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SENTENCING ACT 1991 - SECT 105

Definitions

    (1)     In this Part—

"agreement "includes arrangement;

S. 105(1) def. of applicant amended by No. 20/2015 s. 55.

"applicant" means—

        (a)     a person referred to in section 105B(1) who may make an application under that subsection; or

        (b)     if a person referred to in section 105B(1) is unable to make an application under that subsection because of a disability within the meaning of the Equal Opportunity Act 2010 , the person's litigation guardian or guardian within the meaning of the Guardianship and Administration Act 1986 ; or

        (c)     a person referred to in section 105B(2) who may make an application under that subsection in respect of an entitled person who is deceased;

"application" means application under section 105B;

appropriate representative , of a person who was convicted of a historical homosexual offence and is deceased, means—

        (a)     if the person, immediately before death had a spouse or domestic partner—the spouse or domestic partner of the person; or

        (b)     if the person immediately before death did not have a spouse or domestic partner or if the spouse or domestic partner is not available—a son or daughter of the person of or over the age of 18 years; or

        (c)     if a spouse, domestic partner, son or daughter is not available—a parent of the person; or

        (d)     if a spouse, domestic partner, son, daughter or parent is not available—a sibling of the person of or over the age of 18 years; or

        (e)     if a spouse, domestic partner, son, daughter, parent or sibling is not available—a person named in the will of the person as an executor; or

        (f)     if a spouse, domestic partner, son, daughter, parent, sibling or executor is not available—a person who, immediately before the death, was a personal representative of the person; or

        (g)     if a spouse, domestic partner, son, daughter, parent, sibling, executor or personal representative is not available—a person determined to be the appropriate representative under subsection (3);

S. 105(1) def. of Australian Crime Commission inserted by No. 54/2016 s. 34(a).

"Australian Crime Commission "means the Australian Crime Commission (by whatever name described) established by the Australian Crime Commission Act 2002 of the Commonwealth;

"conviction" includes a finding of guilt made by a court, whether or not a conviction is recorded;

S. 105(1) def. of Crimtrac repealed by No. 54/2016 s. 34(b).

    *     *     *     *     *

S. 105(1) def. of data controller amended by No. 65/2016 s. 14.

"data controller", in relation to official records held by—

        (a)     the Supreme Court, means the prothonotary of the Supreme Court; or

        (ab)     the County Court, means the registrar of the County Court; or

        (ac)     the Magistrates' Court, means the principal registrar of the Magistrates' Court; or

        (ad)     the Children's Court, means the principal registrar of the Children's Court; or

        (b)     VCAT, means the principal registrar of VCAT; or

        (c)     Victoria Police, means the Chief Commissioner of Police; or

        (d)     the Office of Public Prosecutions, means the Solicitor for Public Prosecutions appointed under section 42 of the Public Prosecutions Act 1994 ;

"domestic partner", of an entitled person who is deceased, means—

        (a)     a person who was at the date of death of the entitled person in a registered domestic relationship with the entitled person; or

        (b)     an adult person to whom the entitled person was not married but with whom the entitled person was in a relationship as a couple where one or each of them provided personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they were living under the same roof, but does not include a person who provided domestic support and personal care to the entitled person

              (i)     for fee or reward; or

              (ii)     on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);

"entitled person" means—

        (a)     a person referred to in section 105B(1); or

        (b)     a person who was convicted of a historical homosexual offence and is deceased;

"expunged conviction" means a conviction that has become an expunged conviction by force of section 105I;

"historical homosexual offence" means—

        (a)     a sexual offence or a public morality offence; or

        (b)     an offence of attempting to commit a sexual offence or a public morality offence; or

        (c)     an offence of being involved (within the meaning given by section 323(1)(a) or (b) of the Crimes Act 1958 ) in the commission of a sexual offence or a public morality offence; or

        (d)     an offence of inciting or conspiring to commit a sexual offence or a public morality offence;

"legal proceeding" has the same meaning as in the Evidence (Miscellaneous Proceedings) Act 1958 ;

"official records "means records containing information about convictions held by any court, VCAT, Victoria Police or the Office of Public Prosecutions;

"public morality offence" means an offence, other than a sexual offence, as in force at any time—

        (a)     the essence of which is the maintenance of public decency or morality; and

        (b)     by which homosexual behaviour could be punished;

Example

Behaving in an indecent or offensive manner contrary to section 17(1)(d) of the Summary Offences Act 1966 .

"registered medical practitioner" means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student);

"relevant authorisation", in relation to an Act, means a licence, permit, approval, consent, accreditation, exemption or other authorisation under that Act;

"secondary record "means an official record that is a copy, duplicate or reproduction of, or extract from, another existing official record, irrespective of whether those records are held by the same entity or by different entities;

"sexual offence "means an offence as in force at any time by which any form of homosexual conduct, whether consensual or non‑consensual or penetrative or non penetrative, could be punished, whether or not heterosexual conduct could also be punished by the offence;

Example

Buggery contrary to section 68(2) of the Crimes Act 1958 (as in force immediately before the commencement of the Crimes (Sexual Offences) Act 1980 ) or indecent assault on a male person contrary to section 65(3) of the Crimes Act 1928 .

"Victoria Police" has the same meaning as in the Victoria Police Act 2013 .

    (2)     For the purposes of the definition of domestic partner in subsection (1)—

        (a)     registered domestic relationship has the same meaning as in the Relationships Act 2008 ; and

        (b)     in determining whether persons who were not in a registered domestic relationship were domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and

        (c)     a person was not a domestic partner of another person only because they were co‑tenants.

S. 105(3) amended by No. 20/2015 s. 46.

    (3)     For the purposes of paragraph (g) of the definition of "appropriate representative", a person is the appropriate representative if the Secretary determines that the person should be taken to be the appropriate representative of the deceased person because of the closeness of the person's relationship with the deceased person immediately before the deceased person's death.

    (4)     In this Part, a reference to an expunged conviction includes a reference to—

        (a)     the charge to which the expunged conviction relates; and

        (b)     any investigation or legal process associated with that charge or the conviction.

S. 105AA inserted by No. 65/2016 s. 15.



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