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Justice Legislation Miscellaneous
Amendment Bill 2018
Amended Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1--Preliminary
Clause 1 sets out the purposes of the Bill. The Bill--
• amends the Children, Youth and Families Act 2005
in relation to the sentencing of certain young offenders
by the Supreme Court or the County Court; and
• makes various amendments to the Coroners Act 2008
and a consequential amendment to the Births, Deaths
and Marriages Registration Act 1996; and
• amends the Crimes Act 1958 in relation to Aboriginal
persons taken into custody and forensic procedure
orders; and
• amends the Criminal Procedure Act 2009 in relation
to witnesses, recorded evidence, indictable offences that
may be heard and determined summarily and the DPP's
right of appeal; and
• amends the Domestic Building Contracts Act 1995 in
relation to referred domestic building work disputes and
publication of directions; and
• amends the Estate Agents Act 1980 in relation to
rebate statements and to make minor technical
amendments; and
581350 1 BILL LA AMENDED 30/7/2018
• amends the Evidence Act 2008 to require that improper
questions be disallowed; and
• amends the Family Violence Protection Act 2008
in relation to the relationship of orders with certain
conditions under that Act with certain orders under
the Sentencing Act 1991; and
• amends the Honorary Justices Act 2014 in relation to
the use of the titles "JP (Retired)" and "BJ (Retired)";
and
• amends the Personal Safety Intervention Orders
Act 2010 in relation to the relationship of orders within
certain conditions under that Act with certain orders
under the Sentencing Act 1991; and
• amends the Retirement Villages Act 1986 to
provide for making regulations prescribing different
infringement penalties for different classes of persons;
and
• amends the Rooming House Operators Act 2016
in relation to licence disqualification criteria and other
rooming house operator provisions; and
• makes various amendments to the Sentencing Act 1991
and consequential amendments to the Crimes Act 1958.
Clause 2 provides for commencement of the Bill.
Subclause (1) provides that Part 1 comes into operation on the
day on which the Bill receives the Royal Assent.
Subclause (2) provides that clauses 73(2), 83 and 84 and Part 15
come into operation on the day after the day on which the Bill
receives the Royal Assent.
Subclause (3) provides that Division 1 of Part 7 is taken to
have come into operation on 9 June 2018.
Subclause (4) provides that, subject to subclause (5), the
remaining provisions of the Bill come into operation on a
day or days to be proclaimed.
Subclause (5) provides that if a provision of the Bill does not
come into operation before 1 October 2019, it comes into
operation on that day.
2
Part 2--Amendment of Children, Youth and Families Act 2005
Clause 3 inserts new section 586(2) into the Children, Youth and
Families Act 2005, which provides for higher courts, when
sentencing an offender who was 16 or 17 years old at the time
of offending, to have regard to the requirement that an adult
offender being sentenced for the same offence would be subject
to a specified minimum term of imprisonment or non-parole
period, as an additional sentencing factor. The additional
sentencing factor is intended to ensure that courts have regard
to the gravity of such offences. The amendment will not affect
judicial sentencing discretion or the principle that children
should only be detained as a last resort.
Clause 4 provides for the additional sentencing factor that is set out in new
section 586(2) of the Children, Youth and Families Act 2005 to
apply to an offence committed on or after the commencement of
that section.
Part 3--Amendment of Coroners Act 2008
and consequential amendments
Division 1--Coroners Act 2008
Clause 5 inserts a new section 4(1A) in the Coroners Act 2008, which
provides that if a coroner makes a determination under new
section 16(1A), that death is not a reportable death for the
purposes of the Coroners Act 2008 on and from that
determination.
The amendments in clauses 5, 6, 7, 10 and 14 all relate to
what is a reportable death.
Clause 6 amends section 16 of the Coroners Act 2008 regarding when a
death is not a reportable death.
Under section 4 of the Coroners Act 2008, in order for a death to
be a reportable death, it must (amongst other matters) be a death
specified in section 4(2) of the Coroners Act 2008, namely--
(a) a death that appears to have been unexpected, unnatural
or violent or to have resulted, directly or indirectly, from
an accident or injury; or
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(b) a death that occurs--
(i) during a medical procedure; or
(ii) following a medical procedure where the death
is or may be causally related to the medical
procedure--
and a registered medical practitioner would not,
immediately before the procedure was undertaken,
have reasonably expected the death; or
(c) the death of a person who immediately before death
was a person placed in custody or care; or
(d) the death of a person who immediately before death
was a patient within the meaning of the Mental Health
Act 2014; or
(e) the death of a person under the control, care or custody
of the Secretary to the Department of Justice or a police
officer; or
(f) the death of a person who is subject to a non-custodial
supervision order under section 26 or 38ZH of the
Crimes (Mental Impairment and Unfitness to be
Tried) Act 1997; or
(g) the death of a person whose identity is unknown; or
(h) a death that occurs in Victoria if a notice under
section 37(1) of the Births, Deaths and Marriages
Registration Act 1996 has not been signed and is not
likely to be signed; or
(i) a death that occurs at a place outside Victoria if the
cause of death is not certified by a person who, under
the law in force in that place, is authorised to certify
that death and the cause of death is not likely to be
certified by a person who is authorised to certify in
that place; or
(j) a death--
(i) of a prescribed class of person;
(ii) that occurs in prescribed circumstances.
4
Section 37 of the Births, Deaths and Marriages Registration
Act 1996 (BDMR Act) requires a registered medical practitioner,
in certain circumstances, to provide notice to the Registrar of
Births, Deaths and Marriages (Registrar) of a death, provided
the death is not a reportable or reviewable death.
If a death in Victoria is not a death specified in paragraphs (a)
to (g) or (j) of section 4(2) of the Coroners Act 2008--
• a registered medical practitioner may sign a notice
under section 37(1) of the BDMR Act (37(1) Notice);
and
• provided the 37(1) Notice has been signed, the death
is not a reportable death and it does not need to be
reported to the coroner.
However, if no doctor is willing or available to sign a 37(1)
Notice, for example if there is no treating doctor, or if the treating
doctor is unsure about whether the death is a reportable death,
then, pursuant to section 4(2)(h) of the Coroners Act 2008,
the death is a reportable death, which must be reported to the
coroner. The same issue arises in relation to section 4(2)(i) of
the Coroners Act 2008, which deals with a death that occurs
outside Victoria where the cause of death is not certified and is
not likely to be certified in the manner outlined in section 4(2)(i).
The coroner therefore investigates 2 types of reportable deaths in
Victoria--
• deaths specified in paragraphs (a) to (g) or (j) of
section 4(2) of the Coroners Act 2008; and
• deaths where a registered medical practitioner has
not signed and is not likely to sign a 37(1) Notice
(or for deaths that occur outside Victoria, the relevant
certification has not occurred and is unlikely to occur).
If a registered medical practitioner is not willing or available
to sign a 37(1) Notice in relation to a death in Victoria, then it
is appropriate for the coroner to assess whether the death is a
death specified in paragraphs (a) to (g) or (j) of section 4(2) of
the Coroners Act 2008. However, if the coroner determines
that the death is not a death specified in paragraphs (a) to (g)
or (j) of section 4(2) of the Coroners Act 2008, there is no
longer a need for the death to be investigated by a coroner.
5
Subclause (1) inserts new section 16(1A) into the Coroners
Act 2008, which provides that a coroner may determine that a
death described in section 4(2)(h) or (i) is not a reportable death
if the coroner is satisfied the death is not a death described in
section 4(2)(a), (b), (c), (d), (e), (f), (g) or (j).
The new section 4(1A) (which is inserted by clause 5) provides
that if a determination is made under section 16(1A), the death is
not a reportable death for the purposes of the Coroners Act 2008
on and from that determination.
In accordance with section 16(3), if a coroner determines that
a death is not a reportable death under section 16(1) or (1A),
the coroner must discontinue the investigation into the death.
Subclause (2) amends section 16(2) of the Coroners Act 2008
to include a reference to new section 16(1A). This means that
if the coroner makes a determination under section 16(1A), the
coroner must give written notice of the coroner's determination
to the person who reported the death.
Subclause (3) inserts a new section 16(6) in the Coroners
Act 2008. New section 16(6) provides that if a coroner
determines under section 16(1) or (1A) that a death is not
reportable, the principal registrar of the Coroners Court must
notify, without delay, the Registrar of Births, Deaths and
Marriages, of the prescribed particulars. These particulars
will be prescribed in regulations under the Act.
Clause 7 amends section 17 of the Coroners Act 2008, which provides
for a stream-lined process to investigate certain reportable
natural cause deaths in a manner that does not require formal
findings under section 67.
Subclause (1) replaces the words "Subject to subsection (3)"
in section 17(1) with the word "A". This amendment reflects
that section 17(3) is a redundant provision that will be repealed
by subclause (5).
Subclauses (2), (3) and (4), together, result in section 17
providing that a coroner is not required to continue an
investigation into a reportable death if--
• the coroner determines that other than the fact that the
death was unexpected, it is not a death referred to in
section 4(2)(a) (i.e. the death does not appear to have
6
been an unnatural or violent death or to have resulted,
directly or indirectly, from an accident or injury); and
• the coroner determines that the death was not a death
referred to in section 4(2)(b), (c), (d), (e), (f), (g) or (j);
and
• a medical investigator conducts a medical examination
on the deceased person and provides a report to the
coroner that includes an opinion that the death was due
to natural causes; and
• the coroner determines that the death is not a reviewable
death.
The amendment to section 17(1) reflects that--
• if the death were a reportable death, the coroner
would be expected to make a determination under
section 16(1) or (1A); and
• since section 17 is meant to relate to reportable deaths,
there would not normally be a 37(1) Notice signed
by a registered medical practitioner (or certification
of the death in the manner outlined in section 4(2)(i))
in relation to such deaths.
The effect of the amendment is to clarify that section 17 can
apply, despite the absence of a 37(1) Notice or certification
of the death in the manner outlined in section 4(2)(i).
Subclause (5) repeals section 17(3). Section 17(3)--
• currently provides that section 17 does not apply to a
reportable death of a person who, immediately before
death, was a person placed in custody or care; and
• is misleading, because it wrongly implies that, but
for section 17(3), the coroner could, under section 17
of the Coroners Act 2008, cease an investigation
into a reportable death of a person who, immediately
before death, was a person placed in custody or care.
However, such a death is covered by section 4(2)(c)
and, even after the repeal of section 17(3), a coroner
could not cease the investigation of such a death under
section 17.
7
Clause 8 inserts a new section 76A in the Coroners Act 2008.
The new section 76A(1) provides that the people referred to
in section 76A(1) may apply to the Coroners Court for the
wording of a coroner's decision or a decision of the Court to
be amended.
Interested party, which is used in new subsections (1)
and (2), and senior next of kin are defined in section 3(1)
of the Coroners Act 2008. New section 17(1)(b) and (2)(c)
clarifies that the reference to interested party is confined to
an interested party in relation to an inquest in respect of the
death.
The section strikes a balance between the need for finality
in coronial decisions and the ability to make changes that are
appropriate in the circumstances.
The finality of coronial decisions is supported by--
• section 76A(1) limiting who can make an application
to the Coroners Court under section 76A(1);
• providing that the application to the Coroners Court
needs to be made within 3 months of the decision; and
• providing that the Coroners Court needs to be satisfied
that--
• the amendment would not be inconsistent with a
finding under section 67(1);
• the amendment does not require the re-opening
of the investigation;
• the amendment does not appear to be prejudicial
to a person (other than the applicant) who is an
interested party in relation to an inquest in
respect of the death; and
• it is otherwise appropriate to make the
amendment.
The requirement that the amended wording not appear to be
prejudicial to interested parties is intended to prevent, for
example, the insertion into the decision of adverse comments
against an interested party (who is not applying for the
amendment), or the removal of exculpatory comments about
such a person.
8
If a proposed amendment to the wording of a decision involved
the insertion of adverse comments against a person who is not
an interested party, the application could be dismissed on the
grounds that the change is not "otherwise appropriate in all the
circumstances".
The consideration by the Coroners Court of an application
made under new section 76A(1) would, consistent with all
other decisions of the Coroners Court, need to comply with
the requirements of procedural fairness.
Clause 9 amends section 77 of the Coroners Act 2008, to provide for
the findings of coronial investigations (including investigations
under previous Coroners Acts) to be reviewed by the Coroners
Court in certain circumstances.
The amendments provide that the Coroners Court may, if
satisfied that there are new facts and circumstances that
make it appropriate to do so, order that--
• some or all of the findings of a coroner following an
investigation (whether or not an inquest has been held)
be set aside without re-opening the investigation; or
• some or all of the findings of a coroner following an
investigation (whether or not an inquest has been held)
be set aside and the investigation be re-opened.
The new section 77(3) of the Coroners Act 2008, read with
section 3(1) and Part 6 of that Act, mean that, for the purposes
of section 77--
• the findings of a coroner that may be set aside under
section 77 include--
• findings of a coroner made under the Coroners
Act 1958 or the Coroners Act 1985; and
• findings of a coroner made under section 67
or 68 of the Coroners Act 2008;
• investigations that may be re-opened under section 77
include--
• an investigation that occurred under the
Coroners Act 1958 or the Coroners Act 1985;
and
9
• an investigation that occurred under the
Coroners Act 2008;
• the reference to "inquest" in section 77 includes--
• an inquest that occurred under the Coroners
Act 1958 or the Coroners Act 1985; and
• an inquest that occurred under the Coroners
Act 2008.
New section 77(4) provides that, if the Coroners Court orders
under new section 77(2)(b) that some or all of the findings
be set aside and the investigation re-opened, the investigation
must be conducted as an investigation under the Coroners
Act 2008 (even if the initial investigation was under the
Coroners Act 1958 or the Coroners Act 1985). The re-opened
investigation would therefore be conducted under the Coroners
Act 2008 and the coroner would need to make findings under
section 67 or 68 of the Coroners Act 2008 (as the case may be).
Under new section 77(5), unless one of the specified
circumstances set out in new section 77(6) (below) applies,
a person must not apply for an order under section 77(1) if
their application is based on the same, or substantially the
same, grounds or evidence as an application (which was
made by that person or any other person) to the--
• Supreme Court under section 10 of the Coroners
Act 1958, and the Supreme Court in that instance
refused to make an order under that section; or
• Supreme Court under section 59 of the Coroners
Act 1985 and the Supreme Court in that instance
refused to make an order under that section; or
• State Coroner under section 59A of the Coroners
Act 1985, and the State Coroner in that instance
refused to make an order under that section; or
• Coroners Court under section 77 of the Coroners
Act 2008, and the Coroners Court in that instance
refused to make an order under that section.
10
The new section 77(6) in the Coroners Act 2008, provides
that, for the purposes of section 77(5), the exceptions
(i.e. "specified circumstances") referred to in section 77(5)
are--
• the Supreme Court refused to make an order under
section 10 of the Coroners Act 1958, because
section 10 was repealed at the time the application
was made; or
• the Supreme Court refused to make an order under
section 59 of the Coroners Act 1985 because section 59
was repealed at the time the application was made; or
• the State Coroner refused to, or was not able to
(e.g. due to a direction of the Supreme Court) to
make an order under section 59A of the Coroners
Act 1985 because section 59A was repealed at the
time the application was made; or
• the Coroners Court refused to, or was not able to
(e.g. due to a direction of the Supreme Court) an order
under section 77 of the Coroners Act 2008 because
section 77 did not apply to findings, investigations
or inquests made or determined under the Coroners
Act 1958 or the Coroners Act 1985 at the time the
application was made.
The effect of new section 77(5) and (6) is that, if a person
applies for an order under new section 77(1), the application--
• may be considered by the Coroners Court if--
• any person had previously made an
unsuccessful application on the same, or
substantially the same, grounds or evidence,
to either the Supreme Court (under section 10
of the Coroners Act 1958, or section 59 of
the Coroners Act 1985) or the State Coroner
(under section 59A of the Coroners Act 1985)
or the Coroners Court (under section 77
of the Coroners Act 2008) ("the previous
application"); and
11
• the previous application was rejected on the basis
that--
• section 10 of the Coroners Act 1958,
section 59 of the Coroners Act 1985 or
section 59A of the Coroners Act 1985
(as the case may be) was repealed; or
• section 77 did not apply to findings,
investigations or inquests made
or determined under the Coroners
Act 1958 or the Coroners Act 1985
at the time the application was made.
• must be rejected by the Coroners Court if--
• any person made a previous application; and
• the previous application was not rejected on
the basis that--
• section 10 of the Coroners Act 1958,
section 59 of the Coroners Act 1985 or
section 59A of the Coroners Act 1985
(as the case may be) was repealed; or
• section 77 did not apply to findings,
investigations or inquests made or
determined under the Coroners
Act 1958 or the Coroners Act 1985
at the time the application was made.
The new section 77(7) of the Coroners Act 2008, provides that,
for the purpose of considering an application under section 77,
the State Coroner must determine which coroner is to constitute
the Coroners Court. The State Coroner may determine that the
original coroner, or another coroner, will constitute the Coroners
Court under this provision.
Example
In 2016, a person applies to the Supreme Court for an order
under section 59 of the Coroners Act 2008 to set aside the
findings and re-open the inquest of a matter finalised by a
coroner in 1990, on the basis of new evidence. The Supreme
Court holds that it cannot make such an order, because section 59
had been expressly repealed at the time the application was
12
made. Following commencement of clause 9 of the Bill, an
applicant may still make an application under section 77(1) on
the same, or substantially the same, grounds or evidence as the
2016 section 59 application to the Supreme Court, because the
specified circumstances outlined in new section 77(6)(b) apply.
Clause 10 amends section 78(1) of the Coroners Act 2008, and clarifies
that an appeal under section 78(1) could be made in relation to
a determination under new section 16(1A) that a death is not a
reportable death.
Clause 11 amends section 84. Subclause (1) amends the heading to that
section so that it refers to the Coroners Court, rather than a
coroner. Subclause (2) amends section 84(2) of the Coroners
Act 2008, which currently provides that a person must appeal
within 28 days after the refusal by the Coroners Court to
re-open an investigation under section 77. The purpose of the
amendment is to extend the time in which a person may appeal
such a decision from 28 days to 90 days. This new time limit
remains subject to section 86, under which the Supreme Court
may, in certain circumstances, grant an extension of time to
appeal.
Clause 12 amends section 87 of the Coroners Act 2008, which deals
with appeals to Supreme Court. The clause inserts a new
subsection (1A), the purpose of which is to clarify that an
appeal on a question of law includes an appeal on the ground
that a coroner's finding is against the evidence and the weight
of evidence to such an extent that no reasonable coroner could
have made the finding. This wording is intended to reflect
the concept of "Wednesbury unreasonableness" and does not
seek to expand or otherwise alter the scope of appeal rights
under Part 7 of the Coroners Act 2008. Such appeals remain
limited to an appeal on a question of law.
Clause 13 inserts a new section 118A into the Coroners Act 2008 to
require the Attorney-General to cause a review to be conducted
of the operation and effectiveness of amendments made by
Division 1 of Part 3 the Bill. The review must be commenced
within 3 years after the commencement of Part 3 of the Bill, and
the report of the review must be tabled in both Houses of
Parliament.
13
Clause 14 amends Schedule 1 to the Coroners Act 2008 to insert
transitional provisions relating to the Bill.
Subclause (1) provides that amended sections 4, 16, 17 and 78
apply at any time after the commencement of clauses 5, 6, 7
and 10 of the Bill (as the case may be) regardless of when the
death occurred or was reported to a coroner.
Accordingly, a coroner could make a determination under
section 16(1A) of the Coroners Act 2008, at any time after
the commencement of clauses 5 and 6 of the Bill, despite
the death occurring, and being reported to the coroner,
before the commencement of clauses 5 and 6 of the Bill.
Subclause (2) provides that new section 76A applies to any
decision of a coroner or the Coroners Court, regardless of
whether the decision was made before, on or after the
commencement of new section 76A.
Accordingly, a person could apply under new section 76A(1)
of the Coroners Act 2008, at any time after the commencement
of clause 8 of the Bill--
• despite the decision of the coroner or Coroners Court
being made before the commencement of clause 8 of
the Bill;
• provided the application under section 76A(1) is made
within 3 months after the date on which the decision of
the coroner or Coroners Court was made. (This time
limit is imposed by the new section 76A(3).)
Subclause (3) provides that amended section 77 applies to
applications made under section 77 to the Coroners Court--
• on or after the commencement of clause 9 of the Bill;
and
• before the commencement of clause 9 of the Bill if the
application has not been determined by the Coroners
Court before the commencement of clause 9 of the Bill.
Accordingly, the Coroners Court would apply section 77 of the
Coroners Act 2008, as amended by clause 9 of the Bill, in the
following scenario--
14
• the applicant applied under section 77 of the Coroners
Act 2008 prior to the commencement of clause 9 of the
Bill; and
• the Coroners Court determined the application after the
commencement of clause 9 of the Bill .
Subclause (4) provides that amended section 84(2) applies, on
and after the commencement of clause 11 of the Bill, to an appeal
against the Coroners Court's refusal to re-open an investigation
under section 77, irrespective of whether the refusal was made
before, on or after the commencement of that amendment.
Accordingly, the time frame for an appeal under amended
section 84(2) of the Coroners Act 2008 is, on and from the
commencement of clause 11 of the Bill, 90 days after the
refusal by the Coroners Court to re-open an investigation
under section 77, even if the refusal occurred before the
commencement of clause 11 of the Bill.
Division 2--Consequential amendment of Births, Deaths
and Marriages Registration Act 1996
Clause 15 amends section 38 of the Births, Deaths and Marriages
Registration Act 1996 and, in effect, provides that, if a coroner
makes a determination under section 16(1) or (1A) of the
Coroners Act 2008, the principal registrar of the Coroners Court
must provide to the Registrar of Births, Deaths and Marriages,
information that is required to be provided under the Coroners
Act 2008. This amendment is consequential to the amendments
made by clause 6 to section 16 of the Coroners Act 2008.
Part 4--Amendment of Crimes Act 1958
Division 1--Aboriginal persons in custody
Clause 16 inserts a definition of Aboriginal person for the purposes of new
sections 464AAB and 464FA. An Aboriginal person means a
person who--
(a) is descended from an Aboriginal person or Torres
Strait Islander; and
(b) identifies as an Aboriginal person or Torres Strait
Islander; and
15
(c) is accepted as an Aboriginal person or Torres Strait
Islander by an Aboriginal or Torres Strait Islander
community.
Clause 17 inserts new section 464AAB into the Crimes Act 1958.
New section 464AAB--Investigating official to ask whether
person in custody is an Aboriginal person
New section 464AAB provides that if a person is taken into
custody, an investigating official must ask the person whether
they are an Aboriginal person--
(a) as soon as practicable after the person is taken into
custody; and
(b) in any event, before any questioning or investigation
under section 464A(2) commences.
A note at the foot of new section 464AAB refers to new
section 464FA, which requires that the Victorian Aboriginal
Legal Service (VALS) be notified if an Aboriginal person is
taken into custody.
Clause 18 inserts new section 464FA into the Crimes Act 1958.
New section 464FA--Victorian Aboriginal Legal Service to
be notified if an Aboriginal person is taken into custody
New section 464FA(1) provides that if an Aboriginal is taken
into custody, an investigating official must notify VALS--
(a) within one hour of the person being taken into custody;
or
(b) if it is not practicable to do so within one hour, as soon
as it is practicable to do so.
New paragraph (b) recognises that, in practice, circumstances
may make it difficult for notification to occur within one hour.
The term in custody is defined in section 464 of the Crimes
Act 1958.
The section does not stipulate how notifications to VALS are
to be made, to allow for flexibility in practice and any future
changes due to, for example, the development of improved
technology.
16
The effect of new sections 464AAB and 464FA is to create a
custody notification scheme for Aboriginal and Torres Strait
Islander persons. The Commonwealth Government has agreed
to fund a custody notification service (modelled on the scheme
in New South Wales), conditional upon legislative change.
The notification requirement is intended to assist in decreasing
preventable injuries or deaths of Aboriginal and Torres Strait
Islander persons in police custody, increase legal and heath
protections for an Aboriginal or Torres Strait Islander person
in police custody, and increase Aboriginal and Torres Strait
Islander family and community safety.
New section 464FA(2) provides that for the purposes of new
subsection (1)--
(a) a person may be considered to be an Aboriginal person
if the investigating official who took the person into
custody is of the opinion that the person is such a
person; and
(b) an investigating official, in considering whether a
person is an Aboriginal person, must have regard to
any statement made by the person (whether or not
in response to a question asked by an investigating
official) as to whether they are an Aboriginal person.
A note at the foot of new subsection (2) refers to the
requirement in new section 464AAB to ask if a person
is an Aboriginal person.
New section 464FA(3) provides that as soon as practicable
after VALS is notified, an investigating official must inform
the Aboriginal person of that notification. A person is entitled
to the legal representation of their choice and the VALS
notification is not intended to affect that right.
New section 464FA(4) provides for a definition of VALS.
Division 2--Forensic procedure orders
Clause 19 amends section 464ZGL of the Crimes Act 1958 so that a
forensic procedure order may be certified by another judicial
officer and registered in another jurisdiction if required.
Section 464ZGL(1) provides that the Attorney-General may
enter into arrangements with the responsible Ministers of other
jurisdictions for the establishment and maintenance of a register
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of orders for the carrying out of forensic procedures made under
Subdivision (30A) of the Crimes Act 1958 or corresponding
laws of those jurisdictions.
Section 464ZGL(2) provides that an order is registered when a
copy of the forensic procedure order (being a copy certified by
the person who made it) is registered in accordance with the
law of that jurisdiction in which the register is kept.
The requirement that the order be "certified by the person
who made it" is problematic, as the person who made it may
not be available to certify the order. For example, they may
be on leave, have died or have retired.
Subclause (1) makes a minor amendment to existing
section 464ZGL(2) so that subsection (2) applies subject
to new subsection (2A), inserted by subclause (2).
Subclause (2) inserts new subsection (2A) in section 464ZGL
of the Crimes Act 1958. New subsection (2A) provides that
the copy of the order must be certified by--
(a) the person who made it; or
(b) if that person is not available, a judicial officer of the
participating jurisdiction in which the order was made.
The amendment allows another judicial officer to certify a
forensic procedure order for the purposes of section 464ZGL(2)
if the judicial officer who made the order is not available.
Part 5--Amendment of Criminal Procedure Act 2009
Division 1--Cross-examination of witnesses in
certain committal proceedings
Division 1 amends the Criminal Procedure Act 2009 to move to the trial
court the limited cross-examination of witnesses other than the complainant
that occurs during the committal hearing in sexual offence cases involving a
complainant who is a child or a person with a cognitive impairment.
Clause 20 repeals section 99 of the Criminal Procedure Act 2009.
Section 99 provides for the time limit for determining committal
proceedings for a sexual offence if the complainant was a child
or a person with a cognitive impairment when the criminal
proceeding commenced. As section 99 applies if a witness other
than the complainant in these cases is being cross-examined at a
18
committal hearing, and the Bill removes the committal hearing
from this specific subset of sexual offences cases, section 99 is
no longer required.
Clause 21 amends section 100 of the Criminal Procedure Act 2009, which
sets out the hearings that may be held in a committal proceeding.
Subclause (1) makes a minor amendment to section 100(1)(f) so
that paragraph (f)--which lists the committal hearing as a hearing
that may be held in a committal proceeding--applies subject to
new subsection (1A).
Subclause (2) inserts new subsection (1A) into section 100.
New subsection (1A) provides that a committal hearing is not to
be held in a committal proceeding to which section 123 applies.
A note refers to amended section 123, which provides that there
is to be no cross-examination in certain sexual offence cases.
Clause 22 substitutes note 1 at the foot of section 119(c) of the Criminal
Procedure Act 2009. Section 119 sets out the form and content
requirements of a case direction notice. Subsection (c) relates to
applications to cross-examine a witness at committal hearing.
New note 1 refers to amended section 123, which provides that
there is to be no cross-examination in certain sexual offence
cases.
New note 1A replicates existing note 1.
Clause 23 inserts a note at the foot of section 120(1) of the Criminal
Procedure Act. The note refers to amended section 123,
which provides that there is to be no cross-examination in
certain sexual offence cases.
Clause 24 amends section 123 of the Criminal Procedure Act, which
prohibits cross-examination of certain witnesses in sexual offence
cases, namely a complainant in a proceeding for a sexual offence
who was a child or a person with a cognitive impairment when
the criminal proceeding commenced.
Amended section 123 provides that despite anything to the
contrary in Part 4.5 of the Act, the Magistrates' Court must not
grant leave to cross-examine a witness in a proceeding that
relates (wholly or partly) to a charge for a sexual offence if the
complainant was a child or person with a cognitive impairment
when the criminal proceeding commenced.
19
Read in conjunction with new section 100(1A), which removes
the committal hearing from the list of hearings that can be held
in a committal proceeding in this subset of sexual offence case,
the effect of this amendment is that no committal hearing is to
be held in a sexual offence case involving a complainant who is
a child or a person with a cognitive impairment.
Clause 25 amends section 124 of the Criminal Procedure Act 2009.
Section 124 provides that leave is required to cross-examine
witnesses other than a witness referred to in existing section 123.
Subclause (1) inserts new subsection (1AA) into section 124.
New subsection (1AA) provides that section 124 does not apply
to a committal proceeding to which section 123 applies. A note
refers to amended section 123, which provides that there is to be
no cross-examination in certain sexual offence cases.
Subclause (2) omits the words "(other than a witness referred to
in section 123)" in section 124(1). This is because section 124 no
longer applies to a sexual offence case involving a complainant
who is a child or a person with a cognitive impairment.
Clause 26 amends section 125 of the Criminal Procedure Act 2009,
which outlines what the Magistrates' Court may do at a
committal mention hearing.
Subclauses (1) and (2) make minor amendments to
section 125(1)(c) and (d) so that these paragraphs apply
subject to new subsection (1A).
Subclause (3) inserts new subsection (1A) in section 125.
New subsection (1A) provides that subsection (1)(c) and (d)
do not apply to a committal mention hearing that is held in a
committal proceeding to which section 123 applies. A note
refers to amended section 123, which provides that there is
to be no cross-examination in certain sexual offence cases.
These amendments are necessary to give effect to the policy
that no committal hearing occur in this subset of sexual offence
cases.
Clause 27 amends section 141 of the Criminal Procedure Act 2009,
which applies to the determination of a committal proceeding
where a hand-up brief is used.
20
Subclause (1) substitutes existing section 141(1) to provide
that after the evidence for the prosecution is concluded, the
Magistrates' Court must enquire--
(a) except in a committal proceeding to which
section 123 applies, whether the accused intends
to call any witness; and
(b) whether the accused intends to make any
submission.
A note at the foot of paragraph (a) refers to amended section 123,
which provides that there is to be no cross-examination in certain
sexual offence cases. The amendment reflects that the accused
in cases to which section 123 applies will not be able to call
witnesses, as there is to be no committal hearing to be conducted
in these cases.
Subclause (2) amends section 141(2) to reflect that except
in a committal proceeding to which section 123 applies, the
accused may call any witness.
Subclause (3) makes a minor amendment to insert new
subsection (2A), which contains a requirement previously
contained in existing subsection (2) to inform the accused of
certain matters in a manner that is likely to be understood by
the accused.
Division 2--Pre-trial examination and
cross-examination of witnesses
Clause 28 repeals Part 4.11 of the Criminal Procedure Act 2009,
which provides for the taking of evidence by the Magistrates'
Court after an accused is committed for trial. In light of the
introduction of post-committal directions hearings in the
County and Supreme Courts, Part 4.11 is no longer required.
Clause 29 inserts a new Division heading (Division 3A--Pre-trial taking
of evidence and cross examination) into the Criminal Procedure
Act 2009 after section 197.
Clause 30 amends section 198 of the Criminal Procedure Act 2009 to
repeal subsection (2)(a) and (b). Subsection (2)(a) and (b)
overlap with the common law Basha hearing, which is codified
by new section 198B (see clause 31). Amended section 198
allows for a party to a criminal proceeding to apply for an order
21
to take a the whole of a witness's evidence before trial where
existing subsection (2)(c) to (e) applies.
It is not intended that amended section 198 permit cross-
examination of a complainant in a sexual offence case who
is a child or a person with a cognitive impairment when the
criminal proceeding commenced (i.e., a complainant referred
to in section 123 of the Criminal Procedure Act 2009).
The operation of section 198 in this way is well-accepted,
as the special hearing held under Division 6 of Part 8.2 of the
Criminal Procedure Act 2009 provides for special procedure
and rules in these cases (and allows the complainants evidence
to be taken pre-trial pursuant to section 370(1A)(a)).
Clause 31 inserts new sections 198A, 198B and 198C into the Criminal
Procedure Act 2009.
New section 198A--Order for accused to cross-examine witness
before trial in certain sexual offence cases
New section 198A builds on the amendments in Division 1
of Part 5 and ensures that an accused in these particular
sexual offence cases is not deprived of the opportunity to
cross-examine a witness other than the complainant prior to
trial. The opportunity is simply moved from the committal
proceeding to the trial court. Moving cross-examination to
the trial court will allow for more efficient and effective
cross-examination in these cases, as the trial judge and counsel
will be aware of the particular issues in the case, allowing them
to more appropriately confine the matters on which a witness
may be cross-examined.
New section 198A(1) provides that new section 198A applies
to a criminal proceeding to which amended section 123 applies
(see clause 24).
New section 198A(2) provides that at any time except
during trial, an accused may apply to the court for an order to
cross-examine a witness other than a complainant at a time
and place fixed by the court.
New section 198A(3) sets out the requirements of an application
under new subsection (2). An application must state--
(a) each issue for which leave to cross-examine is sought;
and
22
(b) the reason why the evidence of the witness is relevant
to the issue; and
(c) the reason why cross-examination on the issue is
justified.
These requirements reflect existing section 119(c) of the
Criminal Procedure Act 2009.
New section 198A(4) provides that the court must not make the
order sought in the application unless the court is satisfied of
certain matters. These matters reflect existing section 124(3).
New section 198A(5) provides that in determining whether
cross-examination is justified, the court must have regard to the
need to ensure the matters set out in existing section 124(4).
The provision also states that the court may have regard to
whether the prosecution consents to or opposes the order being
made.
New section 198A(6) provides that, in addition, if the witness is
under 18 years of age, the court must have regard to the matters
set out in existing section 124(5).
New section 198A(7) provides that if the court makes the
order, the court must identify each issue on which the witness
may be cross-examined. This requirement reflects existing
section 124(6).
New section 198B--Order for accused to conduct limited
preparatory cross-examination
New section 198B codifies the common law Basha procedure,
which is a separate hearing in the absence of the jury in
which a prosecution witness is called for the purpose of
cross-examination by the accused (R v Basha (1989) 39
A Crim R 337). This common law process permits an accused
to apply to the court to cross-examine a witness in order to
obtain sufficient information about that witness's evidence so
that an accused can adequately present their defence (and avoid
a serious risk of an unfair trial).
New section 198B(1) provides that an accused may apply to
the court for an order to cross-examine a witness.
23
New section 198B(2) sets out the requirements of an application
under new subsection (1). An application must state--
(a) the issue to which the proposed questioning relates; and
(b) the purpose of the proposed questioning.
These requirements reflect the common law requirements for
the defence to make an application and reflect that it is not
appropriate to allow cross-examination, for example, to conduct
an exploratory investigation of the witness's evidence or to test
out a line of cross-examination.
New section 198B(3) provides that the court must not make the
order sought unless the court is satisfied that it is necessary to do
so in order to avoid a serious risk that the trial would be unfair.
This reflects the fundamental purpose of the Basha process,
which is to ensure a fair trial.
New section 198B(4) sets out 2 factors that the court must have
regard to in determining whether new subsection (3) is satisfied,
namely--
(a) the purpose of a committal proceeding as set
out in section 97 of the Criminal Procedure
Act 2009; and
(b) the limitations that apply in relation to
cross-examination of a witness at a committal
hearing.
While the conduct of a committal proceeding does not bind
the trial judge, it is relevant to the exercise of the discretion
whether to grant or not an application under this section.
New section 198B(5) clarifies that if the court makes the
order sought, the prosecution may re-examine a witness who
is cross-examined pursuant to new section 198B.
New subsection (6) provides that new section 198B applies
both before and during trial. This ensures that a witness may
be cross-examined under this section before they are called to
give evidence before a jury, but after the trial has commenced.
New subsection (7) provides that during trial an application
for an order and any cross-examination conducted in
accordance with an order must be heard in the absence of
the jury. Cross-examination that takes place during a Basha
24
at common law was always conducted in the absence of the
jury and did not form part of the evidence in a case.
It is not intended that new section 198B permit cross-examination
of a complainant in a sexual offence case who is a child or
a person with a cognitive impairment when the criminal
proceeding commenced (i.e., a complainant referred to
in section 123 of the Criminal Procedure Act 2009).
The operation of a Basha in this way is well-accepted (as the
court should have regard to the purposes of a committal hearing
and restrictions on cross-examination at a committal hearing).
Furthermore, the special hearing held under Division 6 of
Part 8.2 of the Criminal Procedure Act 2009 provides for
special procedure and rules in these cases (and allows the
complainants evidence to be taken pre-trial or during the trial
pursuant to section 370(1A)).
New section 198C--Abolition of Basha procedure
New section 198C abolishes the common law procedure
attributed to the case of R v Basha (1989) 39 A Crim R 337.
Division 3--Admission of recorded evidence in
sexual offence cases
Clause 32 amends section 381 of the Criminal Procedure Act 2009,
which relates to the admission of a recording of evidence of
a complainant in a sexual offence case to which the special
hearing does not apply.
Subclause (1) inserts new subsections (1AA) and (1AAB) in
section 381, which provide that subject to section 381, the court
may admit a recording of the evidence of the complainant and
that there is a presumption in favour of admitting the recording.
Subclause (2) amends section 381(1) of the Criminal Procedure
Act 2009 to provide that the presumption in favour of admitting
the recording is rebutted if the court considers that it is in the
interests of justice that the recording not be admitted.
These amendments clarify that the default position is that a
recording of the complainant's evidence is ordinarily admitted
unless it is not in the interests of justice to do so. This better
reflects the policy that a sexual offence complainant should only
have to give evidence at trial on one occasion and addresses
25
concerns raised in the decision of Dennis Bauer (A Pseudonym)
(No 2) v The Queen [2017] VSCA 176.
Subclause (2) also repeals section 381(1)(c), which permits the
court to consider the complainant's availability or willingness to
give further evidence. This paragraph is repealed to ensure that
a court's consideration of this factor does not have unintended
consequences for complainants, for example, having to give
evidence about why they are not willing to give further evidence.
Subclause (3) inserts new subsection (1A) in section 381, to
provide that the availability or willingness of a complainant to
give further evidence is not a irrelevant to the question of
whether it is in the interest of justice to admit a previous trial
recording. This builds on the repeal of section 381(1)(c).
Division 4--Presence of witnesses in courtroom
Clause 33 repeals section 336A(2) of the Criminal Procedure Act 2009
as this provision is unnecessary. Recommendation 19 of the
Victorian Law Reform Commission's report, The Role of Victims
of Crime in the Criminal Trial Process recommended that
victims should be permitted to be present during the criminal
proceedings that relate to the crime committed against them,
after giving evidence. Section 336A(1) provides that the court
may order the victim to leave the courtroom until required to
give evidence if the court considers it appropriate to do so.
Section 336A(2) provides that nothing in subsection (1) prevents
the court from ordering a victim who is a witness to leave the
courtroom at any time after giving evidence. It is an inherent
power of the court to order a victim to leave the courtroom after
giving evidence to ensure a fair trial and subsection (2) is
unnecessary.
Division 5--Indictable offences that may be heard
and determined summarily
Clause 34 provides that an offence of causing serious injury recklessly
(pursuant to section 17 of the Crimes Act 1958) cannot be
determined summarily in circumstances where the offence was
alleged to have been committed against an emergency worker,
a custodial officer or a youth justice custodial worker on duty
within the meaning of section 10AA of the Sentencing Act 1991.
26
Division 6--DPP's right of appeal
Clause 35 inserts new subsection (3) into section 260 of the Criminal
Procedure Act 2009 to clarify that the DPP must not bring
a further appeal against sentence for the failure to fulfil an
undertaking after an appeal has been determined by the County
Court or Trial Division of the Supreme Court. Like current
section 257(2) of the Criminal Procedure Act 2009, this ensures
that the DPP cannot appeal from a previous appeal by the DPP.
Clause 36 inserts new sections 290A, 290B, 290C and 290D into the
Criminal Procedure Act 2009 to provide a new right of appeal
for the DPP in certain circumstances. Apart from the new ground
of appeal, these new provisions mirror current provisions on the
DPP's right to appeal against an inadequate sentence imposed by
an originating court.
New section 290A provides that the DPP may appeal to the Court
of Appeal against certain sentences imposed by the County Court
or the Trial Division of the Supreme Court under section 256 on
an appeal under section 254.
The County Court or Trial Division of the Supreme Court
must have made a finding under section 5(2H) or 10A of
the Sentencing Act 1991. Section 5(2H) provides that an
offender must be sentenced to a custodial order for a category 2
offence unless a matter set out in paragraphs (a) to (e) applies.
Section 10A provides for special reasons that may apply to the
imposition of certain statutory minimum sentences.
The DPP may appeal in the above circumstances if the DPP
considers that there is an error in the sentence imposed and a
different sentence should be imposed. The DPP must also be
satisfied that an appeal should be brought in the public interest.
New section 290B provides procedures for commencing a new
section 290A appeal. New section 290B mirrors section 288 of
the Criminal Procedure Act 2009.
New section 290C provides for powers of the Court of Appeal in
determining whether to allow an appeal under new section 290A.
The Court of Appeal must allow the appeal if it is satisfied that
there is an error in the sentence and a different sentence should
be imposed. New section 290C mirrors section 289 of the
Criminal Procedure Act 2009.
27
New section 290D provides for the orders that the Court of
Appeal must make if it allows an appeal under new section 290A.
The Court of Appeal must set aside the sentence imposed and
impose the sentence that it considers appropriate, whether that
sentence is more or less severe, and may make any other order
that it considers ought to be made. New section 290D mirrors
section 290 of the Criminal Procedure Act 2009.
Clause 37 inserts new subsection (4) into section 321 of the Criminal
Procedure Act 2009. Section 321 currently sets out how new
evidence may affect sentences on appeal. The section applies
to all appeals under Part 6.3, including appeals by the DPP.
New subsection (4) is a consequential amendment to ensure
that the section also applies to appeals under new section 290A.
It provides that on such an appeal, the Court of Appeal may
increase a sentence on the basis of new evidence if the court
that determined the appeal under section 254 was misled as
to a material fact and an increase in sentence is necessary in
the interests of justice.
Clause 38 amends section 325 of the Criminal Procedure Act 2009
to provide that the Court of Appeal may set aside or vary an
ancillary order made by the County Court or Trial Division
of the Supreme Court in an appeal under section 254 of the
Criminal Procedure Act 2009. As with clause 36, this is a
consequential amendment to extend the Court of Appeal's
current powers in relation to ancillary orders to appeals under
new section 290A.
Clause 39 inserts a reference to new section 290A into section 15 of the
Appeal Costs Act 1998 so that an offender can apply for an
indemnity certificate if the DPP exercises the right to appeal
under new section 290A.
Division 7--Transitional provisions and
miscellaneous amendments
Clause 40 substitutes "complainant" for "witness" in section 370(1B)(f) of
the Criminal Procedure Act 2009.
Clause 41 makes a statute law revision by substituting "452" for "449" in
the heading to section 449 of the Criminal Procedure Act 2009.
28
Clause 42 inserts section 449 of the Criminal Procedure Act 2009, which
provides transitional provisions for amendments contained in
Part 5 of the Bill.
New section 449(1) provides that amending Act means the
Justice Legislation Miscellaneous Amendment Act 2018.
New section 449(2) provides that Division 1 of Part 5 of the Bill
applies to a criminal proceeding that commences on or after the
day on which that provision comes into operation.
New section 449(3) provides that Division 2 of Part 5 of the Bill
applies to a criminal proceeding in which an indictment is filed
on or after the day on which that provision comes into operation.
New section 449(4) provides that Division 3 of Part 5 of the
amending Act applies to--
(a) a trial that commences on or after the day on which that
provision comes into operation; and
(b) a summary hearing held on or after the day on which
that provision comes into operation.
New section 449(5) and (6) are the transitional provisions for
clause 34, which is the amendment to stop certain matters
involving offences of causing serious injury recklessly from
being heard in the Magistrates' Court. The provisions provide
for clause 34 to operate prospectively, and will require any
matters currently before the Magistrates' Court to be transferred
to a higher court.
New section 449(7) provides that the new DPP appeal right
in Division 6 of Part 5 of the Criminal Procedure Act 2009
applies to a criminal proceeding in which the plea to the charge
is entered in the Magistrates' Court after the commencement of
that Division. That is, an appeal will be possible if an accused
pleads guilty or not guilty to the charge after the commencement
date.
Part 6--Amendment of Domestic Building Contracts Act 1995
Clause 43 inserts new section 45BA in the Domestic Building Contracts
Act 1995 (referred to as the "DBC Act" in this memorandum).
Presently the DBC Act does not set out a simple method of
closing a matter where the parties have resolved the dispute
between themselves before a conciliation officer of Domestic
29
Building Dispute Resolution Victoria (DBDRV) has completed
their initial assessment of the matter.
New section 45BA enables a referring party to withdraw a
referral under section 45 at any time before a conciliation
officer makes a recommendation under section 45C(1) by giving
written notice to the chief dispute resolution officer. When a
referral is withdrawn, the chief dispute resolution officer must
notify any party to the dispute in writing.
Clause 44 repeals sections 45C(3)(a), (b) and (e) of the DBC Act, which
list circumstances where the chief dispute resolution officer may
reject a referral.
Paragraphs (a), (b) and (e) are unnecessary as there is overlap
between these provisions and the reasons for which a referral
may be deemed out of jurisdiction under section 45 of the DBC
Act. Currently it is unclear whether a referral contravening
these provisions should be deemed as being out of jurisdiction
under section 45, or rejected on the basis of being not suitable
for conciliation under section 45C.
A referral that would have been rejected as being not suitable for
conciliation under sections 45C(3)(a), (b) or (e) will now be held
to be out of jurisdiction under section 45.
Clause 45 amends section 45E of the DBC Act which provides for written
notice by the chief dispute resolution officer of a decision under
section 45C or 45D.
Subclause (1) amends section 45E(1) to require the chief
dispute resolution officer to give written notice only
where a referral is accepted or a referred matter is accepted.
This amendment addresses the current administrative
burden on the chief dispute resolution officer to give both
a notice of decision (including reasons) under section 45E,
followed by a certificate of conciliation under section 45F
in respect of a decision to reject a dispute.
Subclause (2) repeals section 45E(3) of the DBC Act, so
that section 45E only requires the chief dispute resolution
officer to give reasons for the decision to accept a referral.
30
Clause 46 makes consequential amendments to section 45F of the DBC
Act in light of amendments to section 45E.
Subclause (1) repeals section 45F(2) of the DBC Act concerning
the issuance of a certificate of conciliation after a decision to
reject a referral under section 45E.
Subclause (2) omits the phrase "copy of the" from section 45F(4)
of the DBC Act. This requires the certificate of conciliation to
be given.
Clause 47 amends section 45G of the DBC Act to clarify that the
provision applies only to withdrawals that are made after
the referral has been accepted or rejected.
Clause 48 substitutes section 46D(3)(b) of the DBC Act.
Currently, section 46D(3)(b) requires notice under
section 46D(2) to state the reasons why the dispute was not
resolved. This is at odds with the confidential conciliation
process, and section 46C(1) which provides that anything
said or done by the parties in the course of conciliation is
inadmissible in VCAT.
New section 46D(3)(b) replaces the current requirement with
a new requirement that, where the chief dispute resolution officer
is of the opinion that an identified party did not participate in the
conciliation or did not participate in good faith, they must
provide a statement to that effect.
Clause 49 substitutes section 48Q(2)(a) of DBC Act, which concerns
assessors' reports of defective or incomplete building work.
Section 48Q(2)(a) stipulates types of defective or incomplete
building work that must be specified in a report under
section 48O. This is unnecessary as the form of the assessor's
report is approved by the Director of Consumer Affairs Victoria
and the approved form directs the assessor to consider particular
matters during an examination. Section 48Q(2)(a)(i) and (ii)
duplicate these requirements, which has caused uncertainty
about the extent of the assessor's obligations.
New section 48Q(2)(a) simply requires the report to specify the
building work that is defective or incomplete.
31
Clause 50 inserts new sections 49F(3) and 49F(4) in the DBC Act.
New section 49F(3) allows the chief dispute resolution officer
to determine that domestic building work is compliant with a
dispute resolution order where no notice is given by the builder
under section 49P or by the building owner under section 49R
within the respective specified timeframes.
This reduces the investigative burden on DBDRV arising
from the current requirement to notify the builder's insurer of
the builder's compliance or failure to comply with a dispute
resolution order.
New section 49F(4) requires that where the chief dispute
resolution officer determines the builder's compliance with
the dispute resolution order in accordance with subsection (3),
the chief dispute resolution officer must include in the notice
a statement of that determination.
Clause 51 inserts new section 56(4) in the DBC Act, which provides that
section 56 does not affect the validity of any decision made by
VCAT any time before, on or after the commencement of Part 6
of the Bill.
This clarifies the validity of VCAT decisions where DBDRV
has rejected a referral on jurisdictional grounds and VCAT has
subsequently accepted an application without a certificate of
conciliation.
Clause 52 substitutes section 122 of the DBC Act to facilitate the
publication by the Director of Consumer Affairs Victoria
of various details and approved forms of documents or
provisions under the DBC Act on DBDRV's and Consumer
Affairs Victoria's Internet sites rather than in the Government
Gazette. This reflects common industry practice whereby
the DBDRV and Consumer Affairs Victoria Internet sites
are the primary sources of information for building industry
practitioners regarding regulatory requirements.
The removal of gazettal requirements is in keeping with
publication requirements in other Acts. For example, under
the Australian Consumer Law (Victoria) product safety notices
only require written notice published on the Internet.
32
Part 7--Amendment of Estate Agents Act 1980
The Estate Agents Act 1980 provides for the regulation of estate agents,
including licensing, professional conduct and administrative requirements.
Section 49A of the Estate Agents Act 1980 provides that estate agents
must not seek payment for work done on behalf of the vendor unless the
written engagement contains a rebate statement that complies with the Act.
The Act provides that a rebate statement is compliant if it is in a form
approved by the Director of Consumer Affairs Victoria (CAV), and contains
certain other statements, including a statement that agent is not entitled to
retain any rebate, and must not charge the client an amount for any expenses
that is more than the cost of the expenses. An agent is not entitled to sue for,
recover or retain any commission or money in respect of a transaction unless
the agent has complied with the rebate statement requirements.
Part 7 of the Bill amends the Estate Agents Act 1980 to respond to an issue
arising from County Court and Supreme Court proceedings in Advisory
Services Pty Ltd (trading as Ray White St Albans) v Augustin & Anor
regarding the validity of rebate statements contained in sales authorities
used by estate agents. As the rebate statement did not contain the statement
required by section 49A(4)(c) of the Estate Agents Act 1980, it was found
that it did not comply with requirements of section 49A, meaning the estate
agent was not entitled to be paid commissions by the vendor for work
undertaken.
Division 1--Rebate statements
Clause 53 provides for the amendment of section 49A of the Estate Agents
Act 1980 to insert 2 new subsections. Subsection 49A(6)
provides that an estate agent whose rebate statement contained
an engagement or appointment in a form approved by the
Director of Consumer Affairs Victoria does not fail to comply
with section 49A(4) of the Estate Agents Act 1980 merely
because the rebate statement does not include the statement
referred to in either subsection (4)(a) or (4)(c).
Subsection 49A(7) provides that subsection (6) applies only to
a rebate statement contained in an engagement or appointment
entered into prior to the day on which the amending Act receives
the Royal Assent. This will ensure that an estate agent who
uses a non-compliant rebate statement in good faith will not
be unduly disadvantaged if the estate agent is not aware of the
33
announcement of the amendment and therefore unable to take
remedial action before passage of the Bill.
This limitation of the application of subsection (6) reflects
that the rebate statement contained in the standard form sales
authority has been updated to include the statement referred to
in subsection (4)(c), thus ensuring that the validity issue should
not arise again into the future. Only past sales which used
the noncompliant rebate statement will be captured by the
amendment. Commencement of this provision is backdated
to the date on which the Bill is publicly announced to mitigate
against the risk that vendors may seek to avoid paying
commissions prior to the passage of the Bill through the
Parliament, and clearly communicate the Government's
intention that estate agents who used the non-compliant rebate
statement in good faith should be entitled to payment for work
performed on behalf of vendors.
Clause 54 inserts a new Division 3 of Part IX of the Estate Agents
Act 1980, which consists solely of a new section 104.
Section 104(1) provides that section 49A, as amended by
the Bill, applies to, and is taken to have always applied to,
the engagement or appointment of an estate agent in respect
of work done by or on behalf of the agent or in respect of
any outgoings incurred by the agent.
Section 104(2) provides that, despite subsection (1), the
amendment of section 49A by the Bill does not affect the
rights of the parties in Advisory Services Pty Ltd (trading as
Ray White St Albans) v Augustin & Anor [2018] VSCA 95
in the Supreme Court.
Section 14(2) of the Interpretation of Legislation Act 1984
provides that an amendment will generally not interfere with
legal proceedings that would otherwise be affected by the
amendment. However, the amendment can expressly provide
otherwise. Subsection 104(3) expressly provides that any legal
proceedings commenced before 9 June 2018 (which is the day
the Government announced that it would introduce legislation
to address the issues raised by the Court's decision), other than
the proceedings referred to in subsection (2), are to be affected
and subsection (1) applies to those proceedings.
34
Division 2--Miscellaneous
Clause 55 repeals the definition of prescribed in section 4(1) of the Estate
Agents Act 1980. The definition of prescribed is unnecessary
as the term is defined by section 38 of the Interpretation of
Legislation Act 1984.
Clause 56 amends section 60(2) to replace a colon with an em dash, in
accordance with current drafting practices.
Part 8--Amendment of Evidence Act 2008
Clause 57 amends section 41(1) of the Evidence Act 2008 to provide that
the court must, rather than may, disallow improper questions.
This amendment implements recommendation 18 of the
Victorian Law Reform Commission's report, The Role of Victims
of Crime in the Criminal Trial Process. This makes Victorian
law consistent with Uniform Evidence Act provisions adopted
by New South Wales, Tasmania and the Australian Capital
Territory.
Subclause (2) repeals section 41(2) and (4), which provide
for mandatory disallowance of improper questions put to
vulnerable witnesses and a definition of vulnerable witness.
The amendment in subclause (1) makes these provisions
unnecessary.
Part 9--Amendment of Family Violence Protection Act 2008
Clause 58 provides that the Secretary to the Department of Justice and
Regulation must be notified if a person is subject to a place or
area exclusion condition attached to a community correction
order made under the Sentencing Act 1991, and that person is
directed, apprehended or detained under the Family Violence
Protection Act 2008.
Clause 59 provides that a family violence intervention order made
under the Family Violence Protection Act 2008 prevails
over an existing community correction order with a place or
area exclusion condition, to the extent of any inconsistency.
This amendment clarifies the obligations of a person who
is subject to both orders.
35
Clause 60 inserts a transitional provision into the Family Violence
Protection Act 2008 that provides for the amendment in
clause 59 to apply to a family violence intervention order or a
recognised domestic violence order that has effect on or after
the commencement of clause 59, irrespective of when the order
was made. The amendment will be applicable to existing orders,
such that, for example, a person who is subject to both a family
violence intervention order and a community correction order
with an inconsistent place or area exclusion condition is required
to behave as if the relevant conditions of the family violence
intervention order prevail.
Part 10--Amendment of Honorary Justices Act 2014
Clause 61 repeals section 40(2) of the Honorary Justices Act 2014.
Section 40 permits a retired honorary justice who also meets
certain age and service criteria to apply to the Secretary for
permission to use the title "JP (Retired)" or "BJ (Retired)"
after the name of the person. Section 40(2) requires that an
application for permission under subsection (1) must be made
no later than 12 months after the person ceases to hold office
as a justice of the peace or a bail justice.
The 12-month time limit has precluded some people who have
volunteered significant amounts of time over the years from
using the title. The amendment removes the time limit and
allows honorary justices to apply to the Secretary for permission
to use the title at any time after ceasing to hold office.
Clause 62 inserts new section 40A into the Honorary Justices Act 2014.
New section 40A--Use of retirement titles by persons who retired
before this Act commenced
New section 40A provides that existing section 40 applies to a
person who held, and had ceased to hold, the office of bail justice
or justice of the peace before 1 September 2014 in the same way
that applies to a person by way of sections 7, 14, 15 or 18 of the
Act. This amendment permits applications to use the relevant
titles to be made by persons who ceased to be a bail justice or a
justice of the peace before the commencement of the Honorary
Justices Act 2014.
36
Part 11--Amendment of Personal Safety
Intervention Orders Act 2010
Clause 63 provides that a personal safety intervention order made under
the Personal Safety Intervention Orders Act 2010 prevails
over an existing community correction order with a place or
area exclusion condition, to the extent of any inconsistency.
This amendment clarifies the obligations of a person who is
subject to both orders.
Clause 64 inserts a transitional provision into the Personal Safety
Intervention Orders Act 2010 that provides for the amendment
in clause 63 to apply to a personal safety intervention order
that has effect on or after the commencement of clause 63,
irrespective of when the order was made. The amendment will
be applicable to existing orders, such that, for example, a person
who is subject to both a personal safety intervention order and
a community correction order with an inconsistent place or
area exclusion condition is required to behave as if the relevant
conditions of the personal safety intervention order prevail.
Part 12--Amendment of Retirement Villages Act 1986
Clause 65 inserts new paragraphs (ba) and (bb) in section 43(2) of the
Retirement Villages Act 1986 (referred to as the "RV Act"
in this explanatory memorandum).
The new provisions provide that Regulations made under
section 43(1) of the RV Act may apply to different classes
of persons, and may prescribe different infringement penalties
for different classes of persons.
The new provisions are necessary as the RV Act does not
differentiate between natural persons and bodies corporate
in respect of penalty amounts, meaning that the infringement
amounts for bodies corporate are set at the level for natural
persons, which is too low to be effective in respect of bodies
corporate. New paragraphs (ba) and (bb) ensure that regulations
can be made providing for bodies corporate to be appropriately
penalised and deterred from committing offences under the
RV Act.
37
Part 13--Amendment of Rooming House Operators Act 2016
Clause 66 amends section 3(1) of the Rooming House Operators Act 2016
(referred to as the "RHO Act" in this explanatory memorandum).
Subclause (1) amends the definition of body corporate in
section 3(1) of the RHO Act, to extend the definition to include
an incorporated association established under an Act of another
State or a Territory.
The amendment enables interstate-registered incorporated
associations to apply for a licence to operate a rooming house
under section 9 of the RHO Act.
Subclause (2) substitutes the definition of rooming house
provisions in section 3 of the RHO Act.
Currently, the licence and renewal disqualification criteria of
the RHO Act do not disqualify a rooming house operator who is
convicted or found guilty of breaching the provisions of Part 2 of
the Residential Tenancies Act 1997 in relation to residents with
whom the operator has entered a tenancy agreement from being
licensed.
The new definition of rooming house provisions addresses
this issue by extending the definition to capture, amongst other
things, provisions of the Residential Tenancies Act 1997 to the
extent to which they apply to a resident of a rooming house who
occupies a room in that premises under a tenancy agreement.
Clause 67 amends section 7 of the RHO Act, which concerns operating a
rooming house without a licence.
Subclause (1) substitutes a new heading in section 7 of the RHO
Act. The heading is amended to read "Offence to operate a
rooming house without a licence".
Subclause (2) substitutes section 7(1) of the RHO Act.
New section 7(1) clarifies that all persons who operate rooming
houses are required to be licensed, and that it is an offence to
operate a rooming house without a licence. The penalty
for an offence against this provision is 240 penalty units or
imprisonment for 2 years in the case of a natural person, or
1200 penalty units in the case of a body corporate.
38
Subclause (3) inserts new section 7(3), which defines registered
housing association and registered house provider as having the
same meanings as in the Housing Act 1983.
Clause 68 amends section 17(1) of the RHO Act, which lists licence
disqualification criteria.
It inserts a new paragraphs (k) and (l), which extend the licence
disqualification criteria. New paragraph (k) precludes a natural
person from applying for and being granted a licence where the
person was an officer of a body corporate within the preceding
5 years in the circumstances contemplated by sections 17(f),
(g) or (h). New paragraph (l) precludes a natural person from
applying for or being granted a licence where that person was an
officer of a body corporate whose licence was cancelled within
the preceding 5 years.
Clause 69 amends section 18(1) of the RHO Act, which lists renewal
disqualification criteria.
It inserts new paragraphs (h) and (i), which extend the renewal
disqualification criteria.
New paragraph (h) precludes an applicant who is a natural person
from having a licence renewed where the person was an officer
of a body corporate during the period to which the licence relates
in the circumstances contemplated by sections 18(d) or (e).
New paragraph (i) precludes an applicant who is a natural person
from having a licence renewed where the person was an officer
of a body corporate whose licence was cancelled.
Clause 70 substitutes section 33(1)(b) of the RHO Act, which provides
VCAT with the power to make a protective order referred to in
section 34(3) of the RHO Act.
New section 33(1)(b) provides that a protective order made by
VCAT pursuant to section 33(1)(b) is clearly made under that
section, rather than section 34(3).
Clause 71 amends section 58(1) of the RHO Act, which concerns entry of a
rooming house by an inspector without consent or warrant for the
purpose of monitoring compliance.
39
It inserts new paragraph (d), which provides an inspector with
power to make any still or moving image, audio recording or
audio-visual recording. This ensures a consistent approach to
enforcement and compliance activities under the RHO Act.
Clause 72 inserts new section 79A in the RHO Act, which enables the
Licensing Registrar to waive or reduce fees in a particular case
or class of cases.
Part 14--Amendment of Sentencing Act 1991 and
consequential amendment of other Acts
Division 1--Sentencing Act 1991
Clause 73 amends the definition of category 1 offence in the Sentencing
Act 1991 to include various offences in the definition.
Subclause (1)(a) inserts into the definition of category 1 offence
the offences of causing serious injury intentionally, causing
serious injury recklessly and causing injury intentionally or
recklessly if the victim was an emergency worker, custodial
officer or youth justice custodial worker on duty, and the
offender knew or was reckless as to whether the victim was
such a person.
Subclause (1)(b) inserts into the definition of category 1 offence
the offences of aggravated home invasion, aggravated carjacking,
intentionally exposing an emergency worker, custodial officer or
youth justice custodial worker to risk by driving (if, in the
commission of the offence, the worker or officer on duty is
injured) as well as the aggravated version of that offence (if, in
the commission of the offence, the worker or officer on duty is
injured).
Subclause (2) inserts into the definition of category 1 offence
repealed sexual offences in the Crimes Act 1958 committed on
or after 20 March 2017 and before 1 July 2017. These offences
are analogous to the sexual offences currently listed in the
definition of category 1 offence.
Clause 74 amends the definition of category 2 offence in the Sentencing
Act 1991 to include various offences in the definition and to
amend the definitions of existing offences.
40
Paragraph (a) specifies that offences of causing serious injury
intentionally that are not committed against an emergency
worker, custodial officer or youth justice custodial worker on
duty, and where the offender knew or was reckless as to whether
the victim was such a person, are a category 2 offence.
Paragraph (b) specifies that the aggravated offence of
intentionally exposing an emergency worker, custodial officer
or youth justice custodial worker on duty to risk by driving
where the offence does not result in an injury is a category 2
offence.
Paragraph (c) amends the definition of category 2 offence to
ensure that paragraph (k) refers to the offence name as well as
the relevant section of the Crimes Act 1958.
Paragraphs (d) and (e) insert into the definition of category 2
offence in the Sentencing Act 1991 the offences of armed
robbery if the offender had a firearm, or a victim was injured as a
result of the offence or the offence was committed in company
with one or more persons, home invasion, carjacking, culpable
driving causing death and dangerous driving causing death.
Clause 75 inserts definitions of mandatory treatment and monitoring
order, psychiatrist and registered psychologist into the
Sentencing Act 1991.
Clause 76 amends section 5 of the Sentencing Act 1991 in relation to the
sentencing requirements for category 1 offences and category 2
offences.
Subclauses (1) and (2) make changes affecting sentencing in
relation to category 1 offences.
Subclause (1) amends section 5(2G) of the Sentencing Act 1991
by referencing new subsection (2GA) inserted by subclause (2).
Subclause (2) inserts new subsections into section 5 of the
Sentencing Act 1991. New subsection (2GA) provides for a
limited exception to the requirement that a court must impose
a custodial sentence for category 1 offences in relation to the
offences against sections 16, 17 and 18 of the Crimes Act 1958
where the victim is an emergency worker, a custodial officer or
a youth justice custodial worker on duty and the offender knew
or was reckless as to whether the victim was such a person,
and offences against sections 317AC and 317AD of the Crimes
41
Act 1958 if, in the commission of the offence, an emergency
worker, custodial officer or youth justice worker on duty is
injured.
These offences also carry a statutory minimum non-parole
period or term of imprisonment, meaning that an offender
sentenced to one of those offences must be sentenced to a
particular term of imprisonment unless a court finds a special
reason under section 10A. In sentencing an offender for one
of these offences where the court has found that a special
reason under section 10A of the Sentencing Act 1991 exists,
the court must either impose a term of imprisonment, or make a
residential treatment order, a court secure treatment order or a
new sentencing order known as a mandatory treatment and
monitoring order (which may also be combined with a term of
imprisonment) if the offender proves that they had impaired
mental functioning at the time of the offence that is causally
linked to the commission of the offence and substantially and
materially reduces their culpability, and the court is satisfied
that one of those sentencing options is appropriate.
The test relating to impaired mental functioning in new
section 5(2GA) is based on the existing impaired mental
functioning special reason test in section 10A(2)(c)(i), which
requires the culpability of the offender to be substantially
reduced by their impairment. By requiring the culpability
of the offender to be reduced substantially and materially,
in new section 5(2GA), it is intended that the threshold
required to meet the test for this new test be higher than
that in section 10A(2)(c)(i)--in other words, the reduction
in culpability should be greater. This means there could
conceivably be circumstances where an offender satisfies the
test in section 10A(2)(c)(i), but then fails to satisfy the test in
new section 5(2GA), meaning that the offender must serve a
term in custody.
New subsection (2GB) provides that before making an order
under subsection (2GA), a court must have regard to a report
in which a psychiatrist or registered psychologist who has
examined the offender in relation to the offending addresses
whether the offender had impaired mental functioning at the
time of the offence that is causally linked to the commission
of the offence and substantially and materially reduces their
42
culpability, and any other evidence that the court considers
relevant.
New subsection (2GC) clarifies that the exception in new
subsection (2GA) does not apply to impaired mental
functioning caused solely by self-induced intoxication.
Subclauses (3)-(7) make changes affecting sentencing in relation
to category 2 offences.
Subclause (3) removes the existence of a special reason that, if
proven, means a court is not bound to impose a certain statutory
minimum sentence, in circumstances where an offender is of
or over the age of 18 years but under 21 years at the time of the
offence, and proves on the balance of probabilities that he or she
has a particular psychosocial immaturity that has resulted in a
substantially diminished ability to regulate his or her behaviour
in comparison with the norm for persons of that age.
Subclause (4) amends section 5(2H)(c)(i) of the Sentencing
Act 1991 by referencing new subsection (2HA) inserted by
subclause (6).
Subclause (5) amends section 5(2H)(c)(ii) of the Sentencing
Act 1991. Section 5(2H)(c)(ii) currently establishes a special
reason of impaired mental functioning that would result in the
offender being subject to significantly more than the ordinary
burden or risks of imprisonment. This amendment substitutes
the words "significantly more" with "substantially and materially
greater". The intention of this change is to require a higher
burden or risk of imprisonment to be established. This change is
also being introduced to section 10A(2)(c)(ii), in relation to the
equivalent special reason for the statutory minimum offences.
Subclause (6) specifies that the court, in consideration of whether
there are substantial and compelling circumstances to find that
a special reasons exists, must find those circumstances to be
exceptional and rare.
Subclause (7) inserts new section 5(2HA) which provides that an
offender cannot rely on their impaired mental functioning at the
time of the offending as a special reason if the impaired mental
functioning is caused solely by self-induced intoxication.
Subclause (7) also inserts new section 5(2HB) which defines
impaired mental functioning and self-induced intoxication for the
purposes of both the category 1 offence and category 2 offence
43
sentencing provisions. These provisions reflect those used in
the context of the statutory minimum provisions in section 10A.
Subclause (8) provides further guidance on when substantial
and compelling circumstances should apply by specifying that
a court must regard general deterrence and denunciation of an
offender's conduct as the principal sentencing purpose, must give
less weight to an offender's personal circumstances than other
matters and must not have regard to the offender's previous good
character (other than an absence of previous convictions or
findings of guilt), an early guilty plea, prospects of rehabilitation
or parity with other sentences.
Subclause (9) inserts new section 5(2J), which provides
for higher courts, when sentencing an offender who was
16 or 17 years old at the time of offending, to have regard
to the requirement that an adult offender being sentenced for
the same offence would be subject to a specified minimum
term of imprisonment or non-parole period, as an additional
sentencing factor. The additional sentencing factor is intended
to ensure that courts have regard to the gravity of such offences.
The amendment will not affect judicial sentencing discretion
or the principle that children should only be detained as a last
resort. This provision mirrors clause 3 of this Bill, which inserts
a similar requirement into the Children, Youth and Families
Act 2005.
Subclause (10) amends section 5(3), (4), (4B) and (4C) of the
Sentencing Act 1991, which reference the existing category 1
offence and category 2 offence sentencing provisions in
section 5(2G) and (2H), to insert references to new subsection
(2GA), inserted by subclause (2).
Clause 77 amends the definition of serious sexual offender in the
Sentencing Act 1991 to capture offenders who have been
convicted and sentenced to a term of imprisonment or detention
in a youth justice centre for the offences of persistent sexual
abuse of a child under the age of 16 and maintaining a sexual
relationship with a child under the age of 16 in former
section 47A of the Crimes Act 1958, as repealed by the Crimes
Amendment (Sexual Offences) Act 2016. The purpose of the
amendment is to ensure that offenders who are convicted of
persistent sexual abuse of a child offences prior to 1 July 2017
will be sentenced as serious sexual offenders.
44
Clause 78 amends section 10AA of the Sentencing Act 1991 that relates
to custodial sentences for certain offences against emergency
workers, custodial officers and youth justice custodial workers
on duty.
Subclause (1) substitutes the heading to section 10AA to ensure
the heading more closely reflects the content of the section.
Subclause (2) allows the court to sentence a young offender
to detention in a youth justice centre for a minimum term
of 6 months for an offence against section 18 of the Crimes
Act 1958 committed against an emergency worker, a custodial
officer or a youth justice custodial worker on duty if the
court finds that no special reason exists and it has received a
pre-sentence report and believes that there are reasonable
prospects for the rehabilitation of the young offender or that
the young offender is particularly impressionable, immature or
likely to be subjected to undesirable influences in an adult prison.
This amendment operates in conjunction with the repeal of the
special reason in current section 10A(2A) by clause 79(5) of
this Bill. This means that young offenders who would currently
be able to rely on that special reason to escape the imposition of a
statutory minimum non-parole period or term of imprisonment,
will after the amendments be required to be sentenced to custody,
though that custody can be in a youth justice centre rather than in
an adult prison.
Subclause (3) amends the definition of emergency worker
to refer to the Department of Environment, Land, Water
and Planning and to also include the Department of Economic
Development, Jobs, Transport and Resources employees
with emergency response duties. The amendment ensures
that people who are employed in either department and who
assist in attending to an emergency are explicitly covered.
Clause 79 amends section 10A of the Sentencing Act 1991 that relates
to special reasons relevant to imposing minimum non-parole
periods and terms of imprisonment.
Subclause (1) inserts a definition of self-induced intoxication
into section 10A(1) of the Sentencing Act 1991.
Subclause (2) removes the existence of a special reason that, if
proven, means a court is not bound to impose a certain statutory
minimum sentence, in circumstances where an offender is of
or over the age of 18 years but under 21 years at the time of
45
the offence, and proves on the balance of probabilities that he or
she has a particular psychosocial immaturity that has resulted in
a substantially diminished ability to regulate his or her behaviour
in comparison with the norm for persons of that age.
Subclause (4) amends section 10A(2)(c)(ii) of the Sentencing
Act 1991. Section 10A(2)(c)(ii) currently establishes a special
reason of impaired mental functioning that would result in the
offender being subject to significantly more than the ordinary
burden or risks of imprisonment. This amendment substitutes
the words "significantly more" with "substantially and materially
greater". The intention of this change is to require a higher
burden or risk of imprisonment to be established. This change is
also being introduced to section 5(2H)(c)(ii), in relation to the
equivalent special reason for category 2 offences.
Subclause (5) specifies that the court, in considering whether
there are substantial and compelling circumstances that justify a
finding that a special reason exists, must find those circumstances
to be exceptional and rare.
Subclause (6) provides that an offender cannot rely on their
impaired mental functioning as a special reason under section
10A(2)(c)(i) of the Sentencing Act 1991 if the impaired mental
functioning is caused solely by self-induced intoxication.
Subclause (7) provides further guidance on when substantial
and compelling circumstances should apply by specifying that a
court must regard general deterrence and denunciation of an
offender's conduct as the principal sentencing purpose, must give
less weight to an offender's personal circumstances than other
matters and must not have regard to the offender's previous good
character (other than an absence of previous convictions or
findings of guilt), an early guilty plea, prospects of rehabilitation
or parity with other sentences.
Clause 80 inserts new section 44A into the Sentencing Act 1991 that
provides for a new sentencing order known as a mandatory
treatment and monitoring order.
New section 44A(1) provides that the court must make a
community correction order with 2 mandatory conditions--
a judicial monitoring condition, and either a treatment and
rehabilitation condition or a justice plan condition--if the court
is sentencing an offender for an offence against section 16, 17
or 18 of the Crimes Act 1958 where the victim is an emergency
46
worker, a custodial officer or youth justice custodial worker
on duty, or an offence against section 317AC or 317AD of
the Crimes Act 1958 if, in the commission of the offence,
an emergency worker, custodial officer or youth justice
worker on duty is injured and the court is satisfied under new
section 5(2GA) of the Sentencing Act 1991 that a mandatory
treatment and monitoring order is appropriate.
New section 44A(2) provides that a court may also attach other
optional community correction order conditions to a mandatory
treatment and monitoring order.
New section 44A(3) specifies that the mandatory conditions of
judicial monitoring and either a treatment and rehabilitation
condition or a justice plan condition that are attached to a
mandatory treatment and monitoring order cannot be varied
under sections 48L or 48M unless the varied condition is as
onerous as, or more onerous than, the previous condition, and
cannot be cancelled.
New section 44A(4) specifies that a mandatory treatment and
monitoring order cannot be combined with a fine.
New section 44A(5) provides that a mandatory treatment and
monitoring order may be combined with a term of imprisonment.
Clause 81 amends section 83AS of the Sentencing Act 1991 to provide
for the consequences of a contravention of a mandatory treatment
and monitoring order.
Subclause (1) amends section 83AS(1) of the Sentencing
Act 1991 by referencing new subsection (1A) inserted by
subclause (2).
Subclause (2) inserts new section 83AS(1A) in the Sentencing
Act 1991 which provides that the court, in dealing with a
contravention of a mandatory treatment and monitoring order
cannot cancel the order and make no further order with respect
to the original offending.
If the court varies the order, the varied order must be as onerous,
or more onerous, than the previous order.
If the court cancels the order, the court must impose a sentence
of imprisonment, or a residential treatment order or a court secure
treatment order or a mandatory treatment and monitoring order
that is as onerous as, or more onerous than, the previous order, or
47
such a mandatory treatment and monitoring order in addition to
a term of imprisonment.
Clause 82 inserts new section 115F into the Sentencing Act 1991 that
provides for reporting obligations in relation to mandatory
treatment and monitoring orders.
Subclause (1) specifies that the Director of Public Prosecutions
and the Chief Commissioner of Police must each give an annual
report to the Attorney-General on the operation of mandatory
treatment and monitoring orders, including the number of
mandatory treatment and monitoring orders made, the number
of contraventions of the mandatory treatment and monitoring
orders and details of orders made in response to contraventions
of the mandatory treatment and monitoring orders.
Subclause (2) specifies that the report must be given to the
Attorney-General as soon as practicable but within 3 months
following the end of each financial year.
Clause 83 inserts transitional provisions at the end of Part 12 of the
Sentencing Act 1991.
New section 168(1) provides that the amendments made to
the definition of category 1 offence by clause 73(1) of the Bill
are prospective and only apply to the sentencing of offenders
for offences alleged to have been committed after the
commencement of those amendments.
New section 168(2) provides that in relation to the amendments
to the definition of category 1 offence by clause 73(1) of the
Bill, if the situation arises where an offence is alleged to have
been committed between 2 dates, and one date is before
commencement and the other date after commencement, the
offence will be considered as occurring before commencement
and the amendments in clause 73(1) will not apply.
New section 168(3) provides that the amendments made to
the definition of category 1 offence by clause 73(2) of the Bill
apply to the sentencing of offenders on or after the day on
which those amendments commence for offences alleged to
have been committed on or after 20 March 2017.
New section 168(4) provides that the amendments made to
the definition of category 2 offence by clause 74(d) and (e) of
the Bill are prospective and only apply to the sentencing of
48
offenders for offences alleged to have been committed after the
commencement of those amendments.
New section 168(5) provides that in relation to the amendments
made to the definition of category 2 offence by clause 74(d)
and (e) of the Bill, if the situation arises where an offence is
alleged to have been committed between 2 dates, and one
date is before commencement and the other date after
commencement, the offence will be considered as occurring
before commencement and the amendments in clause 74(d)
and (e) will not apply.
New section 168(6) provides that amendments that are
consequential to the special reason amendments made by
clauses 76(3) to 76(10), 78(2) or 79 of the Bill are prospective
and only apply to the sentencing of offenders for offences
alleged to have been committed after the commencement of
the relevant provision.
New section 168(7) provides that in relation to amendments that
are consequential to the special reason amendments made by
clauses 76(3) to 76(10), 78(2) or 79 of the Bill, if the situation
arises where an offence is alleged to have been committed
between 2 dates, and one date is before commencement and the
other date after commencement, the offence will be considered
as occurring before commencement of the relevant provision.
New section 168(8) provides that the amendment made to the
definition of serious sexual offender by clause 77 of the Bill
applies to the sentencing of offenders after the commencement
of clause 77, irrespective of when the offence was committed.
New section 168(9) provides that amendments that relate to the
exception to the requirement that a court must impose a custodial
sentence for category 1 offences that are made by clauses 76(1)
and (2), 80, 81 and 82 of the Bill are prospective and only apply
to the sentencing of offenders for offences alleged to have been
committed after the commencement of those clauses.
New section 168(10) provides that in relation to amendments
that relate to the exception to the requirement that a court must
impose a custodial sentence for category 1 offences that are
made by clauses 76(1) and (2), 80, 81 and 82 of the Bill, if
the situation arises where an offence is alleged to have
been committed between 2 dates, and one date is before
commencement and the other date after commencement, the
49
offence will be considered as occurring before commencement
and the amendments in clauses 76(1) and (2), 80, 81 and 82
will not apply.
New section 168(11) confirms that the law that is applicable to
a person being sentenced after a court sets aside the person's
sentencing order on appeal is the law that applied at the time
of the person's original sentence.
Clause 84 updates a reference to the Mental Health Act 2014 and corrects
minor typographical errors in the Sentencing Act 1991.
Division 2--Consequential amendment of Crimes Act 1958
Clause 85 inserts a note at the foot of section 16 of the Crimes Act 1958
to reflect the changes that the Bill makes to the Sentencing
Act 1991 that provide that the offence of causing serious injury
intentionally is a category 1 offence under the Sentencing
Act 1991 when committed against an emergency worker,
custodial officer or youth justice custodial worker on duty and
the offender knew or was reckless as to whether the victim was
such a person.
Clause 86 inserts a note at the foot of section 17 of the Crimes Act 1958
to reflect the changes that the Bill makes to the Sentencing
Act 1991 that provide that the offence of causing serious injury
recklessly is a category 1 offence under the Sentencing Act 1991
when committed against an emergency worker, custodial officer
or youth justice custodial worker on duty and the offender knew
or was reckless as to whether the victim was such a person.
Clause 87 inserts a note at the foot of section 18 of the Crimes Act 1958
to reflect the changes that the Bill makes to the Sentencing
Act 1991 that provide that the offence of causing injury
intentionally or recklessly is a category 1 offence under the
Sentencing Act 1991 when committed against an emergency
worker, custodial officer or youth justice custodial worker on
duty and the offender knew or was reckless as to whether the
victim was such a person.
Clause 88 inserts a note at the foot of section 75A of the Crimes Act 1958
to reflect the changes that the Bill makes to the Sentencing
Act 1991 that provide that the offence of armed robbery is a
category 2 offence under the Sentencing Act 1991 if the offender
had a firearm, or the victim was injured as a result of the offence
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or the offence was committed in company with one or more
persons.
Clause 89 inserts a note at the foot of section 77A of the Crimes Act 1958
to reflect the changes that the Bill makes to the Sentencing
Act 1991 that provide that the offence of home invasion is a
category 2 offence under the Sentencing Act 1991.
Clause 90 inserts a note at the foot of section 77B of the Crimes Act 1958
to reflect the changes that the Bill makes to the Sentencing
Act 1991 that provide that the offence of aggravated home
invasion is a category 1 offence under the Sentencing Act 1991.
Clause 91 inserts a note at the foot of section 79 of the Crimes Act 1958
to reflect the changes that the Bill makes to the Sentencing
Act 1991 that provide that the offence of carjacking is a
category 2 offence under the Sentencing Act 1991.
Clause 92 inserts a note at the foot of section 79A of the Crimes Act 1958
to reflect the changes that the Bill makes to the Sentencing
Act 1991 that provide that the offence of aggravated carjacking
is a category 1 offence under the Sentencing Act 1991.
Clause 93 inserts a note at the foot of section 317AC of the Crimes
Act 1958 to reflect the changes that the Bill makes to the
Sentencing Act 1991 that provide that the offence of
intentionally exposing an emergency worker, a custodial
officer or a youth justice custodial worker to risk by driving
is a category 1 offence under the Sentencing Act 1991 if the
worker or officer on duty is injured.
Clause 94 inserts a note at the foot of section 317AD of the Crimes
Act 1958 to reflect the changes that the Bill makes to the
Sentencing Act 1991 that provide that the aggravated offence
of intentionally exposing an emergency worker, a custodial
officer or a youth justice custodial worker to risk by driving
is a category 1 offence under the Sentencing Act 1991 if the
worker or officer on duty is injured.
Clause 95 inserts a note at the foot of section 318(1) of the Crimes
Act 1958 to reflect the changes that the Bill makes to the
Sentencing Act 1991 that provide that the offence of culpable
driving causing death is a category 2 offence under the
Sentencing Act 1991.
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Clause 96 inserts a note at the foot of section 319(1) of the Crimes
Act 1958 to reflect the changes that the Bill makes to the
Sentencing Act 1991 that provide that the offence of dangerous
driving causing death is a category 2 offence under the
Sentencing Act 1991.
Part 15--Repeal of amending Act
Clause 97 provides for the automatic repeal of this amending Act on
1 October 2010. This repeal does not affect the continuing
operation of these amendments: see section 15(1) of the
Interpretation of Legislation Act 1984.
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