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This is a Bill, not an Act. For current law, see the Acts databases.
2014
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Contents
Page
2014
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Crimes Legislation Amendment Bill 2014
A Bill for
An Act to amend legislation about crimes, and for other purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Crimes Legislation Amendment Act 2014
.
(1) This Act (other than section 32) commences on the day after its notification day.
Note The naming and commencement provisions automatically commence on
the notification day (see
, s 75 (1)).
(2) Section 32 commences 3 months after this Act’s notification day.
This Act amends the following legislation:
•
•
•
•
•
•
•
•
•
.
Part 2 Children and Young People Act 2008
4 Orders to bring young detainee before
court etc
Section 102 (2), new note
insert
Note A court may also order the director-general to bring a young detainee before the court in a civil proceeding if the young detainee consents (see s 876A).
insert
876A Power of court to bring young detainee before it—civil proceeding
(1) For a civil proceeding, a court may order the director-general to bring a young detainee in a detention place before the court, if the young detainee consents, and to return the young detainee to the detention place in accordance with the order.
(2) In this section:
civil proceeding—see the Evidence Act 2011
, dictionary, part 1.
court includes the ACAT.
6 Offences against
Act—application of Criminal Code etc
Section 7A, note 1
insert
• s 61B (Intimate observations or capturing visual data etc)
insert
61B Intimate observations or capturing visual data etc
(1) A person (the offender) commits an offence if—
(a) the offender—
(i) observes another person with the aid of a device; or
(ii) captures visual data of another person; and
(b) a reasonable person would, in all the circumstances, consider the observing or capturing of visual data to be—
(i) an invasion of privacy; and
(ii) indecent.
Maximum penalty: 200 penalty units, imprisonment for 2 years or both.
(2) Strict liability applies to subsection (1) (b) (i).
(3) Absolute liability applies to subsection (1) (b) (ii).
(4) It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that the defendant—
(a) believed on reasonable grounds that the other person consented to the defendant observing or capturing visual data of the other person; or
(b) did not know, and could not reasonably be expected to have known, that the observing or capturing of visual data of the other person was without consent.
Note The defendant has a legal burden in relation to the matters mentioned in s (4) (see Criminal Code
, s 59).
(5) A person (the offender) commits an offence if—
(a) the offender observes with the aid of a device or captures visual data of—
(i) another person’s genital or anal region; or
(ii) for a female or a transgender or intersex person who identifies as a female—the breasts; and
Example
using a mobile phone to take photos of a woman’s underwear under her skirt or down the front of her blouse
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act
, s 126 and s 132).
(b) a reasonable person would, in all the circumstances, consider the observing or capturing of visual data to be an invasion of privacy.
Maximum penalty: 200 penalty units, imprisonment for 2 years or both.
(6) Strict liability applies to subsection (5) (b).
(7) It is a defence to a prosecution for an offence against subsection (5) if the defendant proves that the defendant—
(a) believed on reasonable grounds that the other person consented to the defendant observing or capturing visual data of the other person’s genital or anal region or breasts; or
(b) did not know, and could not reasonably be expected to have known, that the observing or capturing of visual data of the other person’s genital or anal region or breasts was without consent.
Note The defendant has a legal burden in relation to the matters mentioned in s (7) (see Criminal Code
, s 59).
(8) Subsections (1) and (5) do not apply to—
(a) an observation made by viewing data that was previously captured; or
(b) an observation or capturing of visual data—
(i) by a law enforcement officer acting reasonably in the performance of the officer’s duty; or
(ii) by a licensed security provider acting reasonably in carrying on a security activity authorised under the security provider’s licence; or
(iii) of a child or other person incapable of giving consent in circumstances in which a reasonable person would regard the observing or capturing of visual data as acceptable; or
Example
taking a photograph or movie of a naked newborn relative
(iv) for a scientific, medical or educational purpose; or
Example
a patient consents to her doctor taking an image of a mole on her breast for the purpose of showing another doctor for a second opinion about the mole
(v) by a person in the course of reasonably protecting premises owned by the person; or
(vi) in circumstances or for a purpose prescribed by regulation.
(9) Nothing in subsection (8) prevents a person being found guilty of an offence under or because of the Criminal Code
, part 2.4 (Extensions of criminal responsibility).
(10) In this section:
breasts, of a female or a transgender or intersex person who identifies as a female, means the person’s breasts whether covered by underwear or bare.
capture visual data—a person captures visual data of another person if the person captures moving or still images of the other person by a camera or any other means in such a way that—
(a) a recording is made of the images; or
(b) the images are capable of being transmitted in real time with or without retention or storage in a physical or electronic form; or
(c) the images are otherwise capable of being distributed.
device does not include spectacles, contact lenses or a similar device when used by someone with impaired sight to overcome the impairment.
genital or anal region, of a person, means the person’s genital or anal region whether covered by underwear or bare.
law enforcement officer means—
(a) a police officer; or
(b) a member of the staff of the Australian Crime Commission established by
the
(Cwlth).
licensed security provider means a person who holds a licence
under the
.
security activity—see the Security Industry Act 2003
, section 7.
Part 4 Crimes (Forensic Procedures) Act 2000
8 Interview friend
Section 16
(1)
substitute
(1) This section applies to a suspect, serious offender or volunteer who is—
(a) a child; or
(b) an incapable person; or
(c) an Aboriginal or Torres Strait Islander person.
9 Securing the presence of suspects at
hearings—suspect not in custody
Section 37 (1)
substitute
(1) If the suspect is not in custody, the Magistrates Court may, on the application of a police officer, issue—
(a) a summons for the appearance of the suspect at the hearing of the application; or
(b) a warrant for the arrest of the suspect to bring the suspect before the court for the hearing of the application.
omit
magistrate
substitute
Magistrates Court
11 Procedure at hearing of application
for order
Section 38 (3)
omit
or incapable person
substitute
, incapable person or Aboriginal or Torres Strait Islander person
12 Action to be taken on making of
orders
Section 39 (1) (d)
omit
or incapable person
substitute
, incapable person or Aboriginal or Torres Strait Islander person
13 Applications for interim
orders
Section 42 (5)
omit
or incapable person
substitute
, incapable person or Aboriginal or Torres Strait Islander person
14 Rules for carrying out forensic
procedures—transgender and intersex people
Section 49B
(3)
omit
or incapable person
substitute
, incapable person or Aboriginal or Torres Strait Islander person
substitute
54 Sex of person carrying out or helping carry out forensic procedures
(1) If a forensic procedure is to be carried out on a relevant person, the person carrying it out, and anyone asked under section 55 to help carry it out, must, if practicable, be of the same sex as the relevant person.
(2) Subsection (1) does not apply—
(a) to the taking of a handprint, fingerprint, footprint or toeprint; or
(b) to any other non-intimate forensic procedure that may be carried out without—
(i) touching the relevant person; or
(ii) requiring the relevant person to remove any clothing (other than his or her overcoat, coat, jacket, gloves, socks, shoes and hat); or
(c) if the relevant person consents to a person other than a person of the same sex as the relevant person carrying out, or helping to carry out, the forensic procedure.
(3) If the person on whom a forensic procedure is to be carried out is a volunteer—
(a) the volunteer may ask that a person other than a person of the same sex as the volunteer carry out, or help carry out, the procedure; and
(b) if practicable, any such request must be complied with, despite subsection (1).
(4) However, if the relevant person is a child—
(a) the person carrying out the forensic procedure must ask the child, before the procedure is carried out, if the child wants a person of a particular sex to carry out, or help carry out, the procedure; and
(b) if the child asks for a person of a particular sex to carry out, or help carry out, the forensic procedure, a person of that sex must, if practicable, carry out, or help carry out, the procedure.
16 Presence of interview friend or
lawyer while forensic procedure is carried out
Section 57 (1) and
(3)
omit
or incapable person
substitute
, incapable person or Aboriginal or Torres Strait Islander person
17 Securing the presence of serious
offender at hearing—offender in custody
Section 77A (2)
omit
A magistrate
substitute
The Magistrates Court
18 Securing the presence of serious
offender at hearing—offender not in custody
Section 77B
(2)
omit
A magistrate
substitute
The Magistrates Court
omit
magistrate
substitute
Magistrates Court
20 Procedure at hearing of application
for order
Section 77C (3)
omit
or incapable person
substitute
, incapable person or Aboriginal or Torres Strait Islander person
omit
magistrate
substitute
court
omit
A magistrate
substitute
The court
23 Powers of lawyers and interview
friends
Section 103 (1) (b)
omit
or incapable person
substitute
, incapable person or Aboriginal or Torres Strait Islander person
24 Obligation of investigating police
officers relating to electronic recordings
Section 104 (2) (b)
omit
or incapable person
substitute
, incapable person or Aboriginal or Torres Strait Islander person
25 Dictionary, new definition of Aboriginal or Torres Strait Islander person
insert
Aboriginal or Torres Strait Islander person means a person who—
(a) is a descendant of an Aboriginal person or Torres Strait Islander person; and
(b) identifies as an Aboriginal person or Torres Strait Islander
person.
Part 5 Crimes (Sentence Administration) Act 2005
26 Board may reject parole application
without inquiry
Section 122 (2), new example
before the examples, insert
Example of when board might be satisfied application is frivolous, vexatious or misconceived
The board previously rejected an application because the offender’s
proposed accommodation after release was unsuitable. The offender’s later
application proposes the same unsuitable accommodation without including new
information or new reasons.
Part 6 Crimes (Sentencing) Act 2005
27 Victim impact statements—form
and contents
New section 51 (5A)
insert
(5A) The statement may contain photographs, drawings or other images.
28 Meaning of supervision
condition
Section 133U (2), definition of director-general,
paragraph (b)
substitute
(b) in any other case—the director-general responsible, under the Crimes (Sentence Administration) Act 2005
, for the administration of the good behaviour order to which the direction relates.
29 Meaning of accommodation
order
Section 133Y (2), definition of director-general,
paragraph (b)
substitute
(b) in any other case—the director-general responsible, under the Crimes (Sentence Administration) Act 2005
, for the young offender to whom the direction relates.
Part 7 Crimes (Surveillance Devices) Act 2010
30 What must a retrieval warrant
contain?
New section 22 (4)
insert
(4) Unless sooner executed or revoked, a retrieval warrant remains in force
for the period stated in the warrant.
31 False statement by officer of
body
Section 351 (1) (a)
omit
particular; or
substitute
particular; and
insert
Part 6.4A Display of drug pipes
621A Display of drug pipes
(1) An occupier of a retail or wholesale outlet commits an offence if the occupier displays to customers at the outlet a drug pipe within, or adjacent to, the outlet.
Maximum penalty: 50 penalty units.
(2) In this section:
drug pipe—
(a) means—
(i) a device, or components that together make a device, for the purpose or apparent purpose of smoking, or drawing or inhaling smoke or fumes from, a controlled drug; or
(ii) a device that is intended to be used for the purpose or apparent purpose of smoking, or drawing or inhaling smoke or fumes from, a controlled drug, but that requires an adjustment or modification to be used for that purpose; and
(b) includes a device commonly known as—
(i) a hash pipe; or
(ii) an ice pipe; or
(iii) a bong.
occupier, of retail or wholesale outlet, means a person having the management or control, or otherwise being in charge, of the outlet.
retail outlet means premises where goods are for sale by retail.
wholesale outlet means premises where goods are available for
sale exclusively by wholesale.
33 Authority to possess and use
firearms temporarily
New section 14 (2) (ba)
insert
(ba) the person is at least the age prescribed by regulation for section 85 (Minors firearms licences—applications); and
omit
a registered user of the firearm
substitute
authorised under subsection (2A) to possess or use the firearm
insert
(2A) A person is authorised to possess or use a firearm if—
(a) the person is an authorised instructor for an approved club; and
(b) the firearm is owned by the approved club; and
(c) the person has possession or use of the firearm for the purpose of giving instruction.
36 Unregulated
firearms—forfeiture
Section 30 (2)
omit
director-general
substitute
registrar
37 Authority conferred by
licence—additional matters
New section 53 (2A) and (2B)
insert
(2A) A licence that authorises the licensee to have possession or use of a registered firearm also authorises the licensee to use the registered firearm at an approved shooting range for 1 or more of the following purposes:
(a) to test the firearm;
(b) to adjust the sights on the firearm;
(c) to develop and refine self-loaded ammunition;
(d) to receive instruction and certification in the use of the firearm for an employment-related purpose.
Example—employment-related purpose
a person with an employee licence under the Security Industry Act 2003
wanting to maintain that licence
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act
, s 126 and s 132).
(2B) For subsection (2A), a licensee need not be a member of the shooting club that operates the approved shooting range.
38 Return or forfeiture of things
seized
Section 217 (4)
omit
director-general
substitute
registrar
Part 10 Prohibited Weapons Act 1996
39 Evidentiary provisions
New
section 17 (2)
insert
(2) The registrar may delegate the registrar’s functions under subsection (1) to a police officer.
Note 1 For the making of delegations and the exercise of delegated functions, see the Legislation Act
, pt 19.4.
Note 2 In particular, the delegation must be in writing (see Legislation Act
, s 232).
Note 3 A certificate signed by a delegate of the registrar is taken to have been signed by the registrar (see Legislation Act
, s 239 (4)).
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 27 November 2014.
2 Notification
Notified under the
on 2014.
3 Republications of amended laws
For the latest republication of amended laws, see www.legislation.act.gov.au
.
© Australian Capital Territory 2014
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