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Crimes Legislation Amendment (Food
and Drink Spiking) Bill 2008
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Clause 1 sets out the purpose of the Bill which is to:
� amend the Crimes Act 1958 to extend the offence of
administering a drug with the intention of rendering a
person incapable of providing resistance to an act of
sexual penetration to also apply to an indecent act;
� amend the Summary Offences Act 1966 to create a
new offence for the spiking of another person's food or
drink.
Clause 2 provides for the commencement of the Bill, which is the day after
the day on which it receives Royal Assent.
Clause 3 inserts a new subsection into section 53 of the Crimes Act 1958
to extend the operation of that existing administration of drug
offence to instances where a person administers a drug with the
intention of making another person incapable of resisting an
indecent act. The current provision only covers instances where
a person has administered a drug with the intention of rendering
another person incapable of resisting an act of sexual penetration.
This amendment was recommended by the Model Criminal Law
Officers Code (MCLOC) in its report for the Standing Committee
of Attorneys-General (SCAG) on drink spiking.
Section 53 is a preparatory offence. As such, the current
maximum of 10 years is significantly lower than the maximum
applicable to the completed offences to which section 53 relates
(eg rape). To maintain these relativities (both between
preparatory and completed offences, and between sexual
penetration and indecent acts), the new subsection carries a
maximum penalty of 5 years' imprisonment.
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Clause 4 inserts a new Division 4B into the Summary Offences Act 1966
(new section 41H) to create a food or drink spiking offence.
This offence was recommended by MCLOC (and subsequently
endorsed by SCAG) in its report on drink spiking. It is consistent
with MCLOC's recommendation, although adapted to accord
with Victorian drafting conventions. MCLOC considered that
existing assault provisions, together with section 53 of the
Crimes Act 1958, adequately addressed the more serious
outcomes of drink spiking but that there was a gap at the less
serious end of this offending spectrum where no actual harm
necessarily results from the spiking behaviour.
The new offence is therefore preparatory in nature. It does not
require the food or drink to actually be consumed for the offence
to be made out.
It has three elements. As such, a person will be guilty of the
offence (punishable by a maximum of 2 years' imprisonment)
if he or she:
� gives another person or causes another person (the
victim) to be given or to consume food or drink that
contains an intoxicating substance; and
� knows that the victim is not aware, or is reckless
as to whether the victim is aware, that the food or
drink contains the intoxicating substance; or
� knows that the victim is not aware, or is reckless
as to whether the victim is aware, that the food or
drink contains more of an intoxicating substance
than the victim would reasonably expect it to
contain; and
� intends the victim to be harmed by the consumption of
that food or drink.
The terms give, harm, impair and intoxicating substance are all
defined in the new section.
Clause 5 provides for the automatic repeal of this amending Bill on the
first anniversary of its commencement. The repeal of this Bill
does not affect in any way the operation of the amendments made
by it (see section 51(1) of the Interpretation of Legislation Act
1984).
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