute—
"(a)record (whether by audio recording or audiovisual recording); or".
(10)In section 464K(4) of the Crimes Act 1958, for "tape-recorded" substitute "recorded by audio recording or audiovisual recording".
(11)In section 464K(5) of the Crimes Act 1958—
(a)for "tape-recorded" substitute "recorded by audio recording or audiovisual recording";
(b)in paragraph (a), for "tape-recording" substitute "recording (whether audio recording or audiovisual recording)";
(c)in paragraph (b), for "tape-recording" substitute "recording".
(12)In section 464K(8)(b) of the Crimes Act 1958, for "video-recorded, if practicable, or audio-recorded" substitute "recorded by audiovisual recording, if practicable, or by audio recording".
(13)For section 464L(5)(a) of the Crimes Act 1958 substitute—
"(a)record by audio recording or audiovisual recording; or".
(14)In section 464L(6) of the Crimes Act 1958, for "tape-recorded" substitute "recorded by audio recording or audiovisual recording".
(15)In section 464L(7) of the Crimes Act 1958—
(a)for "tape-recorded" substitute "recorded by audio recording or audiovisual recording";
(b)in paragraph (a), for "tape-recording" substitute "recording (whether audio recording or audiovisual recording)";
(c)in paragraph (b), for "tape-recording" substitute "recording".
(16)In section 464M(9)(c) of the Crimes Act 1958, for "video-recorded, if practicable, or audio-recorded" substitute "recorded by audiovisual recording, if practicable, or otherwise by audio recording".
(17)In section 464M(10)(b) of the Crimes Act 1958, for "video-recorded" substitute "made the audiovisual recording of".
(18)In section 464S(2) of the Crimes Act 1958—
(a)in paragraph (a), for "tape-recording" substitute "audio recording or audiovisual recording";
(b)in paragraph (b)(i)—
(i)for "tape-recording" (where first occurring) substitute "audio recording or audiovisual recording";
(ii)for "tape-recording" (where secondly and thirdly occurring) substitute "recording".
(19)In section 464SB(5) of the Crimes Act 1958—
(a)in paragraph (a), for "tape-recording" substitute "audio recording or audiovisual recording";
(b)in paragraph (b), for "tape-recording" substitute "recording".
(20)In section 464W(9) of the Crimes Act 1958—
(a)in paragraph (a), for "tape-recording" substitute "audio recording or audiovisual recording";
(b)in paragraph (b)(i)—
(i)for "tape-recorded" substitute "recorded by audio recording or audiovisual recording";
(ii)for "tape-recording" (where twice occurring) substitute "recording".
(21)In section 464Y(2) of the Crimes Act 1958—
(a)in paragraph (a), for "tape-recording" substitute "audio recording or audiovisual recording";
(b)in paragraph (b)(i)—
(i)for "tape-recorded" substitute "recorded by audio recording or audiovisual recording";
(ii)for "tape-recording" (wherever occurring) substitute "recording".
(22)In section 464Z(3AB) of the Crimes Act 1958, for "tape-recording" substitute "audio recording or audiovisual recording".
(23)In section 464Z(3A)(b) of the Crimes Act 1958, for "tape-recording" substitute "audio recording or audiovisual recording".
(24)In section 464Z(3B)(a) of the Crimes Act 1958—
(a)for "tape-recorded" substitute "recorded by audio recording or audiovisual recording";
(b)for "tape-recording" (wherever occurring) substitute "recording".
(25)In section 464ZA(4)(a) of the Crimes Act 1958, for "video-recorded" substitute "recorded by audiovisual recording".
(26)In section 464ZA(5) of the Crimes Act 1958, for "video-recorded" substitute "recorded by audiovisual recording".
(27)In section 464ZA(6)(a) of the Crimes Act 1958—
(a)for "video-recorded" (where first occurring) substitute "recorded by audiovisual recording";
(b)for "video-recorded" (where secondly occurring) substitute "recorded".
(28)In section 464ZA(7) of the Crimes Act 1958—
(a)for "video-recorded" substitute "recorded by audiovisual recording";
(b)for "video-recording" substitute "audiovisual recording".
(29)In section 464ZE(4) of the Crimes Act 1958, for "video-recorded" substitute "recorded by audiovisual recording".
(30)In section 464ZGB(4) of the Crimes Act 1958—
(a)for paragraph (a)(ii) substitute—
"(ii)by audiovisual recording, if practicable, or otherwise by audio recording; and";
(b)in paragraph (b)(i), for "video or audio tape-recording" substitute "audiovisual recording or audio recording".
(31)In section 464ZGD of the Crimes Act 1958—
(a)in sub-section (1)(b), for "video-recorded" substitute "recorded by audiovisual recording";
(b)in sub-section (2)—
(i)for "video-recorded" substitute "recorded by audiovisual recording";
(ii)for "video-recording" substitute "audiovisual recording".
18.New section 605 inserted
After section 604 of the Crimes Act 1958 insert—
"605.Transitional provision—Justice Legislation (Further Miscellaneous Amendments) Act 2006
(1)The amendments made to this Act by sections 3(b), 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the Justice Legislation (Further Miscellaneous Amendments) Act 2006 only apply with respect to findings of not guilty because of mental impairment on or after the commencement of that Act.
(2)The amendments made to this Act by sections 3(c) and 17 of the Justice Legislation (Further Miscellaneous Amendments) Act 2006 only apply to recordings made on or after the commencement of that Act.".
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PART 3—AMENDMENT OF OTHER ACTS
19.Amendment of Crimes (Sexual Offences) Act 2006
For section 45(3)(b) of the Crimes (Sexual Offences) Act 2006 substitute—
'(b)after item 1 insert—
"1A.An offence against section 38A of the Crimes Act 1958 (compelling sexual penetration).".'.
20.Amendment of Major Crime Legislation (Office of Police Integrity) Act 2004
Sections 13(1)(b) and 15 of the Major Crime Legislation (Office of Police Integrity) Act 2004 are repealed.
21.Amendment of Surveillance Devices (Amendment) Act 2004
(1)In section 5(1)(a) of the Surveillance Devices (Amendment) Act 2004, after the proposed definition of "business day" insert—
' "Commonwealth Ombudsman" means the person holding office as the Commonwealth Ombudsman under the Ombudsman Act 1976 of the Commonwealth;'.
(2)In section 13 of the Surveillance Devices (Amendment) Act 2004—
(a)for proposed section 30F(1)(g) of the Surveillance Devices Act 1999 substitute—
"(g)an inspection by the Special Investigations Monitor under section 30P;
(ga)an inspection by the Commonwealth Ombudsman under a provision of a corresponding law that corresponds to section 30P;";
(b)for the heading to proposed section 30P of the Surveillance Devices Act 1999 substitute—
"Inspection of records by Special Investigations Monitor";
(c)in proposed section 30P(1) of the Surveillance Devices Act 1999, for "The relevant Ombudsman in relation to a law enforcement agency must, from time to time, inspect the records of the agency" substitute "The Special Investigations Monitor must, from time to time, inspect the records of a law enforcement agency";
(d)in proposed section 30P(2) and (3) of the Surveillance Devices Act 1999, for "relevant Ombudsman" (wherever occurring) substitute "Special Investigations Monitor";
(e)at the foot of proposed section 30P of the Surveillance Devices Act 1999 insert—
"Note:See section 55 of the Surveillance Devices Act 2004 of the Commonwealth for inspection of records of the Australian Crime Commission.";
(f)for the heading to proposed section 30Q of the Surveillance Devices Act 1999 substitute—
"Reports on investigations by Special Investigations Monitor";
(g)in proposed section 30Q of the Surveillance Devices Act 1999—
(i)for "A relevant Ombudsman" (wherever occurring) substitute
"The Special Investigations Monitor"; and
(ii)for "Attorney-General" substitute "Minister";
(h)at the foot of proposed section 30Q of the Surveillance Devices Act 1999 insert—
"Note:See section 61 of the Surveillance Devices Act 2004 of the Commonwealth for reports on inspections of records of the Australian Crime Commission.".
22.New proposed section inserted in Surveillance Devices (Amendment) Act 2004
In section 13 of the Surveillance Devices (Amendment) Act 2004, after proposed section 30Q of the Surveillance Devices Act 1999 insert—
"30R.Commonwealth Ombudsman's reports on investigations
(1)The Minister must cause a copy of a report by the Commonwealth Ombudsman that is sent to the Minister under section 61(3) of the Surveillance Devices Act 2004 of the Commonwealth to be laid before each House of the Parliament within 14 sitting days of that House after it is received by the Minister.
(2)If a report referred to in sub-section (1) is sent to the Minister before the commencement of the Justice Legislation (Further Miscellaneous Amendments) Act 2006, the Minister must cause a copy of the report to be laid before each House of the Parliament within 14 sitting days of that House after the commencement of that Act.".
23.Amendment of the Working with Children Act 2005
(1)In section 10(2)(a) of the Working with Children Act 2005, for "prescribed form" substitute "form approved by the Secretary".
(2)After section 10(2) of the Working with Children Act 2005 insert—
"(2A)The approved form must provide for the following particulars—
(a)the full name of the applicant and any other names by which the applicant is or has been known; and
(b)the date and place of birth of the applicant; and
(c)the gender of the applicant; and
(d)the residential address and telephone number of the applicant; and
(e)the type of child-related work in which the applicant is engaged or intends to engage and whether it is for profit or gain; and
(f)the name, address and telephone number of each person with whom the applicant is engaged in child-related work; and
(g)any other information in relation to the applicant that the Secretary reasonably believes is appropriate.".
(3)In section 10(3) of the Working with Children Act 2005, for "prescribed" (where first occurring) substitute "approved".
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ENDNOTES
Minister's second reading speech—
Legislative Assembly: 4 May 2006
Legislative Council: 1 June 2006
The long title for the Bill for this Act was "to amend the Crimes Act 1958, the Crimes (Sexual Offences) Act 2006, the Major Crime Legislation (Office of Police Integrity) Act 2004, the Surveillance Devices (Amendment) Act 2004 and the Working with Children Act 2005 and for other purposes."
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