2003

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

Part 2.1 Commercial Arbitration Act 1986 38

Part 2.2 Confiscation of Criminal Assets Act 2003 38

Part 2.3 Coroners Act 1997 39

Part 2.4 Court Security Act 2001 39

Part 2.5 Discrimination Act 1991 40

Part 2.6 Evidence Act 1971 40

Part 2.7 Guardianship and Management of Property Act 1991 40

Part 2.8 Magistrates Court Act 1930 41

Part 2.9 Magistrates Court (Civil Jurisdiction) Act 1982 42

Part 2.10 Mental Health (Treatment and Care) Act 1994 42

Part 2.11 Protection Orders Regulations 2002 43

Part 2.12 Residential Tenancies Act 1997 43

Part 2.13 Royal Commissions Act 1991 44

Part 2.14 Supreme Court Act 1933 44

2003

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

An Act to amend the Evidence (Miscellaneous Provisions) Act 1991, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Evidence (Miscellaneous Provisions) Amendment Act 2003.

This Act commences on a day fixed by the Minister by written notice.

Note 1 The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

Note 2 A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

Note 3 If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act, s 79).

(1) This Act (other than schedule 2) amends the Evidence (Miscellaneous Provisions) Act 1991.

Note The Act is also amended in sch 1.

(2) Schedule 2 amends the Acts and regulations mentioned in it.

In this part:

sexual offence means an offence against the Crimes Act 1900, part 3 (Sexual offences).

Note The Legislation Act, s 189 provides that a reference to an offence against a Territory law includes a reference to an offence against the Criminal Code, pt 2.4 (Extensions of criminal responsibility) or the Crimes Act 1900, s 181 (Accessory after the fact) that relates to the Territory law.

(1) For this division, the complainant, in relation to a sexual offence proceeding, is the person, or any of the people, against whom a sexual offence the subject of the proceeding is alleged, or has been found, to have been committed.

(2) For this division, a sexual offence proceeding is––

(a) a proceeding for a sexual offence; or

(b) a proceeding in relation to bail for a person charged with a sexual offence, whether or not the person is also charged with any other offence; or

(c) a sentencing proceeding for a person convicted of a sexual offence, whether or not the person is also convicted of any other offence; or

(d) an appeal or other review (whether by prerogative writ or otherwise) arising out of a proceeding mentioned in paragraphs (a) to (c); or

(e) an interlocutory proceeding in, or a proceeding ancillary to, a proceeding mentioned in paragraphs (a) to (c).

(3) For subsection (2) (a), a proceeding for a sexual offence includes—

(a) a proceeding for a sexual offence and any other offence; and

(b) a proceeding for a sexual offence and any other offence as an alternative to the sexual offence; and

(c) a proceeding for a sexual offence that may result in a finding of guilt (or committal for trial or sentence) for any other offence.

(4) To remove any doubt, for this section, a proceeding includes a committal proceeding.

(1) This section applies if the complainant gives evidence in a sexual offence proceeding.

(2) The court may order that the court be closed to the public while all or part of the complainant’s evidence (including evidence given under cross-examination) is given.

(3) However, an order under this section does not stop a person nominated by the complainant from being in court when the evidence is given.

(1) A person commits an offence if the person publishes, in relation to a sexual offence proceeding––

(a) the complainant’s name; or

(b) protected identity information about the complainant; or

(c) a reference or allusion that discloses the complainant’s identity; or

(d) a reference or allusion from which the complainant’s identity might reasonably be inferred.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(2) It is a defence to a prosecution for an offence against this section if the person establishes that the complainant consented to the publication before the publication happened.

(3) An offence against this section is a strict liability offence.

(4) In this section:

protected identity information means information about, or allowing someone to find out, the private, business or official address, email address or telephone number of a person.

(1) For this division, the complainant, in relation to a sexual offence proceeding, is the person, or any of the people, against whom a sexual offence the subject of the proceeding is alleged, or has been found, to have been committed.

(2) For this division, a sexual offence proceeding is—

(a) a proceeding for a sexual offence; or

(b) a sentencing proceeding for a person convicted of a sexual offence, whether or not the person is also convicted of any other offence; or

(c) a proceeding under the Protection Orders Act 2001 in relation to a sexual offence; or

(d) a proceeding under the Victims of Crime (Financial Assistance) Act 1983 in relation to a sexual offence; or

(e) a proceeding by way of an inquest or inquiry in the Coroner’s Court in relation to a sexual offence; or

(f) an appeal arising out of a proceeding mentioned in paragraphs (a) to (e).

(3) For subsection (2) (a), a proceeding for a sexual offence includes—

(a) a proceeding for a sexual offence and any other offence; and

(b) a proceeding for a sexual offence and any other offence as an alternative to the sexual offence; and

(c) a proceeding for a sexual offence that may result in a finding of guilt (or committal for trial or sentence) for any other offence.

(4) To remove any doubt, for this section, a proceeding includes a committal proceeding.

This division applies if the complainant is to give evidence in a sexual offence proceeding in a court, whether or not the evidence is to be given on oath, affirmation or otherwise.

(1) If the courtroom where the sexual offence proceeding is heard and another place are linked by an audiovisual link, the complainant’s evidence must be given by audiovisual link from the other place unless the court orders otherwise.

(2) The court may make an order under subsection (1) only if satisfied that––

(a) the complainant prefers to give evidence in the courtroom; or

(b) if the order is not made––

(i) the sexual offence proceeding may be unreasonably delayed; or

(ii) there is a substantial risk that the court will not be able to ensure that the sexual offence proceeding is conducted fairly.

(3) While the complainant is at the other place for the purpose of giving evidence, the place is taken for all purposes to be part of the courtroom.

(1) This section applies if the complainant is to give evidence from a place (the other place) other than the courtroom where the sexual offence proceeding is heard.

(2) The court may make any order it considers appropriate––

(a) to ensure that the sexual offence proceeding is conducted fairly; or

(b) to allow the complainant to identify a person or thing; or

(c) to allow the complainant to take part in a view or to watch a demonstration or experiment; or

(d) to allow part of the sexual offence proceeding to be heard somewhere other than in the courtroom.

(3) The court may make any other order it considers appropriate, including, for example, an order specifying––

(a) who may be with the complainant at the other place; or

(b) who must not be with the complainant at the other place; or

(c) who, in the courtroom, is to be able, or must not be able, to be heard, or seen and heard, by the complainant and people in the other place with the complainant; or

(d) who, in the courtroom, is to be able to see and hear the complainant and anyone else in the other place with the complainant; or

(e) how the audiovisual link is to operate.

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).

(4) The court may order that a person be excluded from the other place while the complainant is giving evidence.

(5) The court may direct that an order under this section apply only to a particular part of the sexual offence proceeding.

(1) The court may make an order under this division in a sexual offence proceeding on its own initiative or on the application of a party to the proceeding or the complainant.

(2) For the purpose of making an order under this division, the court is not bound by the rules of evidence and may inform itself as it considers appropriate.

If the complainant gives evidence from a place other than the courtroom where the sexual offence proceeding is being heard and the proceeding is before a jury, the judge must warn the jury to the effect that the jury should not draw any inference adverse to an accused person in the proceeding from the fact the evidence is given from a place other than the courtroom.

(1) If the complainant’s evidence is not given in accordance with this division, the evidence is not inadmissible for that reason only.

(2) Failure to comply with this division in relation to a sexual offence proceeding does not affect the validity of the proceeding.

(1) For this division, the complainant, in relation to a sexual offence proceeding, is the person, or any of the people, against whom a sexual offence the subject of the proceeding is alleged, or has been found, to have been committed.

(2) For this division, a sexual offence proceeding is––

(a) a proceeding for a sexual offence; or

(b) a proceeding in relation to bail for a person charged with a sexual offence, whether or not the person is also charged with any other offence; or

(c) a sentencing proceeding for a person convicted of a sexual offence, whether or not the person is also convicted of any other offence; or

(d) an appeal arising out of a proceeding mentioned in paragraphs (a) to (c).

(3) For subsection (2) (a), a proceeding for a sexual offence includes—

(a) a proceeding for a sexual offence and any other offence; and

(b) a proceeding for a sexual offence and any other offence as an alternative to the sexual offence; and

(c) a proceeding for a sexual offence that may result in a finding of guilt (or committal for trial or sentence) for any other offence.

(4) To remove any doubt, for this section, a proceeding includes a committal proceeding.

This division applies to evidence in a sexual offence proceeding.

Evidence of the complainant’s sexual reputation is not admissible.

(1) Evidence of the sexual activities of the complainant is not admissible in a sexual offence proceeding without leave of the court dealing with the proceeding.

(2) Subsection (1) does not apply to evidence of the specific sexual activities of the complainant with an accused person in the sexual offence proceeding.

Application for leave under section 51 (General immunity of evidence of complainant’s sexual activities) in a sexual offence proceeding must be made––

(a) in writing; and

(b) if the proceeding is before a jury––in the absence of the jury; and

(c) in the absence of the complainant, if an accused person in the proceeding requests.

(1) The court must not give leave under section 51 (General immunity of evidence of complainant’s sexual activities) unless satisfied that the evidence has substantial relevance to the facts in issue or is a proper matter for cross-examination about credit.

(2) Evidence that relates to, or tends to establish, the fact that the complainant was accustomed to engage in sexual activities is not to be regarded––

(a) as having a substantial relevance to the facts in issue because of any inference it may raise about general disposition; or

(b) as being a proper matter for cross-examination about credit in the absence of special circumstances that would be likely materially to impair confidence in the reliability of the complainant’s evidence.

(3) If the court gives leave under section 51, it must give written reasons for its decision.

In this division:

counselling means counselling, therapy or treatment for an emotional or psychological condition, whether or not the counselling, therapy or treatment is provided for remuneration.

counsellor means a person who—

(a) has undertaken training or study, or has experience, relevant to the process of counselling people who have suffered harm; or

(b) is supervised by someone to whom paragraph (a) applies.

criminal proceeding means—

(a) a proceeding for any offence; or

(b) a sentencing proceeding for a person convicted of any offence; or

(c) an appeal or other review (whether by prerogative writ or otherwise) arising out of a proceeding mentioned in paragraph (a) or (b); or

(d) an interlocutory proceeding in, or a proceeding ancillary to, a proceeding mentioned in paragraphs (a) to (c);

but does not include a preliminary criminal proceeding.

document recording a protected confidence includes––

(a) a copy, reproduction, republication, duplicate or summary of, or extract from, a document recording a protected confidence; and

(b) the part of a document recording a protected confidence; and

(c) the part of a document containing a report, observation, opinion, advice, recommendation or anything else in relation to a protected confidence that is—

(i) made or given by the person who made the protected confidence; or

(ii) made or given by a third party mentioned in section 55 (4) in whose presence the protected confidence is made; and

(d) a copy, reproduction, republication, duplicate or summary of, or extract from, the part of a document mentioned in paragraph (b) or (c).

harm includes––

(a) actual physical harm; and

(b) stress or shock; and

(c) prejudice to privacy; and

(d) emotional or psychological harm, including, for example, shame, humiliation and fear; and

(e) damage to reputation; and

(f) financial loss.

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).

preliminary criminal proceeding means—

(a) a committal proceeding for any offence; or

(b) a proceeding in relation to bail for a person charged with any offence; or

(c) an appeal or other review (whether by prerogative writ or otherwise) arising out of a proceeding mentioned in paragraph (a) or (b); or

(d) an interlocutory proceeding in, or a proceeding ancillary to, a proceeding mentioned in paragraphs (a) to (c).

protected confidence––see section 55.

protected confidence evidence means––

(a) oral or written evidence that would disclose a protected confidence; or

(b) a document recording a protected confidence; or

(c) oral or written evidence that would disclose the contents of a document recording a protected confidence.

(1) For this division, a protected confidence is a counselling communication made by, to or about a victim of a sexual offence (the counselled person).

(2) A counselling communication is a protected confidence even if––

(a) it is made before the happening, or alleged happening, of the acts constituting the sexual offence; or

(b) it is not made in relation to––

(i) the sexual offence or any sexual offence; or

(ii) a condition arising from the sexual offence or any sexual offence.

(3) For this section, a counselling communication is a communication made in circumstances that give rise to a reasonable expectation of confidentiality or a duty of confidentiality—

(a) by the counselled person to a counsellor for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or

(b) to or about the counselled person by the counsellor for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or

(c) by the counselled person to a third party mentioned in subsection (4) for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or

(d) to the counselled person by a third party mentioned in subsection (4) for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or

(e) about the counselled person by a third party mentioned in subsection (4) for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor to—

(i) the counselled person; or

(ii) the counsellor; or

(iii) another third party to whom subsection (4) applies; or

(f) about the counselled person by a counsellor to someone else who has also been a counsellor for the counselled person; or

(g) about the counselled person to a counsellor by someone else who has also been a counsellor for the counselled person.

(4) For this section, in deciding whether a communication was made in circumstances that gave rise to a reasonable expectation of confidentiality, it does not matter that the communication was made in the presence of a third party, if the third party was present to assist or encourage communication between the counselled person and counsellor or otherwise assist the counselling process.

1 a parent, partner, carer, spiritual adviser or other supportive person

2 a person present at the request of the counsellor to take notes of the counselling session

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).

(5) In this section:

sexual offence includes alleged sexual offence.

victim, of a sexual offence, means a person against whom the sexual offence was, or is alleged to have been, committed.

(1) This division applies to a protected confidence made before or after the commencement of this division.

(2) However, this division only applies in relation to—

(a) a preliminary criminal proceeding begun on or after the day this division commences; or

(b) a criminal proceeding, in relation to which there is not a preliminary criminal proceeding, begun on or after the day this division commences; or

(c) a criminal proceeding, in relation to which there is a preliminary criminal proceeding, if the preliminary criminal proceeding began on or after the day this division commences.

(3) Subsection (2) and this subsection expire on 1 January 2005.

(1) A protected confidence must not be disclosed in, or for the purposes of, a preliminary criminal proceeding.

(2) Without limiting subsection (1)––

(a) a person cannot be required (whether by subpoena, application, notice or any other procedure), in or in relation to a preliminary criminal proceeding, to produce a document recording a protected confidence; and

(b) protected confidence evidence is not admissible in the preliminary criminal proceeding.

A person could not be required to disclose a protected confidence in response to a request for production of documents in a preliminary criminal proceeding.

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).

(1) This section applies in relation to a criminal proceeding.

(2) A protected confidence must not be disclosed in, or for the purposes of, the criminal proceeding unless the court dealing with the proceeding gives leave for the disclosure.

(3) Without limiting subsection (2)––

(a) a person cannot be required (whether by subpoena, application, notice or any other procedure), in or in relation to the criminal proceeding, to produce a document recording a protected confidence, unless the court gives leave; and

(b) protected confidence evidence is not admissible in the criminal proceeding, unless the court gives leave.

A person could not be required to disclose a protected confidence in response to a request for production of documents in a criminal proceeding unless the court gives leave.

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).

(1) An application for leave must—

(a) be in writing; and

(b) set out the leave sought; and

(c) set out the applicant’s arguments in support of the application (including the matters mentioned in section 60 (2) (Threshold test––legitimate forensic purpose)).

(2) The application must also––

(a) set out briefly the nature of the protected confidence evidence (if known); and

(b) set out, or be accompanied by a copy of, any relevant documents.

(1) The court must refuse the leave sought under section 59 if not satisfied that the applicant has established a legitimate forensic purpose for seeking the leave.

(2) To establish a legitimate forensic purpose, the applicant must—

(a) identify a legitimate forensic purpose for seeking the leave; and

(b) satisfy the court that there is an arguable case that the evidence in relation to which the leave is sought would materially assist the applicant in his or her case in the proceeding.

(3) The court must decide whether or not to refuse the application under this section before it conducts a preliminary examination of the protected confidence evidence under section 61.

(1) If the court is satisfied that the applicant has established a legitimate forensic purpose for seeking the leave, the court must then conduct a preliminary examination of the protected confidence evidence to decide whether leave should be given.

(2) For the preliminary examination, the court may––

(a) require anyone who has custody or control of a document recording a protected confidence to produce the document to the court for inspection; or

(b) require the counsellor concerned or, if the counsellor provides counselling on behalf of an entity, the principal or another representative of the entity––

(i) to give the court written answers to any questions; or

(ii) to attend the court for oral examination.

(3) The court must not order a person to attend for oral examination under subsection (2) (b) (ii) unless the oral examination of the person is necessary for the effective conduct of the preliminary examination.

(4) Only a person mentioned in subsection (2) may be ordered to answer questions or be examined under this section.

(5) The preliminary examination must be conducted––

(a) in the absence of the public and the jury (if any); and

(b) in the absence of the parties to the criminal proceeding and their lawyers, except to the extent otherwise decided by the court.

(6) Evidence taken at the preliminary examination must not be disclosed to the parties or their lawyers, except to the extent otherwise decided by the court or an appellate court under section 62 (6) (Giving of leave to disclose protected confidence).

(7) A record of the preliminary examination must be made, but must not be made available for public access.

(1) After conducting the preliminary examination of the protected confidence evidence, the court may give leave for the disclosure of the protected confidence only if satisfied that, in the circumstances of the case, the public interest in ensuring an accused person in the criminal proceeding is given a fair trial outweighs the public interest in preserving the confidentiality of the protected confidence.

(2) To remove any doubt, if the court is satisfied under subsection (1) about part of a document only, it may give leave in relation to that part and refuse leave for the rest of the document.

(3) In making a decision under subsection (1), the court must have regard to—

(a) the extent to which disclosure of the protected confidence is necessary for an accused person to make a full defence; and

(b) the public interest in ensuring that victims of sexual offences receive effective counselling or other treatment; and

(c) the extent to which disclosure of protected confidences may dissuade victims of sexual offences from seeking counselling or other treatment or diminish the value of counselling or other treatment; and

(d) whether the evidence will have a substantial probative value to a fact in issue and whether other evidence of similar or greater probative value is available about the matters to which the evidence relates; and

(e) the likelihood that disclosure of the protected confidence will affect the outcome of the case; and

(f) whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias; and

(g) whether the person to or by whom the protected confidence was made objects to the disclosure of the protected confidence; and

(h) the nature and extent of the reasonable expectation of confidentiality for the protected confidence and the potential prejudice to the privacy of anyone, including to the extent to which any interest in confidentiality or privacy has been lessened by the passage of time or the happening of any event since the protected confidence was made.

(4) Subsection (3) does not limit the matters to which the court may have regard.

(5) Leave under this section may be given subject to restrictions.

(6) If the court refuses to give leave, and an appeal is made against the refusal, or a ground of an appeal is the refusal, the appellate court may examine the evidence taken at the preliminary examination under section 61 (Preliminary examination of protected confidence evidence), and may make the orders about the disclosure of the evidence it considers appropriate.

(1) The court may make the orders it considers appropriate to limit possible harm, or the extent of possible harm, to a person who made a protected confidence by the disclosure of protected confidence evidence.

(2) Without limiting subsection (1), the court may––

(a) order that the court be closed to the public while all or part of the protected confidence evidence is presented; or

(b) for a document recording a protected confidence––order that a document be edited as directed by the court or that a copy of a document (or part of a document) be disclosed instead of the original; or

(c) make orders in relation to the suppression or publication of all or any part of the protected confidence evidence; or

(d) for a document recording a protected confidence––make orders about the production or inspection of the document; or

(e) make orders in relation to the disclosure of—

(i) protected identity information about the person who made the protected confidence; or

(ii) information that discloses the identity of the person who made the protected confidence; or

(iii) information from which the identity of the person who made the protected confidence might reasonably be inferred.

(3) This section is in addition to section 40 (Prohibition of publication of complainant’s identity).

(4) In this section:

protected identity information means information about, or allowing someone to find out, the private, business or official address, email address or telephone number of a person.

This division applies whether or not a person who has made a protected confidence consents or does not object to the disclosure of the protected confidence.

(1) This division does not apply in relation to––

(a) information obtained by a doctor because of a physical examination of a victim of a sexual offence; or

(b) any communication made in the course, or because, of such an examination.

(2) In this section:

victim, of a sexual offence, means a person against whom the sexual offence was, or is alleged to have been, committed.

This division does not apply to a communication made for the purpose of—

(a) an investigation by a law enforcement entity into the commission or alleged commission of a sexual offence; or

(b) a preliminary criminal proceeding or criminal proceeding arising from the commission or alleged commission of a sexual offence.

(1) This division does not apply in relation to a communication made, or a document prepared, in the furtherance of the commission of an offence, a fraud or an act that makes a person liable to a civil penalty.

(2) A court may find that a communication was made, or a document was prepared, in the furtherance of the commission of an offence, a fraud or an act if there are reasonable grounds for finding that––

(a) the offence, fraud or act was committed; and

(b) the communication was made, or document prepared, in the furtherance of the offence, fraud or act.

Note The Supreme Court Act 1933, s 68C (3) provides that in a criminal proceeding tried by a judge alone, if a Territory law would otherwise require a warning to be given to a jury in the proceeding, the judge must take the warning into account in considering his or her verdict.

(1) For this division, the complainant, in relation to a sexual offence proceeding, is the person, or any of the people, against whom a sexual offence the subject of the proceeding is alleged to have been committed.

(2) For this division, a sexual offence proceeding is a proceeding for a sexual offence before a jury, and includes any of the following before a jury:

(a) a proceeding for a sexual offence and any other offence;

(b) a proceeding for a sexual offence and any other offence as an alternative to the sexual offence;

(c) a proceeding for a sexual offence that may result in a finding of guilt for any other offence.

If evidence is given by a complainant in a sexual offence proceeding, the judge must not give the jury any warning or suggestion to the effect that the law regards complainants to be an unreliable class of witnesses.

If evidence is given by a child in a sexual offence proceeding, the judge must not give the jury any warning or suggestion to the effect that the law regards children to be an unreliable class of witnesses.

(1) This section applies if, in a sexual offence proceeding, evidence is given, or a question is asked of a witness, that tends to suggest that—

(a) the complainant made no complaint about the alleged offence; or

(b) there was a delay in making a complaint.

(2) The judge must––

(a) give the jury a warning to the effect that the absence of, or the delay in making, the complaint does not necessarily indicate that the allegation that the offence was committed is false; and

(b) tell the jury that there may be good reasons why a victim of a sexual offence may not make, or may hesitate in making, a complaint about the offence.

Note The Evidence Act 1971, s 76C (Evidence of complaint) was repealed by the Evidence (Miscellaneous Provisions) Amendment Act 2003. Section 76C abolished the common law rule that complaint evidence in a sexual offence matter was admissible for the purpose of supporting the complainant’s credit (by showing the complainant’s consistency). The common law is not revived by the repeal of section 76C (see Legislation Act, s 86).

In a sexual offence proceeding, the judge must, in a relevant case, direct the jury that a person is not to be regarded as having consented to a sexual act just because––

(a) the person did not say or do anything to indicate that the person did not consent; or

(b) the person did not protest or physically resist; or

(c) the person did not sustain a physical injury; or

(d) on that or an earlier occasion, the person had consented to engage in a sexual act (whether or not of the same kind) with the accused person or someone else.

In a sexual offence proceeding, the judge must, in a relevant case, direct the jury that, in deciding whether the accused person was under a mistaken belief that a person consented to a sexual act, the jury may consider whether the belief was reasonable in the circumstances.

(1) The Minister may, in writing, approve forms for this Act.

Note For other provisions about forms, see Legislation Act, s 255.

(2) If the Minister approves a form for a particular purpose, the approved form must be used for that purpose.

(3) An approved form is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

(1) The Executive may make regulations for this Act.

Note Regulations must be notified, and presented to the Legislative Assembly, under the Legislation Act.

(2) The regulations may prescribe the amounts, or the way of calculating amounts, payable to a Territory court in relation to the cost of, or incidental to, the provision of an audiovisual link or audio link and ancillary equipment for part 3 (Use of audiovisual links and audio links).

(3) In this section:

audio link—see section 16 (Definitions for pt 3).

Territory court—see section 16 (Definitions for pt 3).

Note 1 The Legislation Act contains definitions and other provisions relevant to this Act.

Note 2 For example, the Legislation Act, dict, pt 1, defines the following terms:

• child

• Childrens Court

• Coroner’s Court

• doctor

• document

• entity

• Executive

• lawyer

• may (see s 146)

• Minister (see s 162)

• must (see s 146)

• proceeding (for this Act, pt 3).

audio link, for part 3 (Use of audiovisual links and audio links)––see section 16.

audiovisual link means a system of 2-way communication linking different places so that a person at any of them can be seen and heard at the other places.

complainant—

(a) for division 4.2 (Sexual offence proceedings—general)—see section 38; and

(b) for division 4.3 (Sexual offence proceedings—giving evidence from places other than courtrooms)––see section 41; and

(c) for division 4.4 (Evidence of complainant’s sexual reputation and activities)––see section 48; and

(d) for division 4.6 (Sexual offence proceedings—directions and warnings to juries)––see section 68.

counsellor, for division 4.5 (Protection of counselling communications)––see section 54.

court, for part 2 (Evidence of children)—see section 5.

criminal proceeding, for division 4.5 (Protection of counselling communications)––see section 54.

document recording a protected confidence, for division 4.5 (Protection of counselling communications)––see section 54.

harm, for division 4.5 (Protection of counselling communications)

––see section 54.

Magistrates Court, for part 2 (Evidence of children)—see section 5.

participating State, for part 3 (Use of audiovisual links and audio links)––see section 16.

preliminary criminal proceeding, for division 4.5 (Protection of counselling communications)––see section 54.

prescribed witness, for part 2 (Evidence of children)—see section 5.

proceeding, for part 2 (Evidence of children)—see section 5.

protected confidence, for division 4.5 (Protection of counselling communications)––see section 55.

protected confidence evidence, for division 4.5 (Protection of counselling communications)––see section 54.

recognised court, for part 3 (Use of audiovisual links and audio links)––see section 16.

sexual offence, for part 4 (Evidence in criminal proceedings)—see section 37.

sexual offence proceeding—

(a) for division 4.2 (Sexual offence proceedings—general)—see section 38; and

(b) for division 4.3 (Sexual offence proceedings—giving evidence from places other than courtrooms)––see section 41; and

(c) for division 4.4 (Evidence of complainant’s sexual reputation and activities)––see section 48; and

(d) for division 4.6 (Sexual offence proceedings—directions and warnings to juries)––see section 68.

State, for part 3 (Use of audiovisual links and audio links)––see section 16.

Territory court, for part 3 (Use of audiovisual links and audio links)––see section 16.

tribunal, in relation to a State, for part 3 (Use of audiovisual links and audio links)––see section 16.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act.

For example, the signpost definition ‘participating State, for part 3 (Use of audiovisual links and audio links)––see section 16.’ means that the term ‘participating State’ is defined in section 16 for part 3.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to the following offence against this Act (see Code, pt 2.1):

• s 40 (Prohibition of publication of complainant’s identity).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

In this part:

court means—

(a) the Supreme Court; or

(b) the Magistrates Court; or

(c) the Coroner’s Court.

Magistrates Court includes the Childrens Court.

prescribed witness means a child.

proceeding means a proceeding in relation to which this part applies.

a closed-circuit television system

an audiovisual link

system

audiovisual link

section 6 (1)

section 8 (1) (Location of prescribed witness giving evidence)

closed-circuit television system

audiovisual link

section 6 (1)

section 8 (1) (Location of prescribed witness giving evidence)

section 5 (a) (i)

section 7 (a) (i) (Application of pt 2)

section 6 (1)

section 8 (1) (Location of prescribed witness giving evidence)

section 6 (1)

section 8 (1) (Location of prescribed witness giving evidence)

(c) by a parent or guardian of the prescribed witness.

18

If a person who was a prescribed witness in a proceeding turns

section 22

section 24

section 23

section 25

section 27

section 29

section 18 or 30

section 20 (Territory courts may take evidence and submissions from outside ACT) or section 32 (Use of link in proceedings)

section 18 (1) or 30 (1)

section 20 (1) (Territory courts may take evidence and submissions from outside ACT) or section 32 (1) (Use of link in proceedings)

s 14

s 16

section 18 (1) or 30 (1)

section 20 (1) (Territory courts may take evidence and submissions from outside ACT) or section 32 (1) (Use of link in proceedings)

(d) the following sections of the Evidence (Miscellaneous Provisions) Act 1991:

• section 9 (Consequential orders);

• section 39 (Evidence given in closed court);

• section 44 (Consequential orders under div 4.3);

• section 52 (c) (Application for leave under s 51);

• section 61 (5) (Preliminary examination of protected confidence evidence);

• section 63 (2) (a) (Ancillary orders for protection of person who made protected confidence); and

section 18 (1) or 30 (1)

section 20 (1) (Territory courts may take evidence and submissions from outside ACT) or section 32 (1) (Use of link in proceedings)

section 18 (1) or 30 (1)

section 20 (1) (Territory courts may take evidence and submissions from outside ACT) or section 32 (1) (Use of link in proceedings)

section 18 (1) or 30 (1)

section 20 (1) (Territory courts may take evidence and submissions from outside ACT) or section 32 (1) (Use of link in proceedings)

(3) In this section:

audiovisual link—see the Evidence (Miscellaneous Provisions) Act 1991, dictionary.

section 18 (1) or 30 (1)

section 20 (1) (Territory courts may take evidence and submissions from outside ACT) or section 32 (1) (Use of link in proceedings)

section 18 (1) or 30 (1)

section 20 (1) (Territory courts may take evidence and submissions from outside ACT) or section 32 (1) (Use of link in proceedings)

section 30 (1)

section 32 (1) (Use of link in proceedings)

section 18 (1) or 30 (1)

section 20 (1) (Territory courts may take evidence and submissions from outside ACT) or section 32 (1) (Use of link in proceedings)

section 18 (1) (Territory courts may take evidence and submissions from outside the Territory) or section 30 (1) (Use of link in proceedings)

section 20 (1) (Territory courts may take evidence and submissions from outside ACT) or section 32 (1) (Use of link in proceedings)

section 18 (1) or 30 (1)

section 20 (1) (Territory courts may take evidence and submissions from outside ACT) or section 32 (1) (Use of link in proceedings)

section 18 (1) or 30 (1)

section 20 (1) (Territory courts may take evidence and submissions from outside ACT) or section 32 (1) (Use of link in proceedings)

section 18 (1) or 30 (1)

section 20 (1) (Territory courts may take evidence and submissions from outside ACT) or section 32 (1) (Use of link in proceedings)

(c) by audiovisual link or audio link;

(4) In this section:

audio link––see the Evidence (Miscellaneous Provisions) Act 1991, section 16 (Definitions for pt 3).

audiovisual link––see the Evidence (Miscellaneous Provisions) Act 1991, dictionary.

(4) In this section:

audiovisual link—see the Evidence (Miscellaneous Provisions) Act 1991, dictionary.

1 For the latest republication of amended laws, see www.legislation.act.gov.au.

2 The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.