Justice Legislation Amendment (Miscellaneous) Act Web viewOCPC-VIC, Word 2007, Template Release 2010 V5.01

Justice Legislation Amendment (Miscellaneous) Act 2013

No. 77 of 2013

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purposes 12 Commencement 3

PART 2—AMENDMENT OF CONFISCATION ACT 1997 4

3 Application for exclusion from restraining order 44 Declaration that restraining order shall be disregarded for

purposes of automatic forfeiture 45 Automatic forfeiture of restrained property on conviction of

certain offences 46 Application for tainted property substitution declaration 57 Application for exclusion from civil forfeiture restraining order 58 Determination of application for civil forfeiture order 69 Application for exclusion from civil forfeiture order 610 Disposal of forfeited property 711 New section 44A inserted 8

44A Certificate of disposal 812 Application for exclusion from forfeiture order 813 Application for exclusion from automatic forfeiture 914 Sex Work and Other Acts Amendment Act 2011—

Schedule 2 offences transitional provision 9

PART 3—AMENDMENT OF CRIMES ACT 1958 10

15 Production of child pornography 1016 Possession of child pornography 11

PART 4—AMENDMENT OF CRIMINAL PROCEDURE ACT 2009 13

17 DPP may discontinue a prosecution without adjudication 13

1

PART 5—AMENDMENT OF PUBLIC PROSECUTIONS ACT 1994 14

18 Delegation by Director 1419 Appointment of Crown Prosecutors 1420 Terms and conditions of Crown Prosecutors 1421 New section 35A inserted 15

35A Senior Crown Prosecutor may act as Chief Crown Prosecutor 15

22 Functions of Director's Committee 1623 Delegation of functions in relation to special decisions 16

PART 6—AMENDMENT OF FAMILY VIOLENCE PROTECTION ACT 2008 AND PERSONAL SAFETY INTERVENTION ORDERS ACT 2010 17

Division 1—Amendment of Family Violence Protection Act 2008 17

24 Section 40 repealed 1725 New section 156A inserted 17

156A Definitions 1726 Surrender of firearms and weapons 1827 Power of police officer to search premises for firearms etc.

without warrant 1828 New section 159A inserted 19

159A Applications for interstate orders—additional requirements for direction or search without warrant 19

29 Warrants to search premises and vehicles 2030 Effect of surrender or seizure of firearm, weapon or other

article if final order made against person 2031 Effect of surrender or seizure of firearm, weapon or other

article if no final order etc. 21

Division 2—Amendment of Personal Safety Intervention Orders Act 2010 22

32 New section 113A inserted 22113A Definitions 22

33 Surrender of firearms and weapons 2234 Power of police officer to search premises for firearms etc.

without warrant 2335 New section 116A inserted 23

116A Applications for interstate orders—additional requirements for direction or search without warrant 23

36 Warrants to search premises and vehicles 2437 Effect of surrender or seizure of firearm, weapon or other

article if final order made against person 2538 Effect of surrender or seizure of firearm, weapon or other

article if no final order etc. 25

PART 7—AMENDMENT OF RACING ACT 1958 26

39 Definitions 2640 New Division 2B inserted in Part I 26

Division 2B—Rules of Racing Victoria 26

5E Definitions 265F Rules of Racing Victoria binding on certain persons 265G Hearings of RV Racing Appeals and Disciplinary

Board 2841 New section 37BA inserted 30

37BA Powers of the Racing Integrity Commissioner conducting an inquiry 30

42 Statute law revision—section 24A amended 31

PART 8—AMENDMENT OF ROAD SAFETY CAMERA COMMISSIONER ACT 2011 32

43 Definitions 3244 New section 13A inserted 32

13A Delegation 32

PART 9—AMENDMENTS RELATING TO SENTENCING ACT 1991 33

45 Proposed section 53 amended 3346 Section 83AH amended 3347 Schedule 3 amended 3348 Statute law revision—section 47 amended 3449 Statute law revision—section 50 amended 3550 Statute law revision—section 83AV amended 35

PART 10—AMENDMENT OF SEX WORK ACT 1994 36

51 Repeal of sections 21L and 21M 36

PART 11—AMENDMENT OF SUMMARY OFFENCES ACT 1966 37

52 Offensive behaviour by a person in a motor vehicle in a declared area 37

PART 12—GENERAL 38

53 Repeal of Act 38═══════════════

ENDNOTES 39

Justice Legislation Amendment (Miscellaneous) Act 2013†

No. 77 of 2013

[Assented to 17 December 2013]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purposes

The main purposes of this Act are—

(a) to amend the Confiscation Act 1997 to clarify the operation of the provisions relating to the forfeiture of property; and

(b) to amend the Crimes Act 1958 to provide protection to staff of the Office of Public Prosecutions and Corrections Victoria from

Victoria

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criminal responsibility under section 68 or 70 when performing their official duties and functions; and

(c) to amend the Criminal Procedure Act 2009 to provide that a notice of the discontinuance of a prosecution for an indictable offence need not be signed personally by the Director of Public Prosecutions; and

(d) to amend the Public Prosecutions Act 1994 in relation to the appointment of Crown Prosecutors and the delegation of powers by the Director of Public Prosecutions; and

(e) to amend the Family Violence Protection Act 2008 and the Personal Safety Intervention Orders Act 2010 to extend the application of enforcement powers relating to firearms and weapons to interstate intervention orders, notices and applications; and

(f) to amend the Racing Act 1958 to expand the application of the Rules of Racing Victoria and to require those Rules to provide for certain matters and to provide further powers to the Racing Integrity Commissioner; and

(g) to amend the Road Safety Camera Commissioner Act 2011 to remove speed detectors from the definition of road safety camera system and to provide for the delegation by the Commissioner of his or her powers under that Act; and

(h) to amend the Sentencing Act 1991 to further provide for transitional arrangements for old community-based orders (fines) under that Act and make other statute law revision amendments; and

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s. 1

(i) to amend the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013 to make minor amendments and make other statute law revision amendments; and

(j) to amend the Sex Work Act 1994 to remove the reporting requirements relating to the banning notice scheme under Part 2A of that Act and repeal the sunset of that Part; and

(k) to amend the Summary Offences Act 1966 to remove the automatic expiration of a declared area notice under section 18(4) of that Act.

2 Commencement

(1) This Part and Parts 2, 3, 4, 5, 8, 10, 11 and 12 and sections 24, 45, 48, 49 and 50 come into operation on the day after the day on which this Act receives the Royal Assent.

(2) Section 47 comes into operation on the day on which section 50 of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013 comes into operation.

(3) Subject to subsection (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(4) If a provision referred to in subsection (3) does not come into operation before 30 November 2014, it comes into operation on that day.

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Section Page

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s. 2

PART 2—AMENDMENT OF CONFISCATION ACT 1997

3 Application for exclusion from restraining orderSee:Act No.108/1997.Reprint No. 6as at1 April 2012and amendingAct Nos20/2012 and 82/2012.LawToday:www.legislation.vic.gov.aus. 3

(1) In section 20(1B) of the Confiscation Act 1997 for "The court" substitute "Subject to subsection (1C), the court".

(2) After section 20(1B) of the Confiscation Act 1997 insert—

"(1C) The court may not extend the period within which an application may be made in respect of property that has been forfeited by or under this Act.".

4 Declaration that restraining order shall be disregarded for purposes of automatic forfeiture

In section 23 of the Confiscation Act 1997—

(a) in paragraph (a) for "section 22(a)" substitute "section 22(1)(a)";

(b) in paragraph (b) for "section 22(c)" substitute "section 22(1)(c)".

5 Automatic forfeiture of restrained property on conviction of certain offences

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Justice Legislation Amendment (Miscellaneous) Act 2013No. 77 of 2013

4

(1) In section 35(2) of the Confiscation Act 1997 omit "or within that period of 60 days such an application is made".

(2) After section 35(2) of the Confiscation Act 1997 insert—

"(2A) For the purposes of subsections (1) and (2), an application under section 20 is not pending unless an application under section 20(1) has been made—

(a) within the period referred to in section 20(1A); or

(b) where, under section 20(1B), the court has extended the period within which the application may be made—within the period as so extended and before the expiry of the period of 60 days referred to in subsection (1).".

6 Application for tainted property substitution declaration

After section 36B(1) of the Confiscation Act 1997 insert—

"(1A) Subsection (1) applies only if an application under section 20(1) has been made—

(a) within the period referred to in section 20(1A); or

(b) where, under section 20(1B), the court has extended the period within which the application may be made—within the period as so extended and before the expiry of the period of 60 days referred to in section 35(1).".

7 Application for exclusion from civil forfeiture restraining order

s. 6Part 12—General


5

(1) In section 36U(3) of the Confiscation Act 1997 for "The court" substitute "Subject to subsection (3A), the court".

(2) After section 36U(3) of the Confiscation Act 1997 insert—

"(3A) The court may not extend the period within which an application may be made in respect of property that has been forfeited by or under this Act.".

8 Determination of application for civil forfeiture order

After section 38(1) of the Confiscation Act 1997 insert—

"(1A) For the purposes of subsection (1), an application for a section 36V exclusion order is not pending unless an application under section 36U(1) has been made—

(a) within the period referred to in section 36U(2); or

(b) where, under section 36U(3), the court has extended the period within which the application may be made—within the period as so extended.".

9 Application for exclusion from civil forfeiture order

(1) In section 40A(3) and (5) of the Confiscation Act 1997 for "The court" substitute "Subject to subsection (5A), the court".

(2) After section 40A(5) of the Confiscation Act 1997 insert—

"(5A) The court may not grant a person leave under subsection (3) or (5) to make an application



6

in respect of property that has been disposed of in accordance with section 44.".

(3) In section 40A(6) of the Confiscation Act 1997—

(a) in paragraph (b), for "forfeited." substitute "forfeited; and";

(b) after paragraph (b) insert—

"(c) to a person prescribed for the purposes of section 44(1).".

10 Disposal of forfeited property


"(3A) Despite subsection (2), the Minister is not prevented from taking the action specified in subsection (2)(a) or (b) after the end of the appeal period but before the final determination of an application under section 49 or 51 for an exclusion order or an application under section 40A for a section 40B exclusion order unless—

(a) the application has been made—

(i) within the period referred to in section 49(2), 51(2) or 40A(2) (as the case may be); or

(ii) after that period, with the leave of the court granted under section 49(3), 51(3) or 40A(3) (as the case may be); or

(b) in the case of an application that has been made pursuant to leave granted under section 40A(4) or 51(4) (as the



7

case may be)—the leave was granted prior to the disposal of the property.".


"(7) For the purposes of this section, the disposal of real property includes the creation of a contractual obligation for the sale of the property.".

11 New section 44A inserted

After section 44 of the Confiscation Act 1997 insert—

"44A Certificate of disposal

(1) The Minister or a person prescribed for the purposes of section 44(1) may issue a certificate certifying that specified property has been disposed of in accordance with section 44.

(2) A certificate issued under subsection (1)—

(a) is admissible in evidence in proceedings under this Act; and

(b) in the absence of evidence to the contrary, is proof that the property has been disposed of in accordance with section 44.".

12 Application for exclusion from forfeiture order

(1) In section 49(3) of the Confiscation Act 1997 for "The court" substitute "Subject to subsection (3A), the court".



8


"(3A) The court may not grant a person leave under subsection (3) to make an application in respect of property that has been disposed of in accordance with section 44.".

(3) In section 49(4) of the Confiscation Act 1997—




13 Application for exclusion from automatic forfeiture

(1) In sections 51(3) and (5) of the Confiscation Act 1997 for "The court" substitute "Subject to subsection (5A), the court".


"(5A) The court may not grant a person leave under subsection (3) or (5) to make an application in respect of property that has been disposed of in accordance with section 44.".

(3) In section 51(6) of the Confiscation Act 1997—




14 Sex Work and Other Acts Amendment Act 2011—Schedule 2 offences transitional provision

In section 186(1) of the Confiscation Act 1997—



9

(a) for "Clause 2(ba)" substitute "Clause 2(ba), (bb), (bc) and (bd)";

(b) for "applies" substitute "apply".

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PART 3—AMENDMENT OF CRIMES ACT 1958

15 Production of child pornographySee:Act No. 6231.Reprint No. 24as at1 July 2013and amendingAct Nos16/2004 and 27/2011.LawToday:www.legislation.vic.gov.aus. 15

After section 68(2) of the Crimes Act 1958 insert—

"(3) Nothing in subsection (1) makes it an offence for any of the following to print or otherwise make or produce child pornography—

(a) any of the following persons—

(i) the Director of Public Prosecutions;

(ii) the Chief Crown Prosecutor, a Senior Crown Prosecutor, a Crown Prosecutor or an Associate Crown Prosecutor appointed under the Public Prosecutions Act 1994;

(iii) the Solicitor for Public Prosecutions appointed under section 42 of the Public Prosecutions Act 1994—

in the exercise or performance of a power, function or duty conferred or imposed on the person under the Public

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Prosecutions Act 1994 or any other Act or at common law;

(b) a member of staff of the Office of Public Prosecutions, in the exercise or performance of a power, function or duty conferred or imposed by or under the Public Prosecutions Act 1994 or any other Act or at common law;

(c) a person engaged or contracted to assist a person referred to in paragraphs (a) or (b) with the production of audio-visual material required in the exercise or performance of a power, function or duty referred to in that paragraph.

(4) Nothing in subsection (1) makes it an offence for an employee of the Department of Justice to produce child pornography if—

(a) the employee produces child pornography for the purposes of their official duties; and

(b) the employee is authorised to do so by the Secretary of the Department of Justice.".

16 Possession of child pornography

After section 70(4) of the Crimes Act 1958 insert—

"(5) Nothing in this section makes it an offence for any of the following to have child pornography in his or her possession—

(a) any of the following persons—

(i) the Director of Public Prosecutions;

(ii) the Chief Crown Prosecutor, a Senior Crown Prosecutor, a



12

Crown Prosecutor or an Associate Crown Prosecutor appointed under the Public Prosecutions Act 1994;

(iii) the Solicitor for Public Prosecutions appointed under section 42 of the Public Prosecutions Act 1994—

when required to do so in the exercise or performance of a power, function or duty conferred or imposed on the person under the Public Prosecutions Act 1994 or any other Act or at common law;

(b) a member of staff of the Office of Public Prosecutions, when required to do so in the exercise or performance of a power, function or duty conferred or imposed by or under the Public Prosecutions Act 1994 or any other Act or at common law;

(c) any other legal practitioner when required to do so in the course of representing the Crown in a proceeding involving or related to subsection (1) or section 68(1); or

(d) a person engaged or contracted to assist a person referred to in paragraphs (a) or (b) with the production of audio-visual material required in the exercise or performance of a power, function or duty referred to in that paragraph.

(6) Nothing in this section makes it an offence for an employee of the Department of Justice to have in his or her possession child pornography if—



13

(a) the employee has the child pornography in his or her possession for the purposes of their official duties; and

(b) the employee is authorised to do so by the Secretary of the Department of Justice.".

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PART 4—AMENDMENT OF CRIMINAL PROCEDURE ACT 2009

17 DPP may discontinue a prosecution without adjudication

See:Act No.7/2009.Reprint No. 3as at1 March 2013and amendingAct Nos12/2013, 22/2013, 32/2013 and 56/2013.LawToday:www.legislation.vic.gov.aus. 17

In section 177(1)(b) and (4) of the Criminal Procedure Act 2009 omit "personally".

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PART 5—AMENDMENT OF PUBLIC PROSECUTIONS ACT 1994

18 Delegation by DirectorSee:Act No.43/1994.Reprint No. 4as at27 September 2012.LawToday:www.legislation.vic.gov.aus. 18

(1) Section 30(1)(b) of the Public Prosecutions Act 1994 is repealed.

(2) For section 30(3) of the Public Prosecutions Act 1994 substitute—

"(3) The Director may, by instrument, delegate to the Chief Crown Prosecutor or to a Crown Prosecutor his or her power to give any authority, sanction or consent required by or under any Act for the commencement of a criminal proceeding.".

19 Appointment of Crown Prosecutors

Section 31(4) of the Public Prosecutions Act 1994 is repealed.

20 Terms and conditions of Crown Prosecutors

For section 32(3A) of the Public Prosecutions Act 1994 substitute—

"(3A) Despite anything to the contrary in subsection (1) or (2), any of the following persons may be appointed under this Act as a Crown Prosecutor—

(a) the Director of Public Prosecutions under the law of another State or a Territory;

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(b) a member of staff of the office of that Director who is an Australian lawyer;

(c) a Crown Prosecutor appointed under the law of another State or a Territory.

(3B) A person appointed under subsection (3A) holds office—

(a) for the term, not exceeding 20 years, specified in the instrument of appointment; or

(b) until the person ceases to be a person referred to in subsection (3A)(a), (b) or (c), if the cessation occurs before the term of appointment expires.".


After section 35 of the Public Prosecutions Act 1994 insert—

"35A Senior Crown Prosecutor may act as Chief Crown Prosecutor

(1) The Director's Committee may appoint a Senior Crown Prosecutor to act as the Chief Crown Prosecutor during any period when the Chief Crown Prosecutor is acting as the Director under section 19B(1).

(2) Subsection (1) does not apply if the Governor in Council has appointed an Acting Chief Crown Prosecutor under section 19.

(3) A Senior Crown Prosecutor, while acting as the Chief Crown Prosecutor under subsection (1)—



17

(a) has the same powers and duties as the Chief Crown Prosecutor; and

(b) may perform any of the functions of the Chief Crown Prosecutor.".

22 Functions of Director's Committee

After section 45A(1)(d) of the Public Prosecutions Act 1994 insert—

"(da) to appoint a Senior Crown Prosecutor to act as the Chief Crown Prosecutor under section 35A(1);".

23 Delegation of functions in relation to special decisions

(1) In section 45H(1) of the Public Prosecutions Act 1994—

(a) for "period to—" substitute "period to the Chief Crown Prosecutor.";

(b) paragraphs (a) and (b) are repealed.

(2) In section 45H(2) of the Public Prosecutions Act 1994—

(a) for "period to—" substitute "period to a Crown Prosecutor appointed under Part 5 as a Senior Crown Prosecutor.";

(b) paragraphs (a) and (b) are repealed.

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18

PART 6—AMENDMENT OF FAMILY VIOLENCE PROTECTION ACT 2008 AND PERSONAL SAFETY

INTERVENTION ORDERS ACT 2010

Division 1—Amendment of Family Violence Protection Act 2008

24 Section 40 repealedSee:Act No.52/2008.Reprint No. 2as at21 August 2013and amendingAct No.52/2013.LawToday:www.legislation.vic.gov.aus. 24

Section 40 of the Family Violence Protection Act 2008 is repealed.


After the heading to Part 7 of the Family Violence Protection Act 2008 insert—

"156A Definitions

In this Part—

interstate interim order means an order that—

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(a) is made under a corresponding interstate law; and

(b) substantially corresponds to an interim order;

interstate order means—

(a) a corresponding interstate order; or

(b) an interstate interim order;

interstate protection notice means a notice issued or order made under a corresponding interstate law by a police officer of that State or Territory to protect a person from family violence.".

26 Surrender of firearms and weapons

(1) For section 158(1)(a) of the Family Violence Protection Act 2008 substitute—

"(a) either—

(i) a family violence safety notice has been issued or a family violence intervention order has been made against a person or a police officer is satisfied, on the balance of probabilities, that there are grounds for issuing a notice or making an order against a person; or

(ii) a police officer intends to serve, or has served, on a person an interstate order or an application for an interstate order made against the person, or an interstate protection notice issued against the person; and".

(2) In section 158(2) of the Family Violence Protection Act 2008, for "The police officer" substitute "Subject to section 159A, the police officer".



20

27 Power of police officer to search premises for firearms etc. without warrant

(1) For section 159(1)(a) of the Family Violence Protection Act 2008 substitute—

"(a) either—

(i) a family violence safety notice has been issued or a family violence intervention order has been made against a person or a police officer is satisfied, on the balance of probabilities, that there are grounds for issuing a notice or making an order against a person; or

(ii) a police officer intends to serve, or has served, on a person an interstate order or an application for an interstate order made against the person, or an interstate protection notice issued against the person; and".

(2) In section 159(2) of the Family Violence Protection Act 2008, for "The police officer" substitute "Subject to section 159A, the police officer".


After section 159 of the Family Violence Protection Act 2008 insert—

"159A Applications for interstate orders—additional requirements for direction or search without warrant

If a police officer intends to serve or has served an application for an interstate order on a person, the police officer must not give a direction under section 158(2) or enter and search premises or a vehicle under section 159(2) unless—



21

(a) the police officer is satisfied, on the balance of probabilities, that the person has committed family violence against a person sought to be protected by the order and is likely to continue to do so or do so again; or

(b) the police officer believes on reasonable grounds that the direction is, or entry and search are, necessary to ensure the safety of a person sought to be protected by the order pending final determination of the application.".

29 Warrants to search premises and vehicles

(1) After section 160(1) of the Family Violence Protection Act 2008 insert—

"(1A) A police officer may apply to a magistrate for the issue of a search warrant in relation to particular premises (including any vehicle on or in those premises) or a particular vehicle located in a public place if—

(a) the police officer intends to serve, or has served, on a person an interstate order or an application for an interstate order made against the person, or an interstate protection notice issued against the person; and

(b) the police officer believes on reasonable grounds that the person is in possession of a firearm, a firearms authority, ammunition or a weapon at premises or in a vehicle, other than premises at which the person resides or has resided or at which the person committed or allegedly committed family violence or a vehicle registered in the person's name.".



22

(2) In section 160(3)(b) of the Family Violence Protection Act 2008, after "subsection (1)(b)(ii)" insert "or (1A)".

30 Effect of surrender or seizure of firearm, weapon or other article if final order made against person

(1) In section 164(1) of the Family Violence Protection Act 2008, after "a final order" insert "or a corresponding interstate order".

(2) In section 164(2) of the Family Violence Protection Act 2008—

(a) after "a final order" insert "or a corresponding interstate order";

(b) in paragraph (b), after "the final order" insert "or the corresponding interstate order".

(3) In section 164(3) of the Family Violence Protection Act 2008, after "a final order" insert "or a corresponding interstate order".

31 Effect of surrender or seizure of firearm, weapon or other article if no final order etc.

In section 165(1) of the Family Violence Protection Act 2008—

(a) in paragraph (b), for "either" substitute "one of the following occurs";

(b) in paragraph (b)(i), after "final order" insert "or corresponding interstate order";

(c) in paragraph (b)(ii), for "time; and" substitute "time; or";

(d) after paragraph (b)(ii) insert—

"(iii) the interstate protection notice expires or is revoked and no application for an interstate order has been made against the person; and".



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Division 2—Amendment of Personal Safety Intervention Orders Act 2010

32 New section 113A insertedSee:Act No.53/2010and amendingAct Nos53/2010, 20/2011, 16/2011, 48/2011, 65/2011 and 52/2013.LawToday:www.legislation.vic.gov.aus. 32

After the heading to Part 5 of the Personal Safety Intervention Orders Act 2010 insert—

"113A Definitions

In this Part—

interstate interim order means an order that—

(a) is made under a corresponding interstate law; and

(b) substantially corresponds to an interim order;

interstate order means—

(a) a corresponding interstate order; or

(b) an interstate interim order.".

33 Surrender of firearms and weapons

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(1) For section 115(1)(a) of the Personal Safety Intervention Orders Act 2010 substitute—

"(a) either—

(i) a personal safety intervention order has been made against a person or a police officer is satisfied, on the balance of probabilities, that there are grounds under section 35(1)(a) or 61(1)(a) for making an order against a person; or

(ii) a police officer intends to serve, or has served, on a person an interstate order or an application for an interstate order made against the person; and".

(2) In section 115(2) of the Personal Safety Intervention Orders Act 2010, for "The police officer" substitute "Subject to section 116A, the police officer".

34 Power of police officer to search premises for firearms etc. without warrant

(1) For section 116(1)(a) of the Personal Safety Intervention Orders Act 2010 substitute—

"(a) either—

(i) a personal safety intervention order has been made against a person or a police officer is satisfied, on the balance of probabilities, that there are grounds under section 35(1)(a) or 61(1)(a) for making an order against a person; or

(ii) a police officer intends to serve, or has served, on a person an interstate order or an application for an interstate order made against the person; and".



25

(2) In section 116(2) of the Personal Safety Intervention Orders Act 2010, for "The police officer" substitute "Subject to section 116A, the police officer".


After section 116 of the Personal Safety Intervention Orders Act 2010 insert—

"116A Applications for interstate orders—additional requirements for direction or search without warrant

If a police officer intends to serve or has served an application for an interstate order on a person, the police officer must not give a direction under section 115(2) or enter and search premises or a vehicle under section 116(2) unless—

(a) the police officer is satisfied, on the balance of probabilities, that the person has—

(i) committed prohibited behaviour against a person sought to be protected by the order and—

(A) is likely to continue to do so or do so again; and

(B) the person's prohibited behaviour would cause a reasonable person to fear for his or her safety; or

(ii) stalked a person sought to be protected by the order and is likely to continue to do so or do so again; or

(b) the police officer believes on reasonable grounds that the direction is, or entry and search are, necessary to

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ensure the safety of a person sought to be protected by the order pending final determination of the application.".

36 Warrants to search premises and vehicles

(1) After section 117(1) of the Personal Safety Intervention Orders Act 2010 insert—

"(1A) A police officer may apply to a magistrate for the issue of a search warrant in relation to particular premises (including any vehicle on or in those premises) or a particular vehicle located in a public place if—

(a) the police officer intends to serve, or has served, on a person an interstate order or an application for an interstate order made against the person; and

(b) the police officer believes on reasonable grounds that the person is in possession of a firearm, a firearms authority, ammunition or a weapon at premises or in a vehicle, other than premises at which the person resides or has resided or at which the person committed or allegedly committed prohibited behaviour or a vehicle registered in the person's name.".

(2) In section 117(3)(b) of the Personal Safety Intervention Orders Act 2010, after "subsection (1)(b)(ii)" insert "or (1A)".

37 Effect of surrender or seizure of firearm, weapon or other article if final order made against person

(1) In section 121(1) of the Personal Safety Intervention Orders Act 2010, after "a final order" insert "or a corresponding interstate order".

(2) In section 121(2) of the Personal Safety Intervention Orders Act 2010—

s. 36s. 37Part 12—General


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(a) after "a final order" insert "or a corresponding interstate order";

(b) in paragraph (b), after "the final order" insert "or the corresponding interstate order".

(3) In section 121(3) of the Personal Safety Intervention Orders Act 2010, after "a final order" insert "or a corresponding interstate order".

38 Effect of surrender or seizure of firearm, weapon or other article if no final order etc.

In section 122(1)(b)(i) of the Personal Safety Intervention Orders Act 2010, after "final order" insert "or corresponding interstate order".

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PART 7—AMENDMENT OF RACING ACT 1958

39 Definitions

In section 3(1) of the Racing Act 1958, insert the following definition—

"relevant person means—

(a) a person who attends a race-meeting for the purpose of horse racing in Victoria; or

(b) a person who participates, whether at a racecourse or any other place, in an activity connected with, or involving, horse racing in Victoria or wagering on horse racing in Victoria;".

40 New Division 2B inserted in Part I

After section 5D of the Racing Act 1958 insert—

"Division 2B—Rules of Racing Victoria

5E Definitions

In this Division—

Australian lawyer has the same meaning as in the Legal Profession Act 2004;

Rules of Racing means the rules, for the time being in force, of Racing Victoria.

5F Rules of Racing Victoria binding on certain persons

(1) The Rules of Racing apply to and may be enforced against—

(a) a person who is the holder of a licence, registration, permit or other authority issued by Racing Victoria; or

(b) subject to subsection (2), a relevant person.

See:Act No.6353.Reprint No. 15as at9 May 2013and amendingAct No.45/2003.LawToday:www.legislation.vic.gov.au



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(2) In relation to a relevant person, the Rules of Racing must provide that, if there is to be an investigation or inquiry in relation to horse racing or wagering or both under the Rules of Racing in which the Rules of Racing may be applied to or enforced against a relevant person—

(a) the investigation or inquiry must be initiated by a Steward; and

(b) in conducting the investigation or inquiry, the Steward must have reasonable grounds to suspect the relevant person—

(i) may have contravened the Rules of Racing; or

(ii) may be involved in a contravention of the Rules of Racing; or

(iii) may have knowledge or possession of information as to a contravention of the Rules of Racing—

because of—

(iv) the person's attendance at a race-meeting of horse racing in Victoria; or

(v) the person's participation in an activity in connection with or involving horse racing in Victoria or wagering on horse racing in Victoria.



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5G Hearings of RV Racing Appeals and Disciplinary Board

The Rules of Racing must provide, in relation to the RV Racing Appeals and Disciplinary Board and proceedings before the RV Racing Appeals and Disciplinary Board under the Rules of Racing, for the following—

(a) that the Board—

(i) may, if the parties to a proceeding have been advised of the date, time and venue of the hearing, conduct the hearing in the presence of the parties or representatives of the parties, or with only some of the parties or representatives of the parties or without any of the parties or representatives of the parties;

(ii) may hear evidence by telephone, closed circuit television or video links;

(iii) may allow the evidence of a Steward or an investigator to be given on the notes of evidence taken by the Steward or investigator;

(iv) may conduct a proceeding on the case stated by the parties to the proceeding;

(v) may conduct the re-hearing of a matter by affidavit, statutory declaration or oral evidence;

(vi) is not required to conduct a hearing as a de novo hearing;



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(vii) may conduct a proceeding in private if the Board considers that it is in the interests of justice, but must otherwise hold its hearing in public;

(viii) may review a decision being appealed in full including in circumstances where only part of the decision has been objected to, sought to be reviewed or appealed;

(ix) may make interim orders;

(x) must give reasons for any decision it makes;

(xi) is bound by the rules of natural justice;

(xii) may otherwise regulate its own procedure;

(b) that the Board may dismiss a proceeding without hearing if the Board is satisfied that the proceeding is frivolous, vexatious, misconceived or lacking substance;

(c) that a party to a proceeding before the Board is entitled to be represented by an Australian lawyer or any other person;

(d) that the Chairperson or Deputy Chairperson of the Board may give directions in relation to the operation or procedure of the Board;

(e) that directions referred to in paragraph (d) must not be inconsistent with this Act or the Rules of Racing.".



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41 New section 37BA inserted

After section 37B of the Racing Act 1958 insert—

"37BA Powers of the Racing Integrity Commissioner conducting an inquiry

(1) Subject to subsection (2), sections 14, 15, 16 and 21A of the Evidence (Miscellaneous Provisions) Act 1958 apply to the Racing Integrity Commissioner conducting an inquiry or investigation under this Part into a controlling body or a person, club or other body licensed or registered in accordance with the rules of a controlling body as if the Racing Integrity Commissioner were a board or a chairman of a board appointed by the Governor in Council.

(2) The powers conferred on the Racing Integrity Commissioner under subsection (1) may be exercised only in respect of the following persons—

(a) a person licensed under the rules of a controlling body;

(b) a person registered under the rules of a controlling body;

(c) a member of the Board of a controlling body;

(d) an employee of a controlling body;

(e) a member of a committee or other managing body of a club registered under the rules of a controlling body;

(f) an employee of a club registered under the rules of a controlling body.



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(3) In subsection (2)(c), Board of a controlling body means—

(a) in the case of horse racing, the Board of Directors of Racing Victoria; or

(b) in the case of harness racing, Harness Racing Victoria constituted under Part II; or

(c) in the case of greyhound racing, Greyhound Racing Victoria established under Part III.".

42 Statute law revision—section 24A amended

In section 24A(6) and (11A) of the Racing Act 1958, for "the Authority" substitute "the Commission".

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34

PART 8—AMENDMENT OF ROAD SAFETY CAMERA COMMISSIONER ACT 2011

43 Definitionss. 43

See:Act No.47/2011and amendingAct Nos47/2011 and 55/2013.LawToday:www.legislation.vic.gov.au

In section 3 of the Road Safety Camera Commissioner Act 2011 in the definition of road safety camera system omit ", speed detectors".


After section 13 of the Road Safety Camera Commissioner Act 2011 insert—

"13A Delegation

The Commissioner may by instrument delegate any power, function or duty of the Commissioner under this Act, other than this power of delegation, to a member of staff employed under section 13.".

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Part 12—General


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PART 9—AMENDMENTS RELATING TO SENTENCING ACT 1991

45 Proposed section 53 amendeds. 45

See:Act No.32/2013.Statute Book:www.legislation.vic.gov.au

In section 53(2) of the Sentencing Act 1991, as proposed to be inserted by section 47 of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013—

(a) after "on the offender, if" insert "the court considers";

(b) in paragraph (a) omit "the court considers".

46 Section 83AH amended

(1) In section 83AH(1) of the Sentencing Act 1991, for "83AC or 83AD" substitute "83AC, 83AD, 83ADA or 83ADB".

(2) In section 83AH(2) of the Sentencing Act 1991, for "83AC or 83AD" substitute "83AC, 83AD, 83ADA or 83ADB".

47 Schedule 3 amended

(1) In clause 10(3) of Schedule 3 to the Sentencing Act 1991 omit "or (1A)" (wherever occurring).

See:Act No.49/1991.Reprint No. 15as at30 September 2013and amendingAct Nos32/2013 and 46/2013.LawToday:www.legislation.vic.gov.au

Part 12—General


36

(2) For clause 10(3A) of Schedule 3 to the Sentencing Act 1991 substitute—

'(3A) Subject to subclause (4) in respect of an offence under subclause (1A)—

(a) if the offence was committed before the commencement of section 50 of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013—

(i) Divisions 1 and 2 of Part 3C apply to the offence as if any reference in Divisions 1 and 2 of that Part to an offence against section 83AD were a reference to an offence under subclause (1A); and

(ii) section 63A(3), as in force immediately before its repeal, applies to the offence as if in that section a reference to a "fine conversion order or a fine default unpaid community work order" were a reference to an "old community-based order (fines)"; and

(b) if the offence was committed on or after the commencement of section 50 of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013, Divisions 1 and 2 of Part 3C apply to the offence as if any reference in Divisions 1 and 2 of that Part to an offence under section 83ADA or 83ADB were a reference to an offence under subclause (1A).'.

48 Statute law revision—section 47 amended

Part 12—General


37

In section 69D(2) of the Sentencing Act 1991, as proposed to be inserted by section 47 of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013, for "69O" substitute "section 69O".

49 Statute law revision—section 50 amended

In section 83ASA(1)(a) of the Sentencing Act 1991, as proposed to be inserted by section 50 of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013, for "is subsection (3)" substitute "in subsection (3)".

50 Statute law revision—section 83AV amended

In section 83AV(2)(e) of the Sentencing Act 1991, for "48I(3)" substitute "section 48I(3)".

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s. 48s. 49Part 12—General


38

PART 10—AMENDMENT OF SEX WORK ACT 1994

51 Repeal of sections 21L and 21MSee:Act No.102/1994.Reprint No. 8as at21 August 2013and amending Act No. 102/1994.LawToday:www.legislation.vic.gov.aus. 51

Sections 21L and 21M of the Sex Work Act 1994 are repealed.

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Part 12—General


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PART 11—AMENDMENT OF SUMMARY OFFENCES ACT 1966

52 Offensive behaviour by a person in a motor vehicle in a declared area

See:Act No.7405.Reprint No. 11as at27 April 2012and amendingAct Nos27/2011, 5/2012, 26/2012, 27/2012 and 32/2013.LawToday:www.legislation.vic.gov.aus. 52

Section 18(6) of the Summary Offences Act 1966 is repealed.

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Part 12—General


40

PART 12—GENERAL

53 Repeal of Act

This Act is repealed on 30 November 2015.Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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41

ENDNOTES

Endnotes


42

† Minister's second reading speech—

Legislative Assembly: 30 October 2013

Legislative Council: 28 November 2013

The long title for the Bill for this Act was "A Bill for an Act to amend the Confiscation Act 1997, the Crimes Act 1958, the Criminal Procedure Act 2009, the Public Prosecutions Act 1994, the Family Violence Protection Act 2008, the Personal Safety Intervention Orders Act 2010, the Racing Act 1958, the Road Safety Camera Commissioner Act 2011, the Sentencing Act 1991, the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013, the Sex Work Act 1994 and the Summary Offences Act 1966 and for other purposes."

Documents

Justice Legislation Amendment (Miscellaneous) Act Web viewOCPC-VIC, Word 2007, Template Release 2010 V5.01