Queensland Bills Explanatory Notes Queensland Bills Explanatory Notes[Index] [Search] [Download] [Bill] [Help]
Criminal Law Amendment Bill 2014
CRIMINAL LAW AMENDMENT BILL 2014
Explanatory Notes
Short title
The short title of the Bill is the Criminal Law Amendment Bill 2014.
Policy objectives and the reasons for them
The objective of the Criminal Law Amendment Bill 2014 (the Bill) is to make various
amendments to a number of criminal law and criminal law related Acts administered
by the Attorney-General and Minister for Justice including to:
· the Acts Interpretation Act 1954 to allow chairs of various government boards,
tribunals and similar entities established under an Act to choose their preferred
title, whether it be "chair", "chairperson", "chairman" or "chairwoman" or another
similar title (chair title), irrespective of what chair title is used in the Act. The
amendment also applies to deputy chairs;
· the Bail Act 1980 to provide for a court or police officer to consider imposing a
special condition for the surrender of a defendant's passport and prohibiting an
application for a new passport when granting bail to a non-resident; and to
mandate that, where a surrender passport condition is imposed on any defendant
(i.e. not just non-residents) the defendant must be detained until the passport is
surrendered. This amendment will help ensure that defendants who pose a flight
risk, are not inadvertently released from custody and able to use their passport to
abscond from the jurisdiction before their court matter has been dealt with;
· the Criminal Code to:
- retrospectively apply the exceptions to the rules against double jeopardy
under Chapter 68. That is, Queensland's double jeopardy exception regime
will apply to all acquittals of a relevant offence, irrespective of when the
alleged offence was committed and the timing of the acquittal. The
amendment is consistent with the approach already taken across the other
Australian jurisdictions;
- widen the application of section 328B (Additional power to convict for
dangerous driving) so that section 328A (Dangerous operation of a vehicle)
is a statutory alternative to an offence connected with or arising out of the
operation, or interference in any way with the operation, of a vehicle. This
extends section 328A, as a statutory alternative, to an offence alleging the
offender interfered with the operation of the vehicle (currently limited to the
driving of the vehicle) and applies it to all vehicles, not just motor vehicles;
Page 1
Criminal Law Amendment Bill 2014
- insert a range of new offences to address match-fixing conduct to assist in
securing the integrity of sporting contests and associated gambling activities.
The new offences implement a key objective of the National Policy on
Match-Fixing in Sport agreed to by all Australian Governments in June 2011
that jurisdictions would pursue a nationally consistent approach to criminal
offences in relation to match-fixing and cheating at gambling. The new
offences are based on the model match-fixing behaviours approved by the
Standing Council on Law and Justice on 18 November 2011 and are
consistent with offences introduced in other Australian jurisdictions;
- increase the maximum penalty for the offence in section 229G(2) (Procuring
engagement in prostitution) from 14 years to 20 years imprisonment where
the person procured is a child or a person with an impairment of the mind.
Prosecutions of offences under section 229G(2) have generally been of a
shocking nature and understandably garnered significant public attention and
denouncement. The increase in the maximum penalty is consistent with the
overall approach in the Criminal Code to protect the young and vulnerable
from sexual depravity and exploitation;
- insert a new indictable offence of serious animal cruelty carrying a maximum
penalty of seven years imprisonment. The new offence will target those
persons who intentionally inflict severe pain or suffering upon an animal; in
effect the torture of an animal. The new offence responds to community
outrage at such conduct and also remedies a current legislative gap in the
protection of animals against such abhorrent conduct. Associated and
consequential amendments are made to the Animal Care and Protection Act
2001, the Justices Act 1886 and the Director of Public Prosecutions Act
1984;
- set the position with respect to the extent a court may rely upon a previous
conviction at sentencing where a circumstance of aggravation that is a
previous conviction is not stated in the indictment in accordance with section
564(2) (Form of indictment);
- insert a new aggravating factor into section 398 (Punishment of stealing),
punishment in special cases, item 13 (Stealing by looting) when the offence
is committed in an area that is or was, immediately before the offence was
committed, a declared area for a disaster situation under the Disaster
Management Act 2003, which includes human caused disaster situations. The
amendment implements recommendation two of the Legal Affairs and
Community Safety Committee in its Report No. 40 (tabled in Parliament on
23 September 2013);
· the Criminal Proceeds Confiscation Act 2002 to remove the requirement that
interstate restraining orders and pecuniary penalty orders must be based on a
criminal charge or conviction. This amendment recognises the widespread
emergence in Australia of non-conviction based criminal confiscation orders and
is considered vital to proper interstate cooperation on confiscation matters;
· the Dangerous Prisoners (Sexual Offenders) Act 2003 to:
Page 2
Criminal Law Amendment Bill 2014
- amend section 43AA (Contravention of relevant order) to insert a new
circumstance of aggravation where the released prisoner contravenes the
relevant order without a reasonable excuse by removing or tampering with a
stated device (for example, a Global Positioning System (GPS) tracking
device) for the purpose of preventing the location of the released prisoner
being monitored. The new aggravated offence is a crime and punishable by a
maximum penalty of five years imprisonment with a mandatory minimum
period of one year imprisonment to be served wholly in a corrective services
facility. The amendment reinforces that interference with a monitoring device
strikes at the heart of the protective effect of this community protection
regime. The offence simpliciter is upgraded to an indictable offence and will
be open as an alternative verdict for the new aggravated offence;
- clarify the definition of `serious sexual offence' under the Schedule
(Dictionary) to ensure the regime applies to an offence of a sexual nature,
against a person, including a fictitious person represented to the prisoner as a
real person, whom the prisoner believed to be a child under the age of 16
years. The amendment overcomes the challenges confronted in Dodge v
Attorney-General for the State of Queensland [2012] QCA 280 and ensures
that the regime extends to prisoners convicted of offences such as section
218A (Using the internet to procure children under 16) of the Criminal Code
or section 218B (Grooming children under 16), even where the conviction is
based upon a fictitious child rather than an actual child (for example, a police
officer posing as a child but the prisoner believed them to be a child);
· the Drugs Misuse Act 1986 to enable the Minister to recommend the prescription
of a thing as a dangerous drug under the Drugs Misuse Regulation 1987, without
full consideration of the matters listed in section 134A, where a rapid response by
Government is required;
· the Evidence Act 1977 to:
- establish a rebuttable presumption in favour of expert witnesses providing
their testimony in a criminal or civil proceeding via audio link or audio visual
link. The greater use of audio link and audio visual technology in the reception
of expert evidence aims to encourage greater participation in the justice system
by skilled witnesses and to minimise the cost and disruption experienced by
experts who provide their time to assist in court proceedings;
- update section 95 (Admissibility of statements produced by computers) to
recognise technological advancements having regard to presumptions in the
Uniform Evidence Act (which now applies in the Commonwealth, New South
Wales, Victoria, Tasmania, the Australian Capital Territory and Northern
Territory) about the authenticity and reliability of evidence produced by a
device or process;
- insert an evidentiary aid to facilitate proof in a proceeding of the making of a
declaration of a disaster situation under the Disaster Management Act 2003;
· the Justices Act 1886 to:
Page 3
Criminal Law Amendment Bill 2014
- provide the Attorney-General with standing to appeal sentences imposed for
simple offences dealt with summarily;
- set the position with respect to the extent a court may rely upon a prior
conviction at sentencing where a notice of intention to allege a prior
conviction is not served in accordance with section 47;
- amend the requirements for service and the documenting of service of a notice
of intention to allege a prior conviction or a criminal history under section 47;
- better facilitate the use of a web based portal for electronic pleas of guilty in
the Magistrates Courts; and
· the Penalties and Sentences Act 1992 to:
- insert new section 13B to provide a regime aimed at ensuring the protection
and confidentiality of informants who significantly assist law enforcement
agencies with their investigations but fall outside the ambit of the existing
section 13A as the informant is not willing to give the type of undertaking
required under section 13A (for example, a person whose co-operation is
reflected in an affidavit by a law enforcement agency; colloquially known as a
`letter of comfort');
- amend section 187 (Disqualification from holding Queensland driver licence)
to widen the scope of the sentencing court's discretion to impose a driver
licence disqualification for an offender who was not the driver of the motor
vehicle at the relevant time but whose conduct nevertheless amounts to an
offence in connection with or arising out of its operation (for example, a
passenger who applies the handbrake causing the driver to lose control); and
- include section 229G(2) (Procuring engagement in prostitution) of the
Criminal Code as a serious violent offence in Schedule 1 (Serious violent
offences).
A number of significant reforms to the Queensland youth justice system were
implemented through the Youth Justice and Other Legislation Amendment Act 2014
from its commencement on 28 March 2014. These reforms included:
· the expansion of the sentenced youth boot camp program through the creation of a
mandatory boot camp (vehicle offences) order for recidivist vehicle offenders
usually residing in prescribed areas; and
· promoting greater transparency and public confidence in the youth justice system
by opening the Childrens Court for youth justice proceedings involving repeat
offenders.
Following commencement of the Youth Justice and Other Legislation Amendment Act
2014, two technical matters and an emergent issue have been identified which require
minor legislative amendments. The Bill makes a number of minor amendments to the
Youth Justice Act 1992 to address these issues to:
Page 4
Criminal Law Amendment Bill 2014
· enhance the good order and discipline of sentenced youth boot camp centres
operated under the Youth Justice Act 1992;
· ensure information identifying a child as subject to the Child Protection Act 1999
is able to be used in preparing and providing pre-sentence reports ordered by the
Childrens Court; and
· clarify the circumstances in which a court must make a boot camp (vehicle
offences) order under the Youth Justice Act 1992.
Achievement of policy objectives
The Bill achieves the objectives by way of the proposed amendments to existing
legislation as described below.
Alternative ways of achieving policy objectives
There are no alternative ways of achieving the policy objectives.
Estimated cost for government implementation
Any costs in relation to the amendments will be met from existing agency resources.
The future allocation of resources will be determined through normal budgetary
processes.
Consistency with fundamental legislative principles
The Bill is generally consistent with fundamental legislative principles. Any potential
breaches of the fundamental legislative principles are addressed and justified below.
Retrospective application of Queensland's double jeopardy exception regime
Chapter 68 of the Criminal Code is amended to apply Queensland's existing double
jeopardy exception regime retrospectively. The following justifications are relied on
for the amendment:
- the advancements in forensic and scientific technology and the high (often
overwhelming) quality, probity and reliability of evidence not available in
previous years which can now be obtained through re-testing or re-examination
of exhibits. Without retrospectivity, the potential advantage in applying new and
advancing technology to old cases is lost;
- the extremely serious and dangerous nature of the offences covered by the double
jeopardy exception regime (that is, the offence of murder or an offence carrying a
maximum penalty of 25 years or more imprisonment);
- the strong public interest in pursuing convictions for the most heinous unsolved
crimes, most often murder in this context;
- that all of the existing protective safeguards under Chapter 68 continue to apply;
and
Page 5
Criminal Law Amendment Bill 2014
- without retrospectivity, an arbitrary distinction is drawn between persons
acquitted before and after 25 October 2007 (that is, the commencement date of
Chapter 68). Victims of crime and the community can be justifiably outraged
where new evidence in an old case is obtained and the double jeopardy exception
regime would otherwise have applied but for timing. Further, a person the subject
of compelling evidence of guilt for a very serious offence should not be protected
by this arbitrary timing.
Serious animal cruelty
The Bill introduces a new offence of serious animal cruelty. This offence will apply to
a narrow cohort of offenders who intentionally torture an animal. There are existing
offences for certain acts of animal cruelty and it is anticipated that the majority of
animal cruelty cases will continue to be prosecuted under section 18 of the Animal
Care and Protection Act 2001. Section 468 (Injuring animals) of the Criminal Code
also provides that any person who wilfully and unlawfully kills, maims or wounds,
any animal capable of being stolen is guilty of an indictable offence. The offence
carries up to three years imprisonment in the case of domestic animals and seven
years if the animal in question is stock. These existing offences do not adequately
provide for the case where a person intentionally inflicts severe pain and suffering on
an animal; in effect, the torture of an animal. The maximum penalty for the new
offence of seven years imprisonment is justified on the basis of the moral importance
of animals and the obligation society owes to protect them from suffering and will
encourage the imposition of sentences that meet community expectations.
Associated and consequential amendments are made to the Animal Care and
Protection Act 2001 to ensure that the powers of inspectors (including powers to enter
premises without a warrant in particular circumstances and also to seize evidence)
apply to the investigation of the new offence of serious animal cruelty and that
evidence obtained during the investigation can be used, subject to the rules of
admissibility, in prosecution proceedings. The amendments address current
inconsistencies in the ambit of the powers of inspectors and are justified given the
high level of harm inflicted by serious animal cruelty.
Match-fixing offences
The Bill inserts a new Chapter 43 titled `Match-fixing' and introduces six new
offences targeting match-fixing conduct and the use of inside information for betting
purposes. The introduction of these new offences is justified to protect the integrity of
Australian sport and to address the issue of inappropriate and fraudulent sports betting
and match-fixing activities. The Australian Crime Commission, in their report
Organised Crime and Drugs in Sport released in February 2013, identified the
growing risk of organised crime infiltration in sport targeting elite and sub-elite
athletes with the objective of having athletes participate in match-fixing activities.
With the substantial growth of the sports betting market, in particular the online
wagering industry, it is imperative that a safe and lawful market for sports betting be
preserved. Match-fixing can involve potential gains or losses in the millions of
dollars. The creation of specific match-fixing offences removes ambiguity about
whether existing criminal offences could apply to types of match-fixing arrangements
or conduct. The new offences will allow enforcement agencies and the courts to deal
Page 6
Criminal Law Amendment Bill 2014
with match-fixing behaviours in an efficient and effective manner through a clear set
of offences.
The new offences have been drafted in accordance with the National Policy on
Match-Fixing in Sport as agreed to by Australian Governments on 10 June 2011 and
the six match-fixing behaviours and associated penalties that were approved by the
Standing Council on Law and Justice. The new match-fixing offences are similar to
those introduced in other Australian jurisdictions.
Stealing by looting
The amendment to the offence of Stealing by looting under section 398 of the
Criminal Code reinforces the significance of a declaration made under the Disaster
Management Act 2003, acknowledges the particular vulnerability of a community
affected by the making of such a declaration, and is justified to ensure adequate
punishment for this serious conduct.
Dangerous operation of a vehicle - a statutory alternative charge
The amendment to section 328B (Additional power to convict for dangerous driving)
of the Criminal Code means that a person who is acquitted of the indicted charge may
be liable to conviction for a lesser alternative charge which would not otherwise have
been open. The amendment is necessary to properly align the language of section
328B with that of section 328A of the Criminal Code, and is justified to ensure that a
person who was not the driver of the vehicle but who commits an offence involving
the interference in any way with the operation of the vehicle, is not able to avoid
criminal responsibility for their actions because of drafting inconsistency between
sections of the Criminal Code.
Procuring engagement in prostitution
The amendment to section 229G(2) (Procuring engagement in prostitution) of the
Criminal Code and the inclusion of section 229G(2) to the schedule of serious violent
offences in the Penalties and Sentences Act 1992 will affect the rights and liberties of
some individuals. Offences committed against section 229G(2) are often marked by
significant depravity, a gross breach of trust and fuelled by a desire for financial gain
or enrichment making them of a serious nature. For these reasons, an increase in the
maximum penalty from 14 years to 20 years imprisonment in section 229G(2) is
consistent with the overall approach in the Criminal Code to protect the young and
vulnerable from sexual depravity and exploitation. The inclusion of section 229G(2)
in the serious violent offence schedule reflects the seriousness of the offence and is
consistent with the current inclusion of offences in the schedule.
Surrender of passport as a condition of bail
It may be argued that the amendment to the Bail Act 1980, to require the court to
order that the person be detained until a passport surrender condition is complied
with, impinges upon the independence and discretion of the courts. The amendment is
justified to address a significant risk of flight where a court considers it necessary to
impose a condition relating to the surrender of a person's passport. The proposed
amendment does not override or interfere with the discretion of the court or police
Page 7
Criminal Law Amendment Bill 2014
officer to make a decision about bail or the imposition of bail conditions. There are
also safeguards provided in the Bail Act 1980 regarding the right to be heard and to
appeal against bail decisions.
Dangerous prisoners
The amendments to the Dangerous Prisoners (Sexual Offenders) Act 2003 are
justified to further bolster the protection that the regime provides to the community
against dangerous prisoners that commit serious sexual offences. Significantly,
interference with a monitoring device by a released prisoner strikes at the heart of the
protective effect of such a regime and requires strong penalties to condemn and deter
such a serious contravention of a relevant order. While the amendments to section
43AA (Contravention of a relevant order) apply to a supervision or interim
supervision order made before commencement, for the new strengthened punishment
to apply, the contravention must occur post commencement.
The amended definition of `serious sexual offence' applies retrospectively; however
such an approach is consistent with that taken to the application of the Dangerous
Prisoners (Sexual Offenders) Act 2003 as enacted.
Amendment of the Drugs Misuse Act 1986
The amendment to section 134A of the Drugs Misuse Act 1986 will allow the
Minister to recommend prescription of a thing in schedule 1-5 of the Drugs Misuse
Regulation 1987 without full consideration of the matters listed in that section.
However, the amendment requires that the Minister is satisfied that prescription is
required as a matter of urgency having regard to one or more of the matters listed.
This may include, for example, the risks of the drug to public health and safety and
the potential for use of the drug to cause death. If a regulation is made by the
Governor-in-Council based on the Minister's recommendation it will still be subject to
the scrutiny of the Legislative Assembly and disallowance.
Amendments to the Evidence Act 1977
The Bill amends the Evidence Act 1977 to establish a rebuttable presumption in
favour of expert witnesses providing their testimony in a criminal or civil proceeding
via audio link or audio visual link. The amendment is justified because the proposed
presumption is rebuttable and can be overturned on the application of any party to
proceedings or a judge or magistrate on their own motion in the interests of justice. It
is further justified because it gives encouragement to properly qualified experts to
participate in the justice system by ensuring as far as possible that their participation
creates minimal disruption to their other professional activities.
Consistent with the current provision, the new section 95 of the Evidence Act 1977
inserted by the Bill, allows an evidentiary certificate to be used to establish that a
device or process, if properly used, produces a particular document or thing. The
matters that may be contained in the certificate are non-controversial and provision is
made for the opposing party to challenge a matter stated in the certificate. Other
safeguards will also continue to apply in relation to the admission of such evidence,
including section 130 of the Evidence Act 1977. That section provides that nothing in
the Act derogates from the power of the court in a criminal proceeding to exclude
Page 8
Criminal Law Amendment Bill 2014
evidence if the court is satisfied that it would be unfair to the person charged to admit
that evidence.
Amendments to the Justices Act 1886
An amendment is made to section 146A of the Justices Act 1886 to allow the clerk of
the court to bring forward the time appointed for the hearing of the case where a
written plea of guilty has been received from a defendant under that section. This
provision may negatively affect the parties by reducing the notice each party has
before determination of the matter.
This amendment will promote increased efficiency in the administration of justice by
giving the courts greater flexibility in the allocation of resources and scheduling of
matters. The new hearing date will not be able to be less than seven business days
after the day on which notice is given to the parties. Anecdotal evidence suggests that
pleas of guilty are not commonly withdrawn under section 146A and the power given
to the clerk of the court to move the hearing date is discretionary and therefore would
only be used in appropriate cases.
The amendments also allow the court to hear a matter "on the papers" (i.e. without the
parties appearing in person). This may increase the burden on the court in
substantiating the defendant's plea where they do not have legal representation. The
new web portal for electronic pleas addresses this issue by specifically asking the
defendant to complete an acknowledgement that the plea is given freely and without
duress. A magistrate also has a wide overriding discretion under section 146A to
refuse to accept a written plea of guilty.
Retrospective application of procedural laws: amendments to the Bail Act 1980,
the Criminal Code and Justices Act 1886
The amendments to the Bail Act 1980 will apply to proceedings heard from the day of
commencement of the amendments. The transitional provision provides that the
amendments will apply retrospectively in the sense that they will capture proceedings
commenced before these amendments are passed and irrespective of when the
relevant offence occurred.
The Bill provides a transitional provision for the amendment to section 564 (Form of
indictment) of the Criminal Code which sets the position with respect to the extent a
court may rely upon a previous conviction at sentencing where a circumstance of
aggravation that is a previous conviction is not stated in the indictment in accordance
with section 564(2). A similar transitional provision is provided for the amendments
to section 47 of the Justices Act 1886 (What is sufficient description of offence)
which set the position with respect to the extent a court may rely upon a prior
conviction at sentencing where a notice of intention to allege a prior conviction is not
served in accordance with section 47. The transitional provisions provide that those
amendments apply to the sentencing of an offender for an offence, regardless of
whether the proceeding for the offence was started before, on or after the
commencement of the transitional provisions. The general principle is that legislation
should not adversely affect rights and liberties of individuals retrospectively.
Page 9
Criminal Law Amendment Bill 2014
The amendments to the Bail Act 1980, section 564 of the Criminal Code and section
47 of the Justices Act 1886 will apply retrospectively in the sense that they will
capture proceedings instituted before the amendments have commenced and
irrespective of when the relevant offence occurred. This is consistent with the
common law on the application of procedural laws. In the absence of an express
provision to the contrary, procedural laws are construed so as to operate
retrospectively and apply to events that have occurred in the past that are presently
before the court. The general rule is that the procedural law applying in a court
proceeding is the procedural law in place on the day of the proceeding. Therefore the
amendments are consistent with this approach.
Confidentiality of informants
The transparency of the criminal justice system requires, in most instances, that the
sentencing of offenders take place in an open court. The new section 13B of the
Penalties and Sentences Act 1992 requires the court to be closed and prohibits the
disclosure of part or all of the sentencing proceedings (however, the penalty imposed
must be stated in open court). Protecting the safety of an informant and the
confidentiality of the information provided is vitally important to encourage others to
cooperate with law enforcement agencies (even if the informant is not prepared to
testify against another) and to avoid jeopardising ongoing investigations. This type of
informant is very important to law enforcement agencies in combating serious crime.
While the amendment has retrospective application this operates to the benefit of the
offender.
Amendments to the Youth Justice Act 1992
The Convention on the Rights of the Child1 and the United Nations Standard
Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules)2
provide that young offenders' privacy should be fully respected at all stages of
proceedings against them. The amendments to the Youth Justice Act 1992 to exempt
from the confidentiality provisions of the Child Protection Act 1999 the use and
disclosure of information about a child for the purposes of preparing and providing
pre-sentence reports to the Childrens Court impacts on the privacy of children before
the youth justice system.
This amendment is justified as sufficient safeguards will remain in place to protect the
interests and wellbeing of children affected by this exemption. These include the
existing confidentiality provisions of part 9 the Youth Justice Act 1992, which will
continue to protect the confidentiality of all reports prepared for the purposes of court
proceedings relating to children; such reports include pre-sentence reports, which may
potentially contain child protection information. These confidentiality provisions will
not prevent the discussion of the content of pre-sentence reports by court officers in
open court. However, the provisions of the Childrens Court Act 1992 requiring the
Childrens Court to be closed when hearing a youth justice matter in relation to a first-
time offender and otherwise providing for the court to be closed by court order (other
than a proceeding for an indictable offence) provide adequate protective mechanisms
for the privacy of children before the court in these circumstances. Further, the
1
Ratified by Australia on 17 December 1990.
2
Adopted by General Assembly resolution 40/33 of 29 November 1985.
Page 10
Criminal Law Amendment Bill 2014
existing provisions of the Child Protection Act 1999 prohibiting the publication of
information identifying a child as subject to that Act will continue in effect, including
in relation to information disclosed in proceedings under the Youth Justice Act 1992.
The amendments to the Youth Justice Act 1992 to enable youth detention centre
officers to use a range of practices to maintain good order and discipline at a boot
camp centre (such as restraint, seclusion and personal searches) expose young
offenders participating in a boot camp program to the potential use of force. Whether
legislation has sufficient regard for the rights and liberties of an individual depends in
part on whether it subjects a person to practices involving the use of force--such as
personal searches--without appropriate safeguards. The use of this force will be
subject to a number of careful safeguards, including the insertion of clear guidelines
into the Youth Justice Regulation 2003. These guidelines will prescribe the
circumstances in which the use of force is approved, the purposes for which force
may be used, the type and degree of force that may be used and other limitations such
as the duration for which force may be used. Youth detention centre officers will also
be required to record details of each episode in which force is used in a boot camp
centre.
The amendments to the Youth Justice Act 1992 to empower youth detention centre
officers to maintain the good order and discipline of a boot camp centre will
potentially subject children participating in a boot camp program to greater
restrictions on their freedom of movement while in the residential phase of that
program. This will include children who have not consented to be subject to practices
involving the use of force. Legislation should not abrogate rights and liberties from
any source without sufficient justification. In practice, this means that youth justice
legislation should have regard to the particular vulnerabilities of children.
This restriction is justified having regard to the state's obligation to appropriately
protect the safety of persons in its lawful custody and the security of facilities
provided for custodial purposes. The Youth Justice Act 1992 currently only permits
the use of directions for maintaining good order and discipline at a boot camp centre.
The lack of a head of power to use proportionate force has prevented appropriate
measures being taken to address several recent incidents at the Lincoln Springs boot
camp centre. Empowering youth detention centre officers to use force at a boot camp
centre in prescribed circumstances is a proportionate and necessary measure for
protecting the safety of staff and participants in a boot camp program and any
property affected by participants' actions.
Consultation
Consultation on a draft version of the Bill (which did not include amendments to the
Acts Interpretation Act 1954; the Criminal Code section 398 (Punishment of stealing)
or section 564 (Form of indictment); the Justices Act 1886 to facilitate electronic
pleas of guilty; and the Youth Justice Act 1992) occurred with the President of the
Court of Appeal, the Chief Judge of the District Court, the Chief Magistrate, the
Director of Public Prosecutions, the Queensland Law Society, the Bar Association of
Queensland and the Crime and Misconduct Commission.
Page 11
Criminal Law Amendment Bill 2014
Consultation occurred on the amendments to section 564 of the Criminal Code with
the Director of Public Prosecutions.
Consultation on the policy to amend the Justices Act 1886 to facilitate electronic pleas
of guilty occurred with the Chief Magistrate, the Director of Public Prosecutions
(Commonwealth and Queensland), Legal Aid Queensland, the Queensland Law
Society, the Queensland Police Union and the Bar Association of Queensland.
The policy for the amendment to section 398 (Punishment of stealing) of the Criminal
Code was exposed to the public through the Queensland Government Response to the
Legal Affairs and Community Safety Committee, Report No. 40 on the Criminal
Code (Looting in Declared Areas) Amendment Bill 2013.
Consultation on the new serious animal cruelty offence occurred with the Royal
Society for the Prevention of Cruelty to Animals (Queensland) Inc.
The Criminal Code match-fixing offences are based on the match-fixing behaviours
developed by the Standing Council on Law and Justice Match-Fixing Working Group
and were approved by, and exposed to the public through, the Standing Council on
Law and Justice.
Consultation on the Youth Justice Act 1992 amendments for the good order and
discipline at boot camp centres occurred with the operator of the Lincoln Springs boot
camp centre.
Consistency with legislation of other jurisdictions
The Bill is specific to the State of Queensland, and is not uniform with or
complementary to legislation of the Commonwealth or another state, except as
detailed below.
The amendments to the Acts Interpretation Act 1954 are based on section 18B of the
Commonwealth Acts Interpretation Act 1901.
The Bill inserts Chapter 43 into the Criminal Code and provides for a range of match-
fixing offences. These match-fixing offences are based on six agreed match-fixing
behaviours agreed to by the Standing Council on Law and Justice to guide the scope
of new match-fixing offences and were created as part of the National Policy on
Match-Fixing in Sport. Under the National Policy on Match-Fixing in Sport, all
Australian governments agreed to pursue nationally consistent legislative
arrangements to address the particular issues of match-fixing, including a consistent
approach to criminal offences.
The new match-fixing offences in the Criminal Code are consistent in nature with
match-fixing offences introduced in other Australian jurisdictions (New South Wales,
Victoria, South Australia, the Northern Territory and the Australian Capital
Territory). This provides consistency in addressing inappropriate and fraudulent
sports betting and match-fixing activities across jurisdictions and assists in securing
the integrity of Australian sport.
Page 12
Criminal Law Amendment Bill 2014
Notes on provisions
Part 1 Preliminary
Clause 1 states that, when enacted, the Bill will be cited as the Criminal Law
Amendment Act 2014.
Part 2 Amendment of Acts Interpretation Act 1954
Clause 2 states this part amends the Acts Interpretation Act 1954.
Clause 3 inserts new sections 34A (Chair titles) and 34B (Deputy chair titles) into the
Acts Interpretation Act 1954.
New section 34A (Chair titles) provides that if an Act establishes an office with a
chair title (being the title of chair, chairperson, chairman, chairwoman or other similar
title) a person holding the office may choose to be referred to by the title provided for
in the Act or another chair title.
The section further provides that it is irrelevant for the performance of functions and
exercising powers that the person holding the office uses another chair title to that
provided for in the Act establishing the office.
New section 34B (Deputy chair titles) provide that if an Act establishes an office with
a deputy chair title (being the title of deputy chair, deputy chairperson, deputy
chairman, deputy chairwoman or other similar title) a person holding the office may
choose to be referred to by the title provided for in the Act or another deputy chair
title.
The section further provides that it is irrelevant for the performance of functions and
exercising powers that the person holding the office uses another deputy chair title to
that provided for in the Act establishing the office.
Part 3 Amendment of Animal Care and Protection Act
2001
Clause 4 states this part amends the Animal Care and Protection Act 2001.
Clause 5 amends section 115 (Functions) to expand the functions of an inspector
beyond the investigation and enforcement of compliance with the Act to include the
investigation and enforcement of new section 242 (Serious animal cruelty) and
section 468 (Injuring animals) of the Criminal Code. This will ensure that RSPCA
inspectors appointed under the Act can investigate and commence proceedings for the
indictable offences.
Clause 6 amends section 122 (Power of entry) to extend subparagraph (1)(g)(i) to all
animal welfare offences. The term `animal welfare offence' is defined in the
Dictionary to the Act to include specified offences under the Act as well as the
Page 13
Criminal Law Amendment Bill 2014
Criminal Code. Clause 17 of the Bill amends the phrase `animal welfare offence' to
include new section 242 of the Criminal Code. The specific power in subparagraph
(1)(g)(i) provides for entry to a place if the inspector reasonably suspects any delay in
entering the place will result in the concealment, death or destruction of anything at
the place that is evidence of the animal welfare offence.
Clause 7 amends section 127 (Issue of warrant) to broaden the application of
paragraph (1)(b) to an animal welfare offence (as defined in the Dictionary to the Act
and as amended by clause 17 of the Bill) as well as other offences against the Act.
Clause 8 amends section 142 (General power to seize evidence) to extend paragraph
(1)(a) to an animal welfare offence as well as other offences against the Act.
Clause 9 amends section 163 (Power to require name and address) to broaden the
application of paragraphs (1)(a) and (1)(b) to apply to an animal welfare offence as
well as other offences against the Act.
Clause 10 amends section 164 (Failure to comply with personal details requirement)
consequential to the amendment of section 163.
Clause 11 inserts new section 181A (Interim prohibition order). This new provision
allows the court to make an interim order against a person charged with an animal
welfare offence requiring that the person must not possess or purchase or otherwise
acquire any animal or stated type of animal (either generally or for trade or commerce
or another purpose). The court may make an interim prohibition order if satisfied
there are reasonable grounds for believing the person poses an unacceptable risk of
committing an animal welfare offence before the completion of the proceeding for the
alleged offence.
Subsections (4) and (5) provide that the court may make an interim order at the
court's initiative or on application by the prosecution and in the absence of the person.
However, the court must not make an order in the person's absence unless the person
has been given an opportunity to be heard.
Subsections (6) and (7) provide when an interim order takes effect and when it ends.
Clause 12 amends section 183 (Prohibition order) to clarify that a prohibition order
applies to an animal in the possession of the person at the time the order is made.
Clause 13 amends section 185 (Criteria for making disposal or prohibition order) to
require the court to consider each of the matters listed in subsection (2) and also
includes a new paragraph (e), consequential to the insertion of new section 181A,
requiring the court to consider a person's compliance or otherwise with an interim
prohibition order.
Clause 14 amends section 187 (Contravention of prohibition order unlawful) to
extend the offence to a contravention of an interim prohibition order consequential to
the insertion of new section 181A.
Page 14
Criminal Law Amendment Bill 2014
Clause 15 inserts new section 187A (Amendment or revocation of interim prohibition
order) to allow a relevant court to amend or revoke an interim prohibition order if
satisfied that there has been a substantial change in the person's circumstances since
the order was made or in all the circumstances it is reasonable to amend or revoke the
order. A person subject to an interim prohibition order may not apply to the court for
amendment or revocation before six months has passed since the making of the order.
The prosecution may make an application at any time.
Clause 16 amends section 209(5) (Liability of executive officer - particular offences
committed by corporation) to include reference to the new section 242 (Serious
animal cruelty) of the Criminal Code consistent with the reference to section 468
(Injuring animals) of the Criminal Code.
Clause 17 amends the definition of `animal welfare offence' contained in the schedule
(Dictionary) to include reference to the new section 242 (Serious animal cruelty) of
the Criminal Code. The Dictionary is further amended to insert a definition of `interim
prohibition order'.
Part 4 Amendment of Bail Act 1980
Clause 18 states this part amends the Bail Act 1980.
Clause 19 amends section 7(3) (Power of police officer to grant bail) to insert an
editor's note to subsection (3) which refers to the new section 11AA (Release of a
person only after surrender of passport) inserted by clause 21.
Clause 20 amends section 11 (Conditions of release on bail) to insert a new
subsection (4A) to require a bail granting authority to consider imposing a special
condition under subsection (2) for the surrender of a person's passport and prohibiting
the person applying for a new passport when granting bail to a person who is not an
Australian citizen or permanent resident. New subsection (10) contains definitions for
the terms "Australian citizen" and "permanent resident".
Clause 21 inserts a new section 11AA (Release of a person only after surrender of
passport) to provide that where a special condition is imposed under section 11(2) that
the person must surrender their passport, the person must be detained in custody (and
cannot be released) until the passport is surrendered.
Clause 22 amends section 20 (Undertaking as to bail) to include a new subsection
(3D) stating that if a defendant is granted bail subject to a requirement for the
surrender of their passport, the bail undertaking must include a statement that the
defendant has complied with that requirement.
Clause 23 inserts a transitional provision.
Part 5 Amendment of Criminal Code
Clause 24 states this part amends the Criminal Code.
Page 15
Criminal Law Amendment Bill 2014
Clause 25 amends section 1 (Definitions) to provide definitions that apply to the
offences contained in new Chapter 43 (Match-fixing).
Clause 26 amends section 229G (Procuring engagement in prostitution) to increase
the maximum penalty from 14 years imprisonment to 20 years imprisonment where
the procured person is a child or a person with an impairment of the mind.
Clause 27 inserts a new part 4, Chapter 25 Cruelty to animals, which contains a new
offence of serious animal cruelty. New section 242 makes it an offence to unlawfully
kill, cause serious injury or prolonged suffering to an animal with the intention of
inflicting severe pain or suffering on the animal. The new offence is a crime, carrying
a maximum penalty of seven years imprisonment. A person is relieved of criminal
responsibility if the conduct is authorised, justified or excused under the Animal Care
and Protection Act 2001 or another law, other than section 458 of the Criminal Code.
Subsection (3) defines the phrase `serious injury', borrowing in part from the
definition of grievous bodily harm as defined in section 1 of the Criminal Code.
Clause 28 amends section 328B (Additional power to convict for dangerous driving),
which provides that section 328A (Dangerous operation of a vehicle) of the Criminal
Code is a statutory alternative verdict in prescribed circumstances.
Subclause 1 amends the heading of the section to replace the reference to `driving'
with `operation of a vehicle'.
Subclause 2 amends section 328B to ensure that section 328A of the Criminal Code is
a statutory alternative verdict upon an indictment charging a person with any offence
in connection with or arising out of the operation, or interference in any way with the
operation, of a vehicle. The application of the section is widened to `vehicles' (as
defined under section 1 of the Criminal Code) and to extend its scope to include
conduct of a person who is not in fact the driver of the vehicle at the relevant time (for
example a passenger who pulls on the handbrake causing the driver to lose control of
the vehicle).
Clause 29 amends section 398 (Punishment of stealing), punishment in special cases,
item 13 (Stealing by looting) to extend the aggravated offence to include where the
offence of stealing is committed in an area that is or was, immediately before the
offence was committed, a declared area for a disaster situation under the Disaster
Management Act 2003.
The terms: `disaster situation', `disaster', `serious disruption', `event' and `declared
area', which are relevant to the new circumstance of aggravation, are defined under
the Disaster Management Act 2003.
The amendment extends item 13 (Stealing by looting) to protect the community
during in the immediate aftermath of a disaster situation. As to whether the offence is
committed in an area that was `immediately before', a declared area will depend on
the circumstances of each case, including the nature and circumstances of the
particular disaster situation.
Page 16
Criminal Law Amendment Bill 2014
Clause 30 inserts a new part 6, division 1, Chapter 43 Match-fixing.
This part introduces a number of offences that prohibit match-fixing conduct in
sporting events.
New section 443 (Definitions for chapter 43) provides relevant definitions.
The phrase `bet or make a bet' includes (a) to place, change, accept or withdraw a bet;
and (b) to cause a bet to be placed, changed, accepted or withdrawn.
The phrase `match-fixing conduct' in relation to a sporting event or the happening of
a sporting contingency, means conduct that - (a) affects, or if engaged in could
reasonably be expected to affect, the outcome of the event or the happening of the
contingency; and (b) is contrary to the standards of integrity reasonably expected
within that sport.
The phrase `match-fixing conduct' is integral to the new offences. In order to avoid
potentially capturing a legitimate act or omission that occurs in relation to an event,
such as legal play, genuine attempts to win, tactical decisions, honest errors by players
or officials, or even the types of rule breaches that give rise to a penalty, the conduct
must be contrary to the standards of integrity that an ordinary person would
reasonably expect of persons in a position to affect or influence the outcome of the
event or the happening of the contingency.
The phrase `sporting contingency' means a contingency - (a) associated with a
sporting event; and (b) on the happening of which a person may make a bet under a
law of the Commonwealth or a State. This definition captures `exotic' bets, for
example, betting on which team or player will score first in a football match.
The phrase `sporting event' means a sporting competition or activity, whether taking
place in Queensland or elsewhere, on the outcome of which a person may make a bet
under a law of the Commonwealth or a State.
New section 443A provides the offence of Engaging in match-fixing conduct. The
offence is a crime with a maximum penalty of 10 years imprisonment. This is the
primary match-fixing offence and addresses the most straight forward and obvious
example of match-fixing such as providing instructions to team players to orchestrate
pre-determined scores, an officials deliberate misapplication of the rules, interference
with the play or playing surface, or any other act or omission designed to affect or
influence the outcome of the game or the happening of the contingency. The conduct
must be engaged in for the purposes of obtaining or receiving a pecuniary benefit to
any person or causing a pecuniary detriment to another person.
This section should be read together with the evidentiary provision in new section
443G.
New section 443B provides the offence of Facilitating match-fixing conduct or
match-fixing arrangement. The offence is a crime with a maximum penalty of 10
years imprisonment. The offence captures offending behaviour where a person agrees
or offers to be involved in a match-fixing arrangement or match-fixing conduct.
Page 17
Criminal Law Amendment Bill 2014
The offence captures conduct if a person agrees or offers to:
(a) engage in the match-fixing conduct; or
(b) participate in the match-fixing arrangement; or
(c) encourages another person to:
(i) engage in the match-fixing conduct; or
(ii) participate in the match-fixing arrangement.
The conduct must be engaged in for the purposes of obtaining or receiving a
pecuniary benefit to any person or causing a pecuniary detriment to another person.
An example of offending conduct may include a football player accepting a financial
benefit for agreeing to influence who from his team will kick the first goal in the
game; the match-fixing arrangement may extend further to include other players being
advised of the arrangement in order to ensure that no other person on that team will
attempt to kick the first goal other than the nominated player.
This section should be read together with the evidentiary provision in new section
443G.
New section 443C provides the offence of Offering or giving a benefit, or causing or
threatening detriment, to engage in match-fixing conduct or match-fixing
arrangement. The offence is a crime with a maximum penalty of 10 years
imprisonment. The offence captures offending behaviour where a person seeks to
organise a match-fixing arrangement or match-fixing conduct. An example of
offending conduct may include a manager of a tennis player offering money to a
player to deliberately lose the second set of the game.
This section should be read together with the evidentiary provision in new section
443G.
New section 443D provides the offence of Using or disclosing knowledge of match-
fixing conduct or match-fixing arrangement for betting. An offence against section
443D is a crime with a maximum penalty of 10 years imprisonment. This offence
relates to betting activities where a person has knowledge of a match-fixing
arrangement or match-fixing conduct.
New section 443D(1)(a) provides an offence where a person has knowledge of a
match-fixing arrangement or match-fixing conduct and makes a bet on the sporting
event or contingency to which this knowledge relates. As the definition of bet
includes to accept a bet, this offence will also capture match-fixing conduct involving
instances where a person who is authorised to conduct betting activities (i.e. a sports
wagering licensee) has knowledge match-fixing conduct or a match-fixing
arrangement and accepts a bet on the event or contingency.
New section 443D(1)(b) provides an offence where a person has knowledge of a
match-fixing arrangement or match-fixing conduct and encourages another person to
bet on the sporting event or contingency to which this knowledge relates.
New section 443D(1)(c) provides an offence where a person (first person) has
knowledge of a match-fixing arrangement or match-fixing conduct and discloses the
information to another person (second person) who the first person knows, or ought
Page 18
Criminal Law Amendment Bill 2014
reasonably to know, would be likely to make a bet on the sporting event or
contingency to which this knowledge relates.
New section 443D targets betting activities where a person knows that a sporting
event or contingency has been fixed and uses this information. A less serious offence
is provided in section 443F relating to betting activities where a person has inside
knowledge in relation to a sporting event or contingency but this knowledge does not
relate to match-fixing conduct or a match-fixing arrangement. Clause 34 of the Bill
inserts a new section 589A (Indictment for using or disclosing knowledge of match-
fixing conduct or match-fixing arrangement for betting) which provides that the
offence contained in new section 443F is a statutory alternative to the offence
contained in section 443D.
New section 443E provides an offence of Encouraging a person not to disclose match-
fixing conduct or match-fixing arrangement. The offence is a crime with a maximum
penalty of 10 years imprisonment. The concealment of information about a match-
fixing arrangement or match-fixing conduct is specific to the listed authorities.
New section 443F provides the offence of Using or disclosing inside knowledge for
betting. An offence against section 443F is a crime with a maximum penalty of 2
years imprisonment. This is a less serious offence to that provided in section 443D as
the knowledge does not relate to match-fixing conduct or a match-fixing arrangement.
New section 443F addresses offending conduct where a person has knowledge about a
sporting event which is greater than any information provided in the public domain
which may be considered by persons who are or would be likely to bet on the sporting
event or contingency. Inside information gives a person betting on an event an unfair
advantage over others betting on the event who do not have access to such
information and strikes at the integrity of sports wagering.
Integral to the new section 443F offence is that the information is not publicly
available information and if it was publicly available, it would, or would be likely to,
influence persons betting on the sporting event or contingency. In order to avoid
criminalising information sharing that may commonly occur between persons
involved in a sporting event, the use of the information must be contrary to the
standards of integrity that an ordinary person would reasonably expect of persons in
possession of the knowledge or information.
New section 443G provides an evidentiary provision that applies to a proceeding for
an offence under chapter 43.
Clause 31 amends section 450H(1) (Licence disqualification where commission of
offence facilitated by licence or use of vehicle) to insert reference to the new offence
of serious animal cruelty inserted by clause 27.
Clause 32 amends section 450I (Forfeiture in cases of conviction for offences under
specified sections) to insert reference to the new offence of serious animal cruelty
inserted by clause 27.
Page 19
Criminal Law Amendment Bill 2014
Clause 33 amends section 564 (Form of indictment) which concerns how an offence
is to be described in an indictment. Consistent with the amendment to section 47 of
the Justices Act 1886, contained in the Bill, an amendment is made to set the position
with respect to the extent a court may rely upon a previous conviction at sentencing
where a circumstance of aggravation that is a previous conviction is not stated in the
indictment in accordance with section 564(2). The amendment provides that a
circumstance of aggravation that is a previous conviction may be relied upon for the
purposes of sentencing an offender for the offence charged in the indictment despite
that circumstance not being charged in the indictment. This is consistent with the
position under the Penalties and Sentences Act 1992.
Clause 34 inserts new section 589A (Indictment for using or disclosing knowledge of
match-fixing conduct or match-fixing arrangement for betting) to provide that the new
offence in section 443F is a statutory alternative to the offence contained in section
443D.
Clause 35 amends Chapter 68, section 678A (Application of ch 68) to retrospectively
apply the exceptions to the rules against double jeopardy. That is, Queensland's
double jeopardy exception regime under Chapter 68 is to apply to all acquittals of a
relevant offence, irrespective of when the alleged offence was committed and
irrespective of the date of the acquittal. The existing protective safeguards under
Chapter 68 continue to apply to a person acquitted of a relevant offence irrespective
of whether the acquittal occurred before or after the commencement of the Chapter.
Clause 36 inserts a new Chapter 94, which makes transitional provision for the
application of the amendments to Chapter 68 of the Criminal Code and section 564 of
the Criminal Code.
New section 733 (Extended application of ch 68) makes transitional provision for the
retrospective application of the double jeopardy exception regime under Chapter 68.
The provision makes it clear that Chapter 68 applies to a person acquitted of a
relevant offence, whether the person has been acquitted of the relevant offence before,
on or after the commencement of Chapter 68 on 25 October 2007 or before, on or
after the commencement of clause 35; and irrespective of when the circumstances
supporting an order for a retrial arose.
To remove any doubt, the double jeopardy exception regime under Chapter 68 is to
apply to any person acquitted of a relevant offence.
New section 734 (Application of 564) is a transitional provision in relation to the
amendment to section 564 to provide that the amendment applies to the sentencing of
an offender for an offence, regardless of whether the proceeding for the offence was
started before, on or after the commencement of the transitional provision.
Part 6 Amendment of Criminal Proceeds Confiscation Act
2002
Clause 37 states this part amends the Criminal Proceeds Confiscation Act 2002.
Page 20
Criminal Law Amendment Bill 2014
Clause 38 amends section 237 (Charge on property subject to filed interstate
restraining order) to remove the requirement that interstate restraining orders and
pecuniary penalty orders be based on a criminal charge or conviction.
Part 7 Amendment of Dangerous Prisoners (Sexual
Offenders) Act 2003
Clause 39 states this part amends the Dangerous Prisoners (Sexual Offenders) Act
2003.
Clause 40 replaces section 43AA (Contravention of relevant order), which makes it
an offence for a released prisoner to contravene a relevant order without a reasonable
excuse.
New section 43AA(1) provides for the offence simpliciter. The maximum penalty is
unchanged (that is, two years imprisonment). However, the offence simpliciter is
amended to designate it as a misdemeanour and therefore it is no longer a simple
offence but rather an indictable offence.
New section 43AA(2) provides for a new circumstance of aggravation where the
released prisoner contravenes the relevant order without a reasonable excuse by
removing or tampering with a stated device (as defined in the section itself) for the
purpose of preventing the location of the released prisoner to be monitored. The
aggravated offence is a crime and punishable by a maximum penalty of five years
imprisonment with a mandatory minimum period of one year imprisonment to be
served wholly in a corrective services facility (as defined in the section itself).
Clause 41 omits existing section 43AC (Proceedings for offences) and inserts new
sections 43AC to 43AI, which sets out a comprehensive regime for the indictable
offences under section 43AA, as amended by clause 40, to be dealt with summarily;
modelled on the approach under the Criminal Code to indictable offences dealt with
summarily. The following is provided:
- new section 43AC provides that an offence against section 43AA must be
heard and decided summarily upon prosecution election (subject to new section
43AE);
- new section 43AD provides for the constitution of a Magistrates Court dealing
with a section 43AA offence summarily;
- new section 43AE sets out when the Magistrates Court must abstain from
jurisdiction;
- new section 43AF ensures that the charge may be heard and decided within the
district in which the accused person is arrested on the charge or served with the
summons for the charge;
- new section 43AG addresses the issue of the statutory timeframes within which
an offence must be heard and decided summarily and ensures that these time
limitations do not apply to an offence dealt with summarily under new section
43AC;
Page 21
Criminal Law Amendment Bill 2014
- new section 43AH provides that the maximum penalty that may be imposed on
a summary conviction for an indictable offence is three years imprisonment or
the maximum prescribed for the offence, whichever is the lesser. In no case
may a person be punished more than if the offence had been dealt with on
indictment. If dealt with summarily, the mandatory minimum one year
imprisonment under section 43AA(2) must be applied and cannot be reduced
or mitigated; and
- new section 43AI makes provision for appeals against a Magistrate's decision
to decide a matter summarily or to sentence summarily.
Clause 42 inserts new part 9, which makes transitional provision for the application
of amended section 43AA and the amended definition of `serious sexual offence'.
New section 64 provides that while the amended section 43AA (Contravention of a
relevant order) applies to an existing supervision or interim supervision order made
before commencement of the Bill, the new and increased penalty will only apply
where the contravention occurs post commencement of the Bill. Otherwise, the
previous section 43AA applies, or continues to apply, in relation to any contravention
of a relevant order that happened before commencement.
New section 65 provides that the amended definition of `serious sexual offence'
applies retrospectively. This approach is consistent with the approach taken to the
application of the Dangerous Prisoners (Sexual Offenders) Act 2003 when enacted.
Clause 43 amends the schedule (Dictionary) with regards to the definition of `serious
sexual offence' to ensure that the Dangerous Prisoners (Sexual Offenders) Act 2003
applies to an offence of a sexual nature, whether committed in or outside of
Queensland, against a person, including a fictitious person represented to the prisoner
as a real person, whom the prisoner believed to be a child under the age of 16 years.
The amendment addresses the decision in Dodge v Attorney-General for the State of
Queensland [2012] QCA 280 which held that the Dangerous Prisoners (Sexual
Offenders) Act 2003 did not extend to section 218A(1)(b) of the Criminal Code where
no actual child was involved in the offence (for example an adult the offender
believed to be a child under 16 years).
Part 8 Amendment of Director of Public Prosecutions Act
1984
Clause 44 states this part amends the Director of Public Prosecutions Act 1984.
Clause 45 replaces section 13 (Police assistance for director). The new section 13 will
allow the Director of Public Prosecutions to ask, in addition to the Police
Commissioner, the Chief Executive administering the Animal Care and Protection
Act 2001 for the assistance of an inspector if a matter arises that requires further
investigation in relation to a criminal proceeding under consideration or conducted by
the Director. The amendment complements the insertion of new section 242 (Serious
animal cruelty) into the Criminal Code.
Page 22
Criminal Law Amendment Bill 2014
Part 9 Amendment of Drugs Misuse Act 1986
Clause 46 states this part amends the Drugs Misuse Act 1986.
Clause 47 amends section 134A (Recommendation of Minister) to insert a new
subsection (2) which allows the Minister to include a substance in the Drugs Misuse
Regulation 1987, without a full consideration of the matters listed in subsection (1),
where inclusion of the substance is required as a matter of urgency.
Part 10 Amendment of Evidence Act 1977
Clause 48 states this part amends the Evidence Act 1977.
Clause 49 amends section 39E (State courts may take evidence and submissions from
outside State) to insert a new editor's note after subsection (1) to refer to the new part
3A, division 3A.
Clause 50 inserts new part 3A, division 3A (Use of audio visual links or audio links
for expert witnesses) to facilitate a presumption in favour of the use of audio visual
links or audio links for expert witnesses; new sections 39PA, 39PB and 39PC are
provided.
New section 39PB establishes a rebuttable presumption in favour of expert witnesses
providing their testimony in a criminal or civil proceeding via audio link or audio
visual link.
Subsection (3) provides that the court may direct the witness to appear in person if the
court is satisfied that it is in the interests of justice to give such a direction.
Subsection (4) sets out matters which the court may have regard to in considering
whether it is in the interests of justice to direct that the expert witness give oral
evidence in court other than by audio visual link or audio link. Subsection (5) clarifies
that subsection (4) is not intended to limit the court in the matters it may have regard
to when exercising its discretion under subsection (3).
Subsection (6) provides that the court may vary or revoke a direction made under
section 39PB at any time either on its own initiative or an application of a party to a
proceeding.
Subsection (7) provides that the court must not give the evidence of an expert witness
any more or less weight or draw any adverse inferences against a party to the
proceeding, only because the expert witness gave their evidence by way of audio
visual or audio link.
New section 39PC requires the court to direct the jury as outlined in subsection (2),
where an expert witness provides their evidence via audio link or audio visual link.
Clause 51 amends section 39Q (Application of div 4) to include reference to the new
division 3A.
Page 23
Criminal Law Amendment Bill 2014
Clause 52 amends section 39R (Queensland courts may take evidence and
submissions from external locations) to include an editor's note.
Clause 53 inserts new section 55A (Proof of disaster situation under Disaster
Management Act 2003) providing an evidentiary aid to facilitate proof in a proceeding
of the making of a declaration of a disaster situation under the Disaster Management
Act 2003. For example, in the case of the new circumstance of aggravation inserted
into the offence of Stealing by looting under clause 29.
Clause 54 replaces section 95 (Admissibility of statements produced by computers).
The new section 95 (Admissibility of statements in documents or things produced by
processes or devices) incorporates a presumption in relation to the authenticity and
reliability of evidence produced by application of a device or process.
Subsection (3) provides that an evidentiary certificate may be used to establish that
the device or process is of a kind that, if properly used, does what it is claimed to do.
The certificate must be signed by a responsible person as defined in subsection (7)
and a copy must be provided to all other parties to the proceeding. A party may, with
written notice, challenge a matter stated in the certificate. Subsection (4) provides that
it is an offence for a person who signs or purports to sign a certificate if a matter
stated in the certificate is false and the statement is material in a proceeding.
Part 11 Amendment of Justices Act 1886
Clause 55 states this part amends the Justices Act 1886.
Clause 56 amends section 4 (Definitions) to insert a definition for a RSPCA
inspector.
Clause 57 amends section 39 (Power of court to order delivery of certain property) to
provide that, for the section, and in relation to a complaint of an offence against
section 242 or 468 of the Criminal Code, the term `public officer' includes an RSPCA
inspector.
Clause 58 amends section 47 (What is sufficient description of offence) which
concerns how an offence is to be described in a charge before a Magistrates Court.
Section 47(5) requires a prior conviction that is a circumstance of aggravation to a
charge to be set out in a document separate to the charge and served on the defendant.
This informs the defendant that the prosecution is intending to rely upon a prior
conviction to place the defendant into a higher category of liability. Section 47(2)
sets out the reliance a Magistrates Court may place on a criminal history where the
defendant has been served with that history but fails to appear before the court.
The clause provides that where a notice of intention to allege a prior conviction is not
served in accordance with section 47(5) (as amended by the Bill), then a conviction
which would have been the subject of such a notice may not be relied upon to put the
defendant into a higher category of penalty (that is, make the defendant liable to a
higher maximum penalty for an aggravated form of the offence), but may nevertheless
be taken into account by the court for general sentencing purposes, in accordance with
the position under the Penalties and Sentences Act 1992. The amendment reinstates
Page 24
Criminal Law Amendment Bill 2014
the understanding of the position prior to the judgment in Miers v Blewett [2013]
QCA 23. This is contained in subsections (7) and (8). A transitional provision is
inserted by clause 63 of the Bill in relation to these sub-sections.
The clause also amends section 47(5) and replaces section 47(6) to enable a notice of
intention to allege a prior conviction to be provided to the defendant with the
complaint, or on, or before, the day appointed for the defendant's appearance. Where
the notice is given on the day of court, the court may, if the court is satisfied it is in
the interests of justice to do so, adjourn the hearing to allow the defendant to consider
the notice. As a procedural law, the provisions will apply to proceedings as they are
heard from the day of commencement of the amendments.
The clause also amends section 47(3) and (3A) to change the requirements for service
and documenting of service of a criminal history served on a defendant under section
47(2) or a notice served on a defendant under section 47(5)(a) or (b). At present the
manner in which documents under section 47 are served and service is documented is
dependant upon the manner in which the proceeding was commenced, that is, whether
by notice to appear or otherwise. The amendments streamline the manner of service
and proof of service of documents under section 47 so that regardless of the manner
by which the proceeding is commenced, service and proof of service is as for a notice
to appear under the Police Powers and Responsibilities Act 2000. Under that Act, a
notice to appear is served in accordance with section 382(3) and (4) and service is
documented in accordance with section 389(2). As a procedural law, the provisions
will apply to proceedings as they are heard from the day of commencement of the
amendments.
The clause also amends section 47(2) to replace `summons' with `complaint' for
consistency of terminology within the section. As a procedural law, the provisions
will apply to proceedings as they are heard from the day of commencement of the
amendments.
Clause 59 amends section 142 (Proceedings in absence of defendant) to ensure that
notices under that section can be provided electronically if section 146A (Proceeding
at hearing on defendant's confession in absentia) also applies to the proceeding.
Clause 60 amends section 142A (Permissible procedure in absence of defendant in
certain cases) to ensure that notices under that section can be provided electronically
if section 146A (Proceeding at hearing on defendant's confession in absentia) also
applies to the proceeding.
Clause 61 amends section 146A (Proceeding at hearing on defendant's confession in
absentia) to better facilitate the implementation of a new system for electronic pleas
of guilty in the Magistrates Courts.
Section 146A allows a defendant (or lawyer acting on the defendant's behalf) to give
the clerk of the court notification in writing that the defendant wishes to plead guilty
without appearing in person. This section applies if a defendant is required to appear
to answer a complaint for a simple offence or breach of duty. It does not apply to
indictable offences. The amendment to paragraph 146A(1)(a) updates terminology in
relation to the exclusion of indictable offences.
Page 25
Criminal Law Amendment Bill 2014
The amendments to subsection (2) and (2A) allow the court to hear and determine the
case "on the papers" by providing that the complainant may also consent to the matter
proceeding in their absence. Where the complainant does not appear in person the
complainant must provide the justices with written material in relation to the facts
relating to the offence.
New subsections (2D) and (3C) to (3G) allow notices (including notice of an
adjournment, a conviction or order) to be provided to parties electronically.
New subsections (2B) and (2C) allow the clerk of the court to bring forward the time
appointed for the hearing of the case provided this is not less than seven business days
after the date of the notice of the change. Notice of such change must be provided to
the parties as soon as practicable.
Clause 62 amends section 222 (Appeal to a single judge) to include a new subsection
(2A) which provides standing to the Attorney-General to appeal sentences for simple
offences disposed of summarily. The one month time limit which applies to all other
parties will apply to the Attorney-General.
Clause 63 inserts a new part 11, division 7 to provide a transitional provision. New
section 281 (Application of s 47) is a transitional provision in relation to the
amendment to insert new subsections (7) and (8) into section 47 to provide that the
amendments apply to the sentencing of an offender for an offence whether the
proceeding for the offence was started before, on or after the commencement of the
transitional provision.
Part 12 Amendment of Penalties and Sentences Act 1992
Clause 64 states that this part amends the Penalties and Sentences Act 1992.
Clause 65 amends the heading of section 13A consequential to the insertion of new
section 13B by clause 66 by changing the heading to `Cooperation with law
enforcement authorities to be taken into account - undertaking to cooperate'.
Clause 66 inserts a new section 13B (Cooperation with law enforcement authorities to
be taken into account - cooperation given) to provide a regime aimed at ensuring the
protection of informants, and confidentiality of the information provided, who
significantly assist law enforcement agencies with their investigations but fall outside
the ambit of existing section 13A as the informant is not willing to give the type of
undertaking required under section 13A. For example, a person whose cooperation is
reflected in an affidavit by a law enforcement agency (colloquially known as a `letter
of comfort') tendered to the court in support of reducing the otherwise appropriate
penalty.
Section 13B is modelled on section 13A and is intended to complement the operation
of section 13A by applying to offenders who have significantly assisted law
enforcement agencies with their investigation, beyond simply admitting their own
criminality, but who are not prepared to give the type of undertaking required by
section 13A. Therefore, section 13B applies to an informant to whom section 13A
Page 26
Criminal Law Amendment Bill 2014
does not apply. Under section 13B, the penalty imposed on the offender must be
stated in open court.
Consistent with the approach under section 13A, new sections 13B(9) and (10)
provide the sentencing court with the discretion to make an order prohibiting
publication of all or part of the proceeding or the name and address of any witness;
and in deciding whether to make such an order the court may have regard to: the
safety of any person; the extent to which the detection of offences of a similar nature
may be affected; and the need to guarantee the confidentiality of information given by
an informer.
Further, consistent with the approach under section 13A, new section 13B(11) makes
it an offence to contravene an order prohibiting publication, which is punishable by up
to five years imprisonment.
Clause 67 makes a corresponding amendment to section 187 (Disqualification from
holding Queensland driver licence) to that made under clause 28 regarding section
328B of the Criminal Code. The amendment widens the scope of the court's
discretion to impose a driver licence disqualification upon an offender who was not
the driver of the motor vehicle at the relevant time (that is, an offender convicted of
an offence in connection with or arising out of the operation, or the interference in any
way with the operation, of a motor vehicle).
Clause 68 inserts a new part 14, division 9, which makes transitional provision for
the application of new section 13B inserted under clause 66.
New section 234 ensures that section 13B applies to the sentencing of an offender for
an offence on or after commencement of the provision, even if the proceedings for the
offence started before commencement or some or all of the offender's cooperation
with a law enforcement agency occurred before commencement. This retrospective
application of new section 13B is to the benefit of the offender.
Clause 69 inserts the Criminal Code offence section 229G Procuring engagement in
prostitution into Schedule 1 (Serious violent offences) if section 229G(2) applies.
Part 13 Amendment of Youth Justice Act 1992
Clause 70 states this part amends the Youth Justice Act 1992.
Clause 71 inserts a new section 151A (Permitted use and disclosure of information for
pre-sentence report) permitting the chief executive to make information about a child
obtained under any Act available to a third party to assist the chief executive in
complying with the obligation under existing section 151 to prepare a
pre-sentence report ordered by a court. Where the Childrens Court orders a
pre-sentence report under section 151 in relation to a child found guilty of a sexual
offence, the court commonly requests that the report contain a specialist forensic
psychological report in relation to the child. To assist in the preparation of the
specialist report, child protection and other sensitive information about the child in the
department's possession is routinely provided to an appropriate external specialist
body engaged to prepare the report.
Page 27
Criminal Law Amendment Bill 2014
In the context of the opening of the Childrens Court by recent amendments to the
Childrens Court Act 1992, the current amendment removes all doubt that the chief
executive is not prohibited by the confidentiality provisions of the Child Protection
Act 1999 or other relevant legislation from continuing to provide this information to
an appropriate specialist body.
Clause 72 inserts a new section 153A (Permitted use and disclosure of information in
a pre-sentence report) to provide that, subject to the court's power under section
153(3) to limit the disclosure of a pre-sentence report, nothing in that Act or another
Act restricts the use or disclosure of information contained in a
pre-sentence report or given in evidence to the court about a matter in a pre-sentence
report. This removes all doubt, in the context of the opening of the Childrens Court,
that the inclusion of child protection and other sensitive information in a pre-sentence
report and its use in a sentencing hearing is not prohibited by the confidentiality
provisions of the Child Protection Act 1999 or other relevant legislation.
Subsection 153A(3) makes clear, however, that the existing prohibition under the
Child Protection Act 1999 on the unauthorised publication of child protection
information remains undisturbed, including where that information has been disclosed
to an open court through a pre-sentence report.
Clause 73 amends section 176B (Sentence orders - recidivist vehicle offences) which
provides a head of power for the Childrens Court to make a boot camp (vehicle
offences) order and requires the court to have received and considered a pre-sentence
report before making the order--to provide that section applies if a court is required
under section 206A(1) to make the order. This makes clear that the head of power
under section 176B to make a boot camp (vehicle offences) order operates subject to
the detailed conditions for the order's making which are prescribed in section 206A.
Clause 74 inserts a new section 282BA (Detention centre employees may provide
services at boot camp centres) to permit youth detention centre officers to provide
services to maintain good order and discipline at a boot camp centre. Youth detention
centre officers are specially trained and experienced in working with young offenders
and are able to appropriately employ a range of practices such as use of force,
restraint, separation and personal searches.
Queensland Corrective Services officers are currently engaged in supervising
offenders at the Lincoln Springs centre. Under these officers' supervision, no
offenders have absconded from the centre and there have been no serious issues of
self-harm or injury. It has been identified, however, that the proposed additional
measure is required to properly protect the safety and security of staff and offenders
and prevent damage to property at the Lincoln Springs centre.
While the services to be provided by youth detention centre officers will be required
by section 282BA(1) to be provided under an arrangement between the chief
executive and the boot camp centre provider, under section 282BA(3) an officer
providing these services will remain subject to the direction and control of the chief
executive.
Page 28
Criminal Law Amendment Bill 2014
Section 282BA(2) restricts the practices which a youth detention centre officer may
employ in maintaining good order and discipline at a boot camp centre to those
prescribed by regulation. Clear guidelines around the use of practices such as use of
force, restraint, separation and personal searches will be prescribed in the Youth
Justice Regulation 2003, as well as the obligation to record all instances of their use.
Page 29