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Justice Legislation Miscellaneous
Amendments Bill 2009
Introduction Print
EXPLANATORY MEMORANDUM
General
The Justice Legislation Miscellaneous Amendments Bill 2009 is an omnibus
Bill which will amend certain Justice Acts and make further consequential
amendments to a number of other Acts. The Bill will amend the Crimes Act
1958 in relation to digital evidence capture; the Criminal Procedure Act
2009 in relation to appeals from interlocutory proceedings; the Major Crime
(Investigative Powers) Act 2004 and the Major Crime Legislation
Amendment Act 2009 in relation to the coercive questioning scheme; the
Sheriff Act 2009 and, consequentially, the Commonwealth Games
Arrangements Act 2001, the EastLink Project Act 2004, the Land
Acquisition and Compensation Act 1986, the Project Development and
Construction Management Act 1994 and the Road Management Act 2004
in relation to the activities of the sheriff and other officers; the
Telecommunications (Interception) (State Provisions) Act 1988 to ensure
that the Act is consistent with the Telecommunications (Interception and
Access) Act 1979 of the Commonwealth; and the Infringements Act 2006,
the Sentencing Act 1991 and, consequentially, the EastLink Project Act
2004, the Magistrates' Court Act 1989 and the Water Efficiency Labelling
and Standards Act 2005 in relation to the infringements system.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill, which are to--
· amend the Crimes Act 1958 in relation to the digital
evidence capture technology used by Victoria Police to
record interviews with suspects in indictable criminal
matters;
561324 1 BILL LA INTRODUCTION 14/10/2009
· amend the Criminal Procedure Act 2009 to replace a
reference to a trial judge in the definition of
interlocutory decision;
· amend the Major Crime (Investigative Powers) Act
2004 and the Major Crime Legislation Amendment
Act 2009 to improve the operation of certain provisions
of those Acts;
· amend the Sheriff Act 2009 to improve the operation of
that Act and make consequential amendments to other
relevant Acts to remove redundant references to the
sheriff and the deputy sheriff;
· amend the Telecommunications (Interception) (State
Provisions) Act 1988 to ensure consistency with the
Telecommunications (Interception and Access) Act
1979 of the Commonwealth;
· amend the Infringements Act 2006 and other relevant
Acts to improve the operation of the infringements
system.
Clause 2 provides for the commencement of the Bill. The provisions of
Part 1 (Preliminary), Part 2 (Amendments to Crimes Legislation),
Part 3 (except for clauses 8 and 10), Part 4 (Amendments to
Sheriff Act 2009 and Related Amendments to Other Acts) and
Part 5 (Amendments to Telecommunications (Interception)
(State Provisions) Act 1988) will commence on the day after the
day on which the Bill receives Royal Assent.
Clauses 8 and 10 of the Bill, regarding certain amendments to
Major Crime Legislation, will commence on a day or days to be
proclaimed. Clauses 8 and 10 must commence by 1 February
2010.
The remaining provisions of the Bill, Part 6 (Amendments to
Infringements Act 2006 and related Amendments to Other Acts)
and Part 7 (Repeal of Amending Act), will commence on a day or
days to be proclaimed but must commence by 1 November 2010.
The period between the default commencement date and the date
that the Bill receives Royal Assent is likely to be less than
12 months.
2
PART 2--AMENDMENTS TO CRIMES LEGISLATION
Clause 3 Subclause (1) amends section 464H(1) of the Crimes Act 1958.
Section 464H(1) governs the admissibility of evidence of a
confession or admission against a person in proceedings for an
indictable offence. The amendment has the effect of applying the
provision to new technology used by investigating officials to
record interviews. The new technology allows the creation of
both an audio only recording and an audiovisual recording.
The recordings are created in a digital format.
Subclause (2) amends section 464H(3)(a) and (b) of the Crimes
Act 1958. Section 464H(3) governs the provision of copies of a
recording of a confession or admission. Following the
amendment, where only an audio recording or only an
audiovisual recording is made, a copy of that recording must be
provided to the person interviewed no later than 7 days after the
recording was made. Where both an audio recording and
audiovisual recording are made, the audio only recording must be
provided to the person interviewed no later than 7 days after the
recording was made. The audiovisual recording must be
provided no later than 7 days after the person is charged with an
offence. The new technology allows a complete audiovisual
recording and an audio only recording of an interview to be
made. Following that interview, and before being charged, the
person interviewed is only entitled to the audio only recording.
When they are charged with an indictable offence, they become
entitled to the full audiovisual recording. Where the person is
interviewed and charged at the same time, the person becomes
entitled to both the audio only and the audiovisual recording at
that time.
The amendment also provides that where a transcript of an
interview is prepared, a copy must be provided to the person
interviewed within 7 days after the transcript has been created.
Subclause (3) inserts a new section 464H(3A) into the Crimes
Act 1958 requiring the investigating official to provide to a
person charged with an offence, or their legal representative, an
additional copy of the audiovisual recording on request.
The amendment is intended to apply in situations where the copy
provided to a person under section 464H(3) is lost or misplaced
or where the person changes lawyers and the new lawyers are
unable to obtain a copy of the recording previously supplied to
the person.
3
Clause 4 inserts new sections 464JA to 464JD into the Crimes Act 1958.
New section 464JA creates new offences in relation to the use
of a recording made under section 464B(5H), 464G or 464H.
The new section 464JA(1) provides for the definitions of
authorised person, publish and recording.
Authorised person includes a member of police personnel (other
than a protective services officer), a person or body engaged to
provide services to Victoria Police in relation to the installation
or maintenance of recording equipment, the Director of Public
Prosecutions for Victoria or a person acting under the authority
of the Director, the Chief Crown Prosecutor or a Crown
Prosecutor or Associate Crown Prosecutor, a person employed in
the Office of Public Prosecutions, a legal practitioner
representing the State or an informant, a legal practitioner
representing a suspect in relation to a recording or a co-accused
of the suspect, an officer or employee of Victoria Legal Aid, a
court or a person acting under the direction of a court, a coroner
or a person acting under the direction of a coroner, the
Commissioner for Law Enforcement Data Security or a person
acting under his or her direction, the Chief Examiner or an
Examiner or a person acting under the direction of the Chief
Examiner or an Examiner, the Director, Police Integrity or a
person acting under his or her direction, the Special
Investigations Monitor or a person acting under his or her
direction, a member of the Legislative Assembly or Legislative
Council or a person acting under his or her direction and a
person, or a person belonging to a class of persons, prescribed by
regulations. Authorised person is relevant for the operation of
the new offences and allows persons legitimately involved in, or
with an interest in, the criminal justice system to make
appropriate use of a recording.
Publish is defined broadly to mean insert in a newspaper or other
publication, disseminate by broadcast, telecast or cinematograph
or bring to the notice of the public or any member of the public
by any other means, including by publication on the Internet.
The definition is intentionally broad to encompass the full range
of use of modern technology that might be capable of copying
and disseminating a recording.
Recording means a recording made in accordance with section
464B(5H), 464G or 464H.
New section 464JA(2) creates an offence where a person
knowingly possesses a recording. The offence will not apply
where the recording is possessed by the suspect, their legal
practitioner, an authorised person acting in the course of their
4
duties or by a person who has a possession of the recording in a
sealed package in the course of their duties as someone engaged
by one of the aforementioned persons to transport the recording
to that person. The penalty that can be imposed is up to a
maximum level 8 imprisonment (12 months).
New section 464JA(3) creates an offence where a person plays a
recording to another person unless it is played for purposes
connected with the legal proceedings to which a recording
relates, the investigation of a death or a fire by a coroner,
disciplinary action against a member of the police force,
disciplinary action against a legal practitioner or the recording
is played in accordance with an order of a court under new
section 464JB, the recording is played in accordance with new
section 464JD or the recording is played by an authorised person
in the course of their duties. The penalty that can be imposed is
up to a maximum level 8 imprisonment (12 months).
New section 464JA(4) creates a new offence where a person
supplies or offers to supply a recording to another person. It does
not apply in relation to the supply of a recording to the suspect,
their legal representative, an authorised person acting in the
course of their duties or a person engaged by one of the
aforementioned persons to transport the recording. The penalty
that can be imposed is up to a maximum level 8 imprisonment
(12 months).
New section 464JA(5) creates an offence where a person copies,
in whole or in part, a recording or permits another person to make
a copy, unless the copying is in accordance with an order of a
court under the new section 464JB. The offence does not apply
in relation to an authorised person acting in the course of their
duties. The penalty that can be imposed is up to a maximum
level 8 imprisonment (12 months).
New section 464JA(6) creates an offence where an authorised
person knowingly or recklessly tampers with, modifies or erases,
in whole or in part, a recording other than in accordance with an
order of a court under new section 464JB. The penalty that can
be imposed is up to a maximum level 8 imprisonment
(12 months).
New section 464JA(7) creates an offence where a person
publishes or causes to be published the whole or any part of a
recording other than in accordance with an order of a court under
new section 464JB. The penalty that can be imposed is up to a
maximum level 7 imprisonment (24 months).
New section 464JA(8) provides that the offences in new sections
464JA(2) to 464JA(7) are prosecuted as summary offences.
5
In relation to the penalty that a court may impose where a person
is found guilty of an offence, section 109(3) of the Sentencing
Act 1991 allows a court to impose (instead of or in addition to
imprisonment) a maximum fine of the number of penalty units
that is 10 times the maximum number of months imprisonment
that may be imposed and/or a community-based order with a
community service condition requiring a maximum number of
hours of unpaid community work calculated in accordance with
Table 3 in section 109(3).
In addition, where an offence is committed by a body corporate,
under section 113D of the Sentencing Act 1991, a court may
impose a fine not greater than 5 times the amount of the
maximum fine that could be imposed on a natural person found
guilty of the same offence.
New section 464JB provides that a court may give directions,
with or without conditions, as to the supply, copying, editing,
erasure, playing or publishing of a recording. Recording has the
same meaning as in new section 464JA.
New section 464JC(2) requires the Chief Commissioner of Police
to keep a copy of a recording in safe custody for a period of
7 years from the making of the recording. Under new section
464JC(3) a court may order the retention of the copy of a
recording for a longer period. The new section 464JC(1) defines
court to be either a court hearing a criminal proceeding to which
the recording relates or, in any other case, the Magistrates' Court.
Under new section 464JC(4) an application can be made by
either a suspect or an authorised person and under new section
464JC(5), the court must not make an order unless satisfied the
suspect and Chief Commissioner of Police have reasonable
notice of the application and have had a reasonable opportunity
to be heard. Recording has the same meaning as in new
section 464JA.
New section 464JD(2) authorises the playing of a recording to a
prescribed person for the purposes of training or teaching that
person or testing the recording equipment. The recording can
only be played where the suspect has been convicted or found
guilty of the charge to which the recording relates, all legal
proceedings in relation to the subject matter of the recording have
been completed and all reasonable measures have been taken to
prevent the identification of the suspect or any other person
(including a victim) from the recording when it is played.
New section 464JD(1) defines a prescribed person as a member
of police personnel (other than a protective services officer), a
person or body engaged to provide services to police in relation
to the installation or maintenance of recording equipment, a legal
6
practitioner or person training to become a legal practitioner or a
person, or a person belonging to a class of persons, prescribed by
regulations. Recording has the same meaning as in new
section 464JA.
Clause 5 inserts new section 614 at the end of Part 7 of the Crimes Act
1958 to provide a transitional provision. Section 464H as
amended by clause 3 of the Bill applies to recordings made on
or after the commencement of clause 3.
Clause 6 substitutes the word "judge" for "trial judge" in the definition of
interlocutory decision in section 3 of the Criminal Procedure
Act 2009. The description "trial judge" refers to a judge once a
trial has commenced but does not include a judge before a trial
has commenced. By amending the definition of interlocutory
decision to omit the word "trial", it will be clear that
interlocutory appeals are available in relation to decisions made
by a judge before a trial commences. This will give effect to the
original intention in relation to the new appeals regime.
PART 3--AMENDMENTS TO MAJOR CRIME
LEGISLATION
Clause 7 inserts new subsection (8) after section 18(7) of the Major
Crime (Investigative Powers) Act 2004. Under section 18 of
the Major Crime (Investigative Powers) Act 2004, a person
who is already held in a prison or a police gaol can be required to
attend an examination before the Chief Examiner by way of an
order made by the Supreme Court or by the Chief Examiner.
Where a person is not held in custody, a person may be required
to attend an examination before the Chief Examiner by way of a
witness summons issued by the Supreme Court under section 14
or a witness summons issued by the Chief Examiner under
section 15.
In the case of an order of the Supreme Court or the Chief
Examiner under section 18, the order has the generally the same
effect as a witness summons in that it requires the person to
attend (be brought before) the Chief Examiner for an
examination.
Clause 7 applies sections 12(2), 13, 16, 37(5) and 49 of the
Major Crime (Investigative Powers) Act 2004 to section 18 as
if a reference in those sections to a witness summons issued
under section 14 or section 15 included a reference to an order
made by the Supreme Court of the Chief Examiner under
section 18.
7
The effect of this amendment is to apply certain provisions of the
Major Crime (Investigative Powers) Act 2004 to a person
already held in custody and brought for an examination under an
order in the same manner as those provisions already apply to a
person not in custody and who is the subject of a witness
summons. These provisions are--
· section 12(2), which requires the Supreme Court to take
steps to, amongst other things, revoke a witness
summons that it has issued in the event that it revokes a
coercive powers order;
· section 13, which requires the Chief Examiner to take
steps to, amongst other things, revoke a witness
summons that he or she has issued in the event that the
Supreme Court revokes a coercive powers order;
· section 16, which provides that a witness summons
directed to a person under the age of 16 years at the date
of issue of the summons has no effect and a person who
claims to have been under 16 at the date of issue of the
summons must notify the issuer of the summons and the
Chief Examiner in writing and provide proof of age;
· section 37(5), which provides that a person under 16
does not contravene the offence of failing to attend for
an examination or failing or refusing to give evidence at
an examination; and
· section 49, which enables the Chief Examiner to charge
the person with contempt or issue an arrest warrant if
contempt is alleged or if the Chief Examiner is satisfied
that a person appearing in answer to a witness summons
is guilty of contempt.
Clause 8 substitutes a reference to "12C" for a reference to "12(2)" in
section 18(8) of the Major Crime (Investigative Powers) Act
2004. Section 18(8) of the Major Crime (Investigative
Powers) Act 2004 will be inserted into the Act by clause 7 of this
Bill. The Bill provides for the commencement of clause 7 on the
day after the day on which the Bill receives Royal Assent.
The Major Crime Legislation Amendment Act 2009 has not
fully come into force as yet and all remaining provisions of that
Act will come into force on 1 February 2010. Section 4 of that
Act amends the Major Crime (Investigative Powers) Act 2004
to substitute a new section 12 and to insert new sections 12A,
8
12B and 12C into the Act, in relation to applications for the
revocation of coercive powers orders. As a consequence of the
changes to the revocation provisions coming into force on the
default commencement date of 1 February 2010 (unless
proclaimed to commence on a earlier date), it is necessary to
provide for the substitution of a reference to the new section 12C
for the equivalent existing section 12(2).
Clause 8 will commence on 1 February 2010, unless proclaimed
to commence earlier, but will, in any event, commence at the
same time as section 4 of the Major Crime Legislation
Amendment Act 2009.
Clause 9 amends section 31 of the Major Crime (Investigative Powers)
Act 2004 in relation to the preliminary requirements that apply to
the Chief Examiner before a witness is asked a question at an
examination or produces a document or other thing. Subclause
(1) of clause 9 substitutes the words "Subject to subsection (2),
before any question is asked" for the current words "Before any
question is asked" as a necessary consequence of the insertion of
new subsection (2) in section 31.
Subclause (2) of clause 9 inserts new subsection (2) into
section 31 of the Major Crime (Investigative Powers) Act
2004 to provide that where a witness attends an examination on
behalf of an authorised deposit-taking institution (within the
meaning of the Banking Act 1959 of the Commonwealth) or a
body corporate that is a corporation, for the sole purpose of
producing documents on behalf of that organisation, the Chief
Examiner will not be required to comply with all of the
preliminary requirements stipulated in section 31. The Chief
Examiner will still be required to comply with the following
preliminary requirements--
· informing the witness of matters relating to the
application of legal professional privilege;
· informing the witness of matters relating to
confidentiality requirements;
· informing the witness, where applicable, of the right to
legal representation or the right to communicate with
certain persons; and
· informing the witness of his or her right to complain to
the special investigations Monitor.
9
Clause 10 inserts the words "and considering any submissions made under
subsection (4A)" into section 43(5)(b) of the Major Crime
(Investigative Powers) Act 2004. Section 43 of the Act enables
the Chief Examiner to direct that, amongst other things, evidence
given before him or her must not be published or communicated
or must not be published or communicated other than in
accordance with the specifications set down by the Chief
Examiner.
Section 43 also provides a mechanism for evidence that has been
given in an examination before the Chief Examiner, and that is
subject to a restriction on publication, to be released to a
defendant or their legal representative in criminal proceedings.
This may occur by the court issuing a certificate, under section
43(4), to the Chief Examiner or the Chief Commissioner, by
requiring that the Chief Examiner or the Chief Commissioner, as
the case may be, must make the evidence available to the court
and by the court then examining the evidence and determining
whether it should be released.
The Major Crime Legislation Amendment Act 2009, at
section 10, includes an amendment to section 43 to enable the
Chief Commissioner, the Chief Examiner or an interested witness
to make submissions to a court that is considering whether to
release evidence subject to a restriction on publication to a
defendant or to their legal representative. Section 10 of the
Major Crime Legislation Amendment Act 2009 has not yet
commenced operation and is subject to a default commencement
date of 1 February 2010.
Accordingly, when section 10 of the Major Crime Legislation
Amendment Act 2009 comes into force, the court, in
considering the release of the evidence that has been made
available by the Chief Examiner or the Chief Commissioner, will
be able to examine the evidence and will also potentially have
heard submissions by the Chief Commissioner, the Chief
Examiner or an interested witness on the question of the release.
The effect of the amendment in clause 10 of this Bill is to ensure
that the court, in considering whether to release evidence subject
to a restriction on publication, will be empowered to make its
determination after both examining the evidence and considering
any submissions that have been made.
Under clause 2 of the Bill, the commencement provision, this
amendment will come into force on 1 February 2010, if not
proclaimed to commence on an earlier date. It is intended
that the amendment will come into force on the same date as
section 10 of the Major Crime Legislation Amendment Act
2009.
10
Clause 11 is an amendment that is closely related to the previous
amendment in clause 10 of the Bill, regarding the restriction on
the publication of evidence provisions of the Major Crime
(Investigative Powers) Act 2004. This Clause will substitute the
words "When the Chief Examiner or the Chief Commissioner
makes evidence available to the Court in accordance with
subsection (4)" for the existing words "Before the court gives a
certificate under subsection (4)".
The effect of this amendment is to ensure that the evidence which
must be provided by the Chief Examiner or the Chief
Commissioner under section 43(4) of the Major Crime
(Investigative Powers) Act 2004 is provided to the court prior to
submissions, if any, being made by the Chief Commissioner, the
Chief Examiner or an interested witness. Therefore, the court
will already be appraised of the content of the evidence when it
receives any submissions. The court will be able to determine
the question of the release of evidence having examined the
evidence and having heard submissions, consistent with the
preceding amendment in clause 10 of the Bill.
PART 4--AMENDMENTS TO SHERIFF ACT 2009 AND
RELATED AMENDMENTS TO OTHER ACTS
Clause 12 makes grammatical amendments to section 13(1) of the Sheriff
Act 2009.
Clause 13 amends section 22 of the Sheriff Act 2009 to insert
subsection (4A), in order to make it clear that the sheriff may
use force and assistance under subsection (4A) despite the
requirement to request the consent of the owner or occupier
under subsection (3). The clause also amends section 22(5) of
the Act to make it clear that the requirement to enter using force
between the hours of 9 a.m. and 5 p.m. for residential premises
only applies to force under section 22.
Clause 14 amends section 27(4)(b) of the Sheriff Act 2009 to remove a
grammatical error, and amends section 27(9)(b) of the Act to
make it clear that a person may only apply for a reinstatement of
a warrant under section 28 if it is a criminal warrant.
Clause 15 inserts a new heading for Division 10 of Part 3 of the Sheriff Act
2009.
Clause 16 inserts a new heading for section 32 of the Sheriff Act 2009.
Clause 17 amends section 35 of the Sheriff Act 2009 to make it clear that
section 35 operates subject to section 13 of the Act.
11
Clause 18 amends section 38(2)(b) of the Sheriff Act 2009 to clarify that,
where the sheriff has to execute against the same person a
warrant to imprison and an infringement warrant, the sheriff must
execute the warrant to imprison, and must not execute the
infringement warrant until the person has been arrested under the
warrant to imprison, or the person is in a police gaol or prison, as
the case may be.
Clause 19 amends section 39(2)(b) of the Sheriff Act 2009 to clarify that,
where the sheriff has to execute against the same person a
warrant imprison and a warrant to arrest, the sheriff must execute
the warrant to imprison. The sheriff must not execute the warrant
to arrest unless one of two scenarios arises. The first is where a
seven day demand relating to the warrant is served on the person
before the warrant to imprison has been received, and the period
under that seven day demand has expired before the warrant to
imprison is executed, or the person has waived the operation of
the unexpired period under the seven day demand. The second is
where the person is released from the legal custody of the Chief
Commissioner of Police or the Secretary (as the case requires)
and the period under a seven day demand relating to the warrant
to arrest and served on the person has expired, or the operation of
the period under that seven day demand has been waived by the
person.
Claude 20 amends section 40(2) of the Sheriff Act 2009, which covers the
situation where the sheriff has to execute against the same person
a warrant to imprison, warrant to arrest and an infringement
warrant. The clause substitutes section 40(2)(b) to make it clear
that the sheriff must execute the warrant to imprison, and must
not execute the infringement warrant until the person has been
arrested under the warrant to imprison, or the person is in a police
gaol or prison, as the case may be. The clause also substitutes
section 40(2)(c) of the Act to clarify that, once the warrant to
imprison has been executed, the sheriff must not execute the
warrant to arrest unless one of two scenarios arises. The first is
where a seven day demand relating to the warrant is served on
the person before the warrant to imprison has been received, and
the period under that seven day demand has expired before the
warrant to imprison is executed, or the person has waived the
operation of the unexpired period under the seven day demand.
The second is where the person is released from the legal custody
of the Chief Commissioner of Police or the Secretary (as the case
requires) and the period under a seven day demand relating to the
warrant to arrest and served on the person has expired, or the
operation of the period under that seven day demand has been
waived by the person.
12
Clause 21 inserts a new heading for section 47 of the Sheriff Act 2009, and
amends section 47 to make it clear that the offence of resisting
the sheriff, deputy sheriff, or a sheriff's officer also applies to
resisting an appropriately trained justice employee in the
execution of a warrant or other process.
Clause 22 inserts a new heading for section 48 of the Sheriff Act 2009, and
amends section 48 to make it clear that the offence of assaulting
the sheriff, deputy sheriff, or a sheriff's officer also applies to
assaulting an appropriately trained justice employee while the
justice employee is performing or exercising a delegated
enforcement function or power.
Clause 23 inserts a new heading for section 49 of the Sheriff Act 2009, and
amends section 49 to make it clear that the offence of escaping
from the lawful custody of the sheriff, deputy sheriff, or a
sheriff's officer also applies to escaping from the lawful custody
of an appropriately trained justice employee.
Clause 24 amends section 50 of the Sheriff Act 2009 to make it clear that
the offence of rescuing or attempting to rescue any property
lawfully seized by the sheriff, deputy sheriff, or a sheriff's officer
also applies to rescuing or attempting to rescue any property
lawfully seized by an appropriately trained justice employee.
Clause 25 inserts a new heading for section 51 of the Sheriff Act 2009,
and amends section 51 to make it clear that the offence of
impersonating the sheriff, deputy sheriff, or a sheriff's officer
also applies to impersonating an appropriately trained justice
employee.
Clause 26 repeals section 39(8) of the Commonwealth Games
Arrangements Act 2001, to remove a redundant reference to the
sheriff or deputy sheriff under the Supreme Court Act 1986.
Clause 27 repeals section 76(8) of the Eastlink Project Act 2004, to
remove a redundant reference to the sheriff or deputy sheriff
under the Supreme Court Act 1986.
Clause 28 repeals section 117(7) of the Eastlink Project Act 2004, to
remove a redundant reference to the sheriff or deputy sheriff
under the Supreme Court Act 1986.
Clause 29 repeals section 28(8) of the Land Acquisition and
Compensation Act 1986, to remove a redundant reference to the
sheriff or deputy sheriff under the Supreme Court Act 1986.
13
Clause 30 repeals section 20G(8) of the Project Development and
Construction Management Act 1994, to remove a redundant
reference to the sheriff or deputy sheriff under the Supreme
Court Act 1986.
Clause 31 repeals clause 45(8) of Schedule 5A to the Road Management
Act 2004, to remove a redundant reference to the sheriff or
deputy sheriff under the Supreme Court Act 1986.
PART 5--AMENDMENTS TO TELECOMMUNICATIONS
(INTERCEPTION) (STATE) (PROVISIONS) ACT 1988
Clause 32 substitutes a reference to the "Telecommunications (Interception
and Access) Act 1979 of the Commonwealth" for the existing
reference to the "Telecommunications (Interception) Act 1979 of
the Commonwealth" in section 1, the Purpose provision, of the
Telecommunications (Interception)(State Provisions) Act
1988 (the State Act).
The purpose of this amendment, and the majority of the
amendments in this Part of the Bill, is to ensure that the
provisions of the State Act are consistent with the provisions of
the primary Australian telecommunications interception
legislation, the Telecommunications (Interception and Access)
Act 1979 of the Commonwealth (the Commonwealth Act). As a
result of some significant amendments to the Commonwealth Act
over recent years, a number of the provisions of the State Act
have become inconsistent with the Commonwealth Act. Part 5 of
the Bill will rectify these inconsistencies.
Clause 33 makes a number of amendments to definitions in section 3(1) of
the State Act.
Clause 33(1) will repeal the definition of Minister. Under the
definition to be repealed, Minister means the Minister
administering the Police Regulation Act 1958. The term
Minister is used a number of times throughout the State Act in
relation to reporting requirements that apply in relation to the
Director, Police Integrity, the Chief Commissioner and the
Special Investigations Monitor. For example, section 7 requires
that the Chief Commissioner must give the Minister a copy of
each warrant, instrument of revocation and other documents and
section 9C which requires that the Director, Police Integrity must
give the Minister a copy of each warrant, instrument of
revocation and other documents.
Provisions of the State Act that relate to the Office of Police
Integrity were originally contained in the Police Regulation Act
1958. In 2008, however, those provisions were repealed from the
14
Police Regulation Act 1958 and the Police Integrity Act 2008
was enacted. Although the Minister for Police and Emergency
Services currently administers both the Police Regulation Act
1958 and the Police Integrity Act 2008, this is not necessarily
always going to be the case.
The repeal of the definition of Minister is accompanied by the
insertion, at subclause (6), of definitions of Police Integrity
Minister and Police Minister. The new definition of Police
Integrity Minister in subclause (6) will make it clear that this
Minister is the Minister administering the Police Integrity Act
2008. The new definition of Police Minister will make it clear
that this Minister is the Minister administering the Police
Regulation Act 1958.
In order to then clarify reporting arrangements under the State
Act, subclause (7) substitutes Police Integrity Minister and
Police Minister, as appropriate, for the existing Minister in
sections 7, 8, 9C, 9D, 10, 12, 15, 20C and 21 of the State Act.
In particular, these amendments will clarify that--
· the Chief Commissioner must give certain documents to
the Police Minister (sections 7(1) and 7(1)(c)(i));
· the Police Minister must provide certain documents
related to the police force to the Minister administering
the Commonwealth Act (section 8);
· the Director, Police Integrity must give certain
documents to the Police Integrity Minister (sections 9C
and 9C(1)(c)(i));
· the Police Integrity Minister must provide certain
documents related to the Office of Police Integrity to the
Minister administering the Commonwealth Act
(section 9D);
· the functions of the Special Investigations Monitor
include reporting to the relevant Minister on results of
inspections of the police force and the Office of Police
Integrity (section 10);
· the Special Investigations Monitor must report on
inspections of the records of the police force to the
Police Minister and on inspections of records of the
Office of Police Integrity to the Police Integrity
Minister (sections 12 and 15);
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· the Special Investigations Monitor's power to report to
the Police Minister or to the Police Integrity Minister
may not be delegated (section 20C); and
· the Police Minister and the Police Integrity Minister
must give the reports on inspections by the Special
Investigations Monitor that are relevant to their agency
to the Minister administering the Commonwealth Act
(section 21).
Other amendments to definitions in section 3(1) of the State Act
are included in the Bill to reflect definitional changes that have
been made to the Commonwealth Act. These changes are--
· substituting Part 2-5 Warrant for the existing Part VI
Warrant (subclause (2));
· substituting "a record other than a copy, that was
obtained" for the existing "a record obtained" in the
definition of restricted record, to reflect the removal of
the requirement to retain copies under the
Commonwealth Act (subclause (3));
· replacing the current definition of the Commonwealth
Act with a definition that makes it clear that the
Commonwealth Act is the Telecommunications
(Interception and Access) Act 1979 of the
Commonwealth (subclause (4));
· replacing the current definition of warrant with a
definition that makes it clear that a reference to a
warrant under the State Act is a reference to a warrant
issued under Part 2-5 of the Commonwealth Act
(subclause (5)).
Clause 34 substitutes new sections 5(a), (b) and (c) for existing
sections 5(a), (b) and (c) of the State Act in relation to the
retention of certain documents by the Chief Commissioner of
Police. Under substituted section 5(a), the Chief Commissioner
will be required to keep each warrant that is issued to the Police
Force rather than a copy that is certified to be a true copy.
Therefore, the Act will be clear that the original warrant must be
retained. The amendment is also consistent with a change to the
Commonwealth Act which has removed the requirement for
copies of warrants to be retained.
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Under substituted section 5(b), the Chief Commissioner will be
required to keep a copy of each notification by the Chief
Commissioner of Police under section 59A of the
Commonwealth Act. The current provision requires the retention
of a copy of each notification under the old provision of the
Commonwealth Act (section 53(1)(b)) and limits the retention to
a copy of the notification of the issue of such a warrant.
As section 59A of the Commonwealth Act allows for "the chief
officer of the agency" (in this instance, the Chief Commissioner)
to give, or notify, the Secretary of the Commonwealth Attorney-
General's Department, in writing, of matters in addition to the
issue of a warrant, this amendment will ensure that the Chief
Commissioner must also retain copies of those other documents.
Under substituted section 5(c), the Chief Commissioner will be
required to keep a copy of each instrument revoking a warrant
issued to the Police Force rather than a copy that is certified to be
a true copy. Therefore, the Act will be clear that the original
warrant must be retained. The amendment is also consistent with
a change to the Commonwealth Act which has removed the
requirement for copies of instruments of revocation to be
retained.
Clause 35 amends section 6 of the State Act, regarding other records that
are to be kept by the Chief Commissioner of Police, to ensure
that the section refers to the correct provisions of, and uses the
same terminology as, the Commonwealth Act. In particular--
· subclause (1) substitutes a reference to "Part 2-5
Warrant" for the existing reference to "Part VI warrant"
in section 6(1)(a) and (ab); and
· subclause (2) substitutes a reference to "lawfully
intercepted information" for the existing reference to
"lawfully obtained information" in section 6(1)(c), (d)
and (e), to ensure consistency with the definition in
section 6E of the Commonwealth Act.
Clause 36 amends section 7 of the State Act, regarding documents that the
Chief Commissioner must give to the Minister, to ensure
consistency with the Commonwealth Act.
Subclause (1) substitutes "3 months" for the existing "2 months"
in section 7(1)(c) of the State Act to ensure that the time that the
Chief Commissioner has to provide an annual report to the
Minister is consistent with the equivalent requirements under
section 96 of the Commonwealth Act, in relation to the provision
of the same report to the Commonwealth Attorney-General.
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Subclause (2) substitutes a reference to "Part 2-8" for the existing
reference to "Part IX" in section 7(1)(c)(i) of the State to rectify
an obsolete cross reference.
Clause 37 substitutes new sections 9A(a), (b) and (c) for new sections
9A(a), (b) and (c) of the State Act in relation to the retention
of certain documents by the Director, Police Integrity.
These amendments mirror the amendments that will be made
by clause 34 of the Bill in relation to the retention of records by
the Chief Commissioner of the Police Force.
Under substituted section 9A(a), the Director, Police Integrity
will be required to keep each warrant that is issued to the Office
of Police Integrity rather than a copy that is certified to be a true
copy. Therefore, the Act will be clear that the original warrant
must be retained. The amendment is also consistent with a
change to the Commonwealth Act which has removed the
requirement for copies of warrants to be retained.
Under substituted section 9A(b), the Director, Police Integrity
will be required to keep a copy of each notification by the
Director, Police Integrity under section 59A of the
Commonwealth Act. The current provision requires the retention
of a copy of each notification under the old provision of the
Commonwealth Act (section 53(1)(b)) and limits the retention to
a copy of the notification of the issue of such a warrant.
As section 59A of the Commonwealth Act allows for "the chief
officer of the agency" (in this instance, the Director, Police
Integrity) to give, or notify, the Secretary of the Commonwealth
Attorney-General's Department, in writing, of matters in addition
to the issue of a warrant, this amendment will ensure that the
Director, Police Integrity must also retain copies of those other
documents.
Under substituted section 9A(c), the Director, Police Integrity
will be required to keep a copy of each instrument revoking a
warrant issued to the Office of Police Integrity rather than a copy
that is certified to be a true copy. Therefore, the Act will be clear
that the original warrant must be retained. The amendment is
also consistent with a change to the Commonwealth Act which
has removed the requirement for copies of instruments of
revocation to be retained.
Clause 38 amends section 9B of the State Act, regarding other records that
are to be kept by the Director, Police Integrity, to ensure that the
section refers to the correct provisions of, and uses the same
terminology as, the Commonwealth Act. The amendments
mirror the amendment in clause 35 of the Bill which relates to
18
other records that must be kept by the Chief Commissioner of
Police. In relation to other records to be kept by the Director
Police Integrity the following amendments will be made by the
Bill--
· subclause (1) substitutes a reference to "Part 2-5
Warrant" for the existing reference to "Part VI warrant"
in section 9B(1)(a) and (b); and
· subclause (2) substitutes a reference to "lawfully
intercepted information" for the existing reference to
"lawfully obtained information" in section 9B(1)(d), (e)
and (f) to ensure consistency with the definition in
section 6E of the Commonwealth Act.
Clause 39 amends section 9C of the State Act, regarding documents that the
Director, Police Integrity must give to the Minister, to ensure
consistency with the Commonwealth Act. These amendments
mirror the amendments in clause 36 of the Bill which relates to
documents that the Chief Commissioner of Police must give to
the Minister.
Subclause (1) substitutes "3 months" for the existing "2 months"
in section 9C(1)(c) of the State Act to ensure that the time that
the Director, Police Integrity has to provide an annual report to
the Minister is consistent with the equivalent requirements under
section 96 of the Commonwealth Act, in relation to the provision
of the same report to the Commonwealth Attorney-General.
Subclause (2) substitutes a reference to "Part 2-8" for the existing
reference to "Part IX" in section 9C(1)(c)(i) of the State to rectify
an obsolete cross reference.
PART 6--AMENDMENTS TO INFRINGEMENTS ACT 2006
AND RELATED AMENDMENTS TO OTHER ACTS
Clause 40 amends section 36 of the Infringements Act 2006 to provide that
Division 6 of Part 2 of that Act does not apply to an infringement
notice to which section 219A of the EastLink Project Act 2004
applies. Division 6 of Part 2 of the Infringements Act 2006
provides for the cancellation of an infringement notice, in respect
of a lodgeable infringement offence, in circumstances where a
person is not aware that they have been served with an
infringement notice. Section 219A of the EastLink Project Act
2004 provides that a person who is not aware that an
infringement notice has been issued against him or her for an
offence against section 204 of that Act, may apply for an
extension of time to deal with the infringement notice.
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Clause 41 amends section 65 of the Infringements Act 2006 to require a
defendant seeking to make a third or subsequent application for
revocation of an enforcement order to obtain leave of the
Magistrates' Court before filing that application.
Clause 42 repeals section 66(6) of the Infringements Act 2006, which
currently prevents an infringements registrar from revoking an
enforcement order if a previous application for revocation has
been made. This amendment is consequent on the amendment
made by clause 41, which enables a defendant to make more than
one application for revocation of an enforcement order.
Clause 43 amends section 76(1) of the Infringements Act 2006 to enable a
natural person to apply for a variation of the prescribed costs or
the prescribed fees payable on an infringement warrant. (A body
corporate, including the director of a body corporate, may not
apply for a payment order under section 76(1).)
Clause 44 amends section 77(1) of the Infringements Act 2006 to enable
an infringements registrar to deal with an application for
variation of costs, and to make an order varying the prescribed
costs or prescribed fees payable on an infringement warrant.
The clause also amends section 77 to provide that an order for
variation of costs or fees, like a payment order, can be set aside
and an infringement warrant issued if the infringements registrar
discovers that the applicant provided false or misleading
information.
The clause also provides that if the infringements registrar makes
a payment order, the registrar may also stay any infringement
warrant issued in respect of that order. The clause further
provides that if the fine is paid in full, the stay will cease and the
warrant expires.
However, if the defendant defaults without paying out the fine
during the life of the warrant (i.e. less than five years since it was
first issued), the warrant remains enforceable until it becomes
null and void under section 94. If the defendant defaults more
than five years from the date of issue of the infringement warrant,
the warrant expires.
Clause 45 amends section 78 of the Infringements Act 2006, which
sets out the consequences of default under a payment order.
Section 78 provides that if a person defaults under a payment
order, the infringements registrar may issue another warrant
against the person, and requires another seven-day notice to be
served unless such a notice has been served within the preceding
six months. Clause 45 makes section 78 subject to new
section 94A (see clause 48), so that an infringement warrant can
20
be stayed when a payment order or an order for an attachment of
earnings or debts is made, and with the stay ceasing in
accordance with sections 94 and 94A of the Infringements Act
2006.
Clause 46 replicates the provision contained in section 58(1A) of the
Magistrates' Court Act 1989 governing the exercise of the
power to issue, suspend, recall and cancel an infringement
warrant in the Infringements Act 2006. The clause also
provides that if an infringement warrant has been recalled and
cancelled, a fresh warrant may be issued for the same purpose.
Clause 47 amends section 94 of the Infringements Act 2006 so that it is
subject to new section 94A. Section 94 provides that an
infringement warrant is null and void if it has not been executed
within five years after it was issued. The amendment made by
this clause makes section 94 subject to any stay under new
section 94A.
Clause 48 inserts new sections 94A and 94B in the Infringements Act
2006.
New section 94A provides that an infringement warrant issued in
respect of an enforcement order may be stayed by an
infringements registrar if a payment order, attachment of earnings
order or attachment of debts order has been made. The stayed
warrant remains enforceable until the stay ceases. If the stay
ceases within the five-year life of the warrant, the warrant
remains enforceable. If the stay ceases five years or more after
the date of issue, the warrant is null and void.
New section 94B provides that if an infringement warrant
becomes null and void under section 94, a fresh warrant can be
issued for the same purpose with leave of the Court. In addition,
the fine in respect of which the warrant was issued can become
enforceable and recoverable again with the leave of the Court.
Clause 49 amends section 114(5) of the Infringements Act 2006, which
provides for a direction for registration non-renewal to continue
to operate until any additional infringements warrants issued
against the defendant after the direction is made are cleared.
The clause provides that the direction not to renew will apply,
whether or not a seven-day notice has been issued in relation to
any subsequent warrant.
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Section 114 provides for a sheriff to direct VicRoads not to
renew or transfer the registration of a vehicle if there are
outstanding infringement warrants against the registered operator,
and for the continuation of a sheriff's direction when additional
warrants are issued against that defendant.
Clause 50 repeals Division 1of Part 10 of the Infringements Act 2006.
Division 1 provides that an attachment of earnings order can be
made if the infringements registrar is satisfied that the person
owes not less than the prescribed amount for one or more
infringement warrants.
Clause 51 re-inserts the provision removed from Division 1 by clause 50
into Division 2 of Part 10 of the Infringements Act 2006.
The effect of this amendment is to clarify that the prescribed
amount is the minimum amount that must be outstanding before
an order for an attachment of earnings or debts can be made.
The amount owing may fall below the prescribed amount after
the order is made, when the defendant is making payments under
the order.
Clause 52 inserts new sections 128A and 128B in the Infringements Act
2006.
New section 128A sets out the priority for allocating money
received under an attachment of earnings order. It provides that
the oldest warrant must be paid out first, regardless of the origin
of the infringement notices to which the order applies.
The clause also provides that if an overpayment occurs, the
infringements registrar may refund the amount of the
overpayment. Alternatively, if there are other outstanding
enforcement orders not subject to the attachment of earnings
order and the person consents, the infringements registrar may
apply the overpayment to those orders.
New section 128B provides that if an infringements registrar
makes an attachment of earnings order, the infringements
registrar may stay an infringement warrant issued against the
person. It further provides that the stay ceases when the order is
discharged.
Clause 53 inserts a new subsection (1A) into section 129 of the
Infringements Act 2006 to provide that an attachment of debts
order can be made if the infringements registrar is satisfied that
the person owes not less than the prescribed amount for one or
more infringement warrants.
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Clause 54 inserts new sections 133A and 133B in the Infringements Act
2006. New section 133A sets out the priority for allocating
money received under an attachment of debts order. As with an
attachment of earnings order, the amount outstanding under the
oldest warrant must be paid out first, regardless of the origin of
the infringement notices to which the order applies. The clause
also provides that if an overpayment occurs, the infringements
registrar may refund the amount of the overpayment or, if there
are other outstanding enforcement orders not subject to the
attachment of debts order and the person consents, apply the
overpayment to those orders.
New section 133B provides that if an infringements registrar
makes an attachment of debts order, the infringements registrar
may stay an infringement warrant issued against the person.
It further provides that the stay ceases when the order is
discharged.
Clause 55 substitutes section 134 of the Infringements Act 2006, removing
section 134(a) which is redundant because it replicates section
136(1)(a). Section136(1)(a) authorises the Court to make an
order that land in which the defendant holds an interest be subject
to a charge if there is one or more outstanding infringement
warrants against the person for not less than prescribed amount.
The prescribed amount is $10 000 under regulation 30 of the
Infringements (General) Regulations 2006.
The clause preserves section 134(b), which provides that Part 11
of the Infringements Act 2006, governing the circumstances in
which a charge over land or the sale of real property can be
sought and made, applies if the suspension of a driver licence or
the non-renewal of a defendant's vehicle registration has been
unsuccessful or unsatisfactory, or is not possible or appropriate.
Clause 56 amends section 161A of the Infringements Act 2006, which sets
out the provisions enabling a prisoner to "call in" outstanding
infringement warrants and serve a period of imprisonment in lieu
of payment. The clause provides that a prisoner may make a
written request to the sheriff for the sheriff to apply to the court
for an order for imprisonment in default. It also provides that the
court may count the time served from the date on which the
prisoner makes the request to the sheriff.
Clause 57 amends section 162 of the Infringements Act 2006 to enable an
attachment of earnings order to be served by registered post on
the defendant's employer. The order must still be served
personally on the defendant.
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Division 2--Amendment of Sentencing Act 1991
Clause 58 amends the Sentencing Act 1991 by inserting a new section 16A
to permit an offender serving a prison sentence to request the
sheriff to apply to the Magistrates' Court to have an order made
for time to be served in respect of any outstanding warrant(s) to
imprison issued for non-payment of court-imposed fines.
This amendment enables a prisoner to call in all outstanding fine-
related warrants and for the sheriff to apply ex parte for a court
order for time to be served in lieu of payment.
Division 3--Other Consequential Amendments
Clause 59 amends section 219A of the EastLink Project Act 2004 to
provide that if the person is a child, the person may elect to have
the matter heard and determined in the Children's Court.
Section 219A(6)(c) of the EastLink Project Act 2004 provides
an extension of time to deal with an infringement notice issued
for non-payment of the EastLink toll if the notice was not served
personally and the recipient was not aware that it had been
issued.
Clause 60 amends the Magistrates' Court Act 1989 to replace references
to "penalty enforcement warrant" in sections 3(1), 38(1)(d)
and 60 of that Act with "infringement warrant".
Clause 61 repeals section 40G of the Water Efficiency Labelling and
Standards Act 2005. This section contained references to now
repealed provisions of the Magistrates' Court Act 1989 and
otherwise duplicates the sections 40 and 40A of the Water
Efficiency Labelling and Standards Act 2005.
PART 7--REPEAL OF AMENDING ACT
Clause 62 provides for the automatic repeal of this amending Bill on
1 November 2011. The repeal of this Bill does not affect in any
way the operation of the amendments made by this Act (see
section 15(1) of the Interpretation of Legislation Act 1984).
24