Criminal Organisations Control and Other Acts
Amendment Act 2014
No. 55 of 2014
TABLE OF PROVISIONS
Section
Page
PART 1—PRELIMINARY
1
2
1
Purposes
Commencement
1
4
PART 2—CONFISCATION
6
Division 1—Amendments relating to civil forfeiture
6
3
4
5
6
7
8
9
10
11
12
13
Definitions
6
Property may be subject to both civil forfeiture restraining order
and restraining order
6
Application for civil forfeiture restraining order
6
Determination of application for civil forfeiture restraining order 7
Court directions to provide information
7
Application for exclusion from civil forfeiture restraining order
7
Determination of application for exclusion from civil forfeiture
restraining order
8
Priority given to payment of restitution or compensation
9
Application for civil forfeiture order
9
Application for exclusion from civil forfeiture order
9
Determination of application for exclusion from civil forfeiture
order
10
Division 2—Amendments relating to hardship
14
15
16
11
Determination of application for forfeiture order
Determination of application for civil forfeiture order
Relief from hardship
11
11
11
Division 3—Amendments relating to serious drug offender regime
12
Subdivision 1—Amendment of Confiscation Act 1997
12
17
18
19
Definitions
Purposes for which a restraining order may be made
New section 15A inserted
15A
Property may be subject to both restraining order and
civil forfeiture restraining order
i
12
14
14
14
Section
20
21
22
23
24
25
26
27
28
29
Page
Application for restraining order
Procedure on application
Determination of application
Court directions to provide information
Application for exclusion from restraining order
New section 22A inserted
22A
Determination of exclusion application—serious drug
offence restraining order
New section 24 inserted
24
Protected property not to be included in serious drug
offence restraining order
Duration and setting aside of restraining order
Application for freezing order
New Division 4 of Part 3 inserted
Division 4—Automatic forfeiture of property of serious
drug ffender
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
36GA Automatic forfeiture of restrained property on
declaration that person is serious drug offender
36GB Declaration that property has been forfeited
Property may be subject to both civil forfeiture restraining order
and restraining order
Effect of forfeiture
Disposal of forfeited property
New section 45A inserted
45A
Relief from automatic forfeiture of property of serious
drug offender
Discharge of automatic forfeiture in respect of an interest
New sections 53 and 54 inserted
53
Application for exclusion from automatic forfeiture of
property of serious drug offender
54
Determination of application from exclusion from
automatic forfeiture of property of serious drug
offender
Application to the Minister for return of property or payment of
value
Liability under forfeiture or pecuniary penalty order to be
satisfied by trustee
Order for examination
Application for production order
Application for search warrant for property-tracking documents
Application for monitoring order
Issuing information notices—authorised member of police force
Interstate orders and search warrants
Crime Prevention and Victims' Aid Fund
Conversion costs
Appeals
ii
15
16
16
17
17
18
18
19
19
20
22
23
23
23
25
25
26
26
27
27
29
30
30
32
33
33
33
34
34
34
35
35
35
35
35
Section
47
Page
New section 188 inserted
188
Transitional—Criminal Organisations Control and
Other Acts Amendment Act 2014
Subdivision 2—Amendment of Sentencing Act 1991
48
49
Division 5—Serious drug offender
37
Declaration by court that person is serious drug
offender
Trafficking in a drug or drugs of dependence—large
commercial quantity
Cultivation of narcotic plants—large commercial quantity
Conspiring
Aiding and abetting etc.
Division 4—Amendments relating to management of restrained
property
54
55
56
57
58
59
37
37
37
Subdivision 3—Amendment of Drugs, Poisons and Controlled
Substances Act 1981
51
52
53
36
Sentencing guidelines
New Division 5 of Part 4 inserted
89DI
50
36
Restraining orders
Further orders
Civil forfeiture restraining orders
Further orders
Liability under forfeiture or pecuniary penalty order to be
satisfied by trustee
Provisions concerning trustee
37
38
38
38
38
39
39
39
40
40
41
41
41
PART 3—CRIMINAL ORGANISATIONS CONTROL
43
Division 1—Amendment of Criminal Organisations Control
Act 2012
43
60
61
62
63
64
65
66
67
68
69
Definitions
Section 4 repealed
Meaning of prospective member
Form and content of application
Objection to application for declaration
Court may make declarations
New section 21 substituted
21
Objections to be disregarded if respondent consents to
declaration
Form of declaration
Duration of declaration
Application for revocation of declaration
iii
43
44
44
44
45
45
48
48
48
48
48
Section
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
Page
Section 29 substituted
29
Determination of application for revocation of
declaration in respect of organisation
New section 29A inserted
29A
Determination of application for revocation of
declaration in respect of individual
When revocation of declaration takes effect
Court may make control order
Content of control orders—declared organisations
Winding up of incorporated associations that are prohibited
from operating under a control order
New section 51A inserted
51A
Objections to be disregarded if respondent consents to
control order
Form of control order
Notice of making of control order that applies to a declared
organisation
Application for variation or revocation of control order or
ancillary order
Section 58 substituted
58
Determination of application for variation or
revocation—control order
New section 58A inserted
58A
Determination of application for variation or
revocation—ancillary order
Effect of registration of corresponding declaration
Information to be kept on register
Annual report
New sections 135A, 135B and 135C inserted
135A Consent
135B Costs
135C Adjournment before costs order made
Schedule amended
Division 2—Amendment of Firearms Act 1996
87
88
89
90
91
92
93
Definitions
General discretion of Chief Commissioner to refuse a longarm
or handgun licence
General discretion of Chief Commissioner to refuse a junior
licence
General discretion of Chief Commissioner to refuse a firearms
collectors licence
General discretion of Chief Commissioner to refuse a firearms
heirlooms licence
General discretion of Chief Commissioner to refuse a firearms
ammunition collectors licence
Review of decision not to issue a licence
iv
49
49
51
51
51
52
55
56
56
56
57
57
58
59
59
60
60
61
61
61
61
61
63
63
64
65
65
66
66
66
67
67
67
Section
94
95
96
97
98
99
100
101
102
Page
General discretion of Chief Commissioner to refuse to renew a
licence or to alter or vary the conditions of a licence
Power of Chief Commissioner to cancel licence under this Part
Provisional general category handgun licences
General discretion of Chief Commissioner to refuse a dealers
licence
General discretion of Chief Commissioner to refuse to renew a
dealers licence
Power of Chief Commissioner to cancel a dealers licence
General discretion of Chief Commissioner to refuse to issue a
permit to acquire
Permit to store handguns
Power of delegation
Division 3—Amendment of Fortification Removal Act 2013
103
104
Definitions
Schedule amended
107
68
69
69
69
70
70
70
70
70
Division 4—Amendment of Major Crime (Investigative Powers)
Act 2004
105
106
67
68
68
Definitions
New section 3AA inserted
3AA Meaning of organised crime offence
Application for order
71
71
71
71
72
PART 4—CRIMINAL PROCEDURE
73
Division 1—Amendment of Criminal Procedure Act 2009 relating
to committal proceedings
73
108
109
110
111
Contents of case direction notice
Leave required to cross-examine other witnesses
Cross-examination of witnesses
New section 132A inserted
132A Leave to cross-examine witness on different issue
Division 2—Other amendments to Criminal Procedure Act 2009
112
113
114
115
116
117
118
Definitions
Summons for summary offence may be served by ordinary
service
New section 17A inserted
17A
Service of summons for traffic camera offence
When full brief must be served
Documents to be provided by police at first mention hearing
Ordinary service
New section 444 inserted
444
Transitional provision—Criminal Organisations
Control and Other Acts Amendment Act 2014
v
73
74
75
75
75
76
76
77
77
77
78
78
78
78
78
Section
Page
PART 5—MENTAL IMPAIRMENT AND UNFITNESS TO BE
TRIED
81
Division 1—Amendment of Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997
81
119
120
121
122
123
124
125
Definitions
Application to courts and proceedings
Application to Magistrates' Court
New section 5A inserted
5A
Application to Children's Court
Orders pending investigation into fitness
Amendment of section heading
New Part 5A inserted
81
82
82
83
83
83
84
84
PART 5A—PROCEEDINGS IN THE CHILDREN'S
COURT AND APPEALS FROM THOSE PROCEEDINGS
84
Division 1—General
84
38G
38H
38I
38J
84
85
86
87
Application of Part
Definitions
Constitution of Children's Court
Remand in custody
Division 2—Unfitness to stand trial
87
38K
38L
38M
38N
87
88
88
38O
38P
38Q
38R
38S
38T
38U
When is a child unfit to stand trial?
Presumptions, standard of proof etc.
Committals
Reservation of question of fitness to stand trial by
Children's Court
Time limit for investigation into fitness
Children's Court may make orders pending
investigation into fitness
Procedure on investigation
What happens after an investigation?
Abridgment of adjournment
What happens at the end of an adjournment?
Appeal in relation to fitness to stand trial
89
90
90
91
92
93
94
94
Division 3—Special hearings
96
38V
38W
38X
38Y
38Z
96
96
97
98
Purpose of special hearings
Procedure at special hearings
Findings at special hearings
Effect of findings
Court may make orders pending making of supervision
order
vi
99
Section
Page
Division 4—Defence of mental impairment
38ZA
38ZB
38ZC
38ZD
38ZE
38ZF
Defence of mental impairment
Presumptions, standard of proof etc.
When may the question of mental impairment be
raised?
Effect of finding of not guilty because of mental
impairment
Appeal against mental impairment finding
Appeal against unconditional release
Division 5—Disposition of children declared to be liable to
supervision
38ZG
38ZH
38ZI
38ZJ
38ZK
38ZL
38ZM
38ZN
38ZO
38ZP
38ZQ
Application of Division
Supervision orders
How long does a supervision order last?
Appeal against supervision order
Non-compliance with non-custodial supervision order
Emergency power of apprehension
Warrant to arrest child breaching non-custodial
supervision order who leaves Victoria
Application for variation or revocation of supervision
order
Variation of custodial supervision orders on
application or review
Variation or revocation of non-custodial supervision
orders on application or review
Transfer of supervision order for review by County
Court
Division 6—Reports as to supervision and victim impact
statements
126
127
128
129
130
131
38ZR Court must order report as to supervision
38ZS Who prepares a report?
38ZT Contents of report
38ZU Report to be filed with court
38ZV Access to reports
38ZW Victim impact statements
Principle to be applied
Matters to which the court is to have regard
Certificate of available services
Inadmissibility of evidence in other proceedings
Extension of time for filing notice of appeal
Transitional provision inserted
15
Transitional provision—Criminal Organisations
Control and Other Acts Amendment Act 2014
vii
99
99
100
101
101
102
104
106
106
106
108
108
111
112
114
115
115
116
117
117
117
118
118
119
119
121
121
121
121
122
123
123
123
Section
Page
Division 2—Amendment of Children, Youth and Families
Act 2005
132
133
134
135
136
137
138
139
Release on parole from youth residential centre
Release on parole from youth justice centre
Jurisdiction of Youth Residential Board
Jurisdiction of Youth Parole Board
Governor in Council may establish corrective services
Children in detention
Proceedings in which child is required to be legally
represented
Duties of youth justice officers
Division 3—Consequential and other amendments
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
Accident Towing Services Act 2007
Appeal Costs Act 1998
Bus Safety Act 2009
Coroners Act 2008
Corrections Act 1986
Criminal Organisations Control Act 2012
Disability Act 2006
Firearms Act 1996
Juries Act 2000
Legal Aid Act 1978
Mental Health Act 2014
Police Regulation Act 1958
Sex Offenders Registration Act 2004
Transport (Compliance and Miscellaneous) Act 1983
Working with Children Act 2005
Amendment consequential on Victoria Police Act 2013
PART 6—MAJOR CRIME INVESTIGATIVE POWERS
156
157
158
159
160
161
162
163
164
165
166
Purposes of Major Crime (Investigative Powers) Act 2004
Definition
Confidentiality of witness summons and orders
When Chief Examiner may conduct an examination
Preliminary requirements
Failure of witnesses to attend and answer questions
Privilege against self-incrimination abrogated
Restriction on publication of evidence
New sections 43A and 43B inserted
43A
Release of restricted evidence to a person charged
with an offence
43B
Release of restricted evidence where person not yet
charged
Warrant for arrest of witness
Contempt of Chief Examiner—removal of sunset
viii
124
124
124
125
125
125
125
126
126
126
126
126
127
127
127
128
128
128
128
128
128
129
129
130
130
131
132
132
132
132
133
133
134
134
135
136
136
137
139
139
Section
167
168
Page
Delegation
Amendment of Criminal Procedure Act 2009
PART 7—VARIATION OF ALCOHOL EXCLUSION ORDERS
169
170
Variation of alcohol exclusion orders
New section 153 inserted
153
Transitional provision—Criminal Organisations
Control and Other Acts Amendment Act 2014—
alcohol exclusion orders
140
140
141
141
142
142
PART 8—MISCELLANEOUS AMENDMENTS
143
Division 1—Amendment of Criminal Procedure Act 2009
143
171
Schedule 3 amended
143
Division 2—Amendment of Evidence (Miscellaneous Provisions)
Act 1958
172
173
List of persons who may witness statutory declarations
Affidavits in Victoria how sworn and taken
Division 3—Amendment of Mental Health Act 2014
174
175
Definitions
Apprehension of person by police officer or protective
services officer
Division 4—Amendment of Open Courts Act 2013
176
177
Notice of applications for suppression orders
Magistrates' Court may make order prohibiting publication of
specified material
Division 5—Amendment of Personal Safety Intervention Orders
Act 2010
178
143
143
144
144
144
145
146
146
147
147
New section 16A inserted
16A
Registrar must refuse to accept application
147
147
Division 6—Amendment of Summary Offences Act 1966
149
179
Requirement to give name and address
Division 7—Amendment of Victorian Institute of Forensic
Medicine Act 1985
180
181
The Council
Members of the Council
149
150
150
150
ix
Section
Page
Division 8—Amendments relating to Victoria Police
182
183
184
185
186
Promotion of police officers and protective services officers
Unauthorised manufacture etc of Victoria Police identification
or equipment
Subject matter for regulations
Transitional provisions
Consequential amendment of Corrections Act 1986
PART 9—REPEAL OF AMENDING ACT
187
Repeal of amending Act
═══════════════
ENDNOTES
151
151
151
151
151
152
153
153
154
x
Victoria
Criminal Organisations Control and
Other Acts Amendment Act 2014†
No. 55 of 2014
[Assented to 26 August 2014]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1 Purposes
(1) The main purposes of Part 2 of this Act are to
amend the Confiscation Act 1997—
(a) to modify the operation of the civil forfeiture
regime to allow an application for a civil
forfeiture restraining order to be made in
relation to more than one Schedule 2
offence; and
1
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
s. 1
Part 1—Preliminary
(b) to modify the provisions relating to hardship
so that a court may only take into account
hardship that is undue hardship; and
(c) to introduce a regime for the automatic
forfeiture of all property owned or controlled
by a person convicted of a serious drug
offence; and
(d) to permit the holders of prescribed positions
within the Department of Justice to take
control of restrained property and exercise
the powers of a trustee in relation to that
property.
(2) The main purposes of Part 3 of this Act are—
(a) to amend the Criminal Organisations
Control Act 2012—
(i) to change the standard of proof that
applies in relation to the making of
declarations applying to individuals;
and
(ii) to provide for the making of different
kinds of declarations applying to
organisations; and
(iii) to make further provision in relation to
former members of declared
organisations; and
(iv) to change the matters of which the
Court must be satisfied in making
control orders; and
(v) to provide for the making of
declarations and control orders by
consent; and
(vi) to provide for applicants, respondents
and objectors to bear their own costs in
proceedings under that Act; and
2
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
Part 1—Preliminary
(vii) to apply that Act in relation to a wider
range of offences; and
(b) to amend the Firearms Act 1996 to change
how that Act operates in relation to declared
individuals and declared organisation
members; and
(c) to amend the Fortification Removal Act
2013 to apply that Act in relation to a wider
range of offences; and
(d) to amend the Major Crime (Investigative
Powers) Act 2004 to change how that Act
operates in relation to organised crime
offences involving a declared individual or a
declared organisation member.
(3) The main purpose of Part 4 of this Act is to amend
the Criminal Procedure Act 2009 in relation
to—
(a) the cross-examination of a witness at a
committal hearing; and
(b) the service of documents relating to traffic
camera offences.
(4) The main purposes of Part 5 of this Act are—
(a) to amend the Crimes (Mental Impairment
and Unfitness to be Tried) Act 1997 and
the Children, Youth and Families Act
2005—
(i) to enable the Children's Court to
determine the issue of fitness to stand
trial in relation to offences within the
jurisdiction of the Children's Court; and
(ii) if the Children's Court finds that a child
is unfit to stand trial and committed the
offence charged, to enable the
Children's Court to declare the child
liable to supervision; and
3
s. 1
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
s. 2
Part 1—Preliminary
(iii) after a finding of not guilty because of
mental impairment for offences within
the jurisdiction of the Children's Court,
to enable the Children's Court to
declare a child liable to supervision;
and
(b) to amend the Working with Children Act
2005 to include in the definition of finding
of guilt a finding of not guilty on account of
insanity.
(5) The main purposes of Part 6 of this Act are—
(a) to amend the Major Crime (Investigative
Powers) Act 2004 to improve the operation
of that Act; and
(b) to make a related amendment to the
Criminal Procedure Act 2009.
(6) The main purpose of Part 7 of this Act is to amend
the Sentencing Act 1991 in relation to alcohol
exclusion orders.
(7) The main purpose of Part 8 of this Act is to make
miscellaneous amendments to the Criminal
Procedure Act 2009, the Evidence
(Miscellaneous Provisions) Act 1958, the
Mental Health Act 2014, the Open Courts Act
2013, the Personal Safety Intervention Orders
Act 2010, the Summary Offences Act 1966, the
Victorian Institute of Forensic Medicine Act
1985 and the Victoria Police Act 2013.
2 Commencement
(1) This Part, Part 2 (except Division 3), Division 4 of
Part 5, section 154(2), Part 6 and Part 8 (except
Division 5) come into operation on the day after
the day on which this Act receives the Royal
Assent.
4
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
Part 1—Preliminary
(2) Section 155 comes into operation on the later of—
(a) the day on which section 125 comes into
operation; or
(b) the day on which section 278 of the Victoria
Police 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 1 March 2015, it
comes into operation on that day.
__________________
5
s. 2
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
Part 2—Confiscation
s. 3
PART 2—CONFISCATION
Division 1—Amendments relating to civil forfeiture
3 Definitions
See:
Act No.
108/1997.
Reprint No. 6
as at
1 April 2012
and
amending
Act Nos
20/2012,
82/2012,
77/2013,
17/2014 and
37/2014.
LawToday:
www.
legislation.
vic.gov.au
In section 3(1) of the Confiscation Act 1997, in
the definition of tainted property—
(a) omit ", in relation to an offence,";
(b) in paragraph (a)(i), (iii) and (iv), for "the
Schedule 2 offence" substitute "one or more
Schedule 2 offences";
(c) in paragraph (b), after "property that" insert
", in relation to an offence".
4 Property may be subject to both civil forfeiture
restraining order and restraining order
In section 36J(2)(a) of the Confiscation Act
1997, for "the Schedule 2 offence" substitute
"a Schedule 2 offence".
5 Application for civil forfeiture restraining order
(1) In section 36K(1) and (2)(b) of the Confiscation
Act 1997 omit "in relation to a Schedule 2
offence".
(2) In section 36K(3) of the Confiscation Act 1997,
after "the Schedule 2 offence" insert "or any one
or more of the Schedule 2 offences".
(3) In section 36K(6) of the Confiscation Act 1997—
(a) in paragraph (a), after "offence" insert
"or offences";
(b) in paragraph (b), after "offence" insert
"or different Schedule 2 offences".
6
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
Part 2—Confiscation
6 Determination of application for civil forfeiture
restraining order
(1) In section 36M(a) of the Confiscation Act 1997
omit "in relation to a Schedule 2 offence".
(2) At the end of section 36M of the Confiscation
Act 1997 insert—
"(2) To avoid doubt, if an application under
section 36K for a civil forfeiture restraining
order in respect of property is made in
relation to more than one Schedule 2
offence, the court may be satisfied that the
deponent of the affidavit reasonably suspects
that the property is tainted property despite
the deponent being unable to specify—
(a) in relation to which of the Schedule 2
offence or offences the property is
tainted; or
(b) the extent to which the property is
tainted in relation to each of the
Schedule 2 offences.".
7 Court directions to provide information
In section 36S(2)(a) of the Confiscation Act
1997, for "the Schedule 2 offence" substitute
"a Schedule 2 offence".
8 Application for exclusion from civil forfeiture
restraining order
(1) In section 36U(7) of the Confiscation Act 1997—
(a) in paragraph (a) omit "in relation to a
Schedule 2 offence";
(b) in paragraph (b), for "the offence or any
other offence" substitute "an offence".
7
s. 6
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
s. 9
Part 2—Confiscation
(2) In section 36U(8) of the Confiscation Act 1997—
(a) in paragraph (a) omit "in relation to a
Schedule 2 offence";
(b) in paragraph (b), for "the offence or any
other offence" substitute "an offence".
(3) In section 36U(9) of the Confiscation Act 1997—
(a) in paragraph (a) omit "in relation to a
Schedule 2 offence";
(b) in paragraph (b), for "the Schedule 2
offence or a related offence" substitute
"a Schedule 2 offence".
9 Determination of application for exclusion from civil
forfeiture restraining order
(1) In section 36V(1)(b) of the Confiscation Act
1997—
(a) for subparagraphs (i) and (ii) substitute—
"(i) the applicant was not, in any way,
involved in the commission of any
relevant Schedule 2 offence; and
(ii) where the applicant acquired the
interest before the commission, or
alleged commission, of the relevant
Schedule 2 offences, the applicant did
not know that the property—
(A) would be, or was intended to be,
used in, or in connection with, the
commission of any of those
offences; or
(B) was likely to be, or intended to be,
used in, or in connection with, the
future commission of any of those
offences; and";
8
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
Part 2—Confiscation
(b) in subparagraph (iii), for "the Schedule 2
offence" substitute "the relevant Schedule 2
offences".
(2) After section 36V(2) of the Confiscation Act
1997 insert—
"(3) In this section—
relevant Schedule 2 offence means a
Schedule 2 offence in relation to which
the civil forfeiture restraining order was
made.".
10 Priority given to payment of restitution or
compensation
In section 36ZA(1) of the Confiscation Act 1997,
for "the offence" substitute "an offence".
11 Application for civil forfeiture order
In section 37(7) of the Confiscation Act 1997,
after "Schedule 2 offence" insert "or any one or
more of the same Schedule 2 offences".
12 Application for exclusion from civil forfeiture order
(1) In section 40A(9) of the Confiscation Act 1997—
(a) in paragraph (a) omit "in relation to a
Schedule 2 offence";
(b) in paragraph (b), for "the offence or any
other offence" substitute "an offence".
(2) In section 40A(10) of the Confiscation Act
1997—
(a) in paragraph (a) omit "in relation to a
Schedule 2 offence";
(b) in paragraph (b), for "the offence or any
other offence" substitute "an offence".
9
s. 10
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
s. 13
Part 2—Confiscation
(3) In section 40A(11) of the Confiscation Act
1997—
(a) in paragraph (a) omit "in relation to a
Schedule 2 offence";
(b) in paragraph (b) for "the Schedule 2
offence or a related offence" substitute
"a Schedule 2 offence".
13 Determination of application for exclusion from civil
forfeiture order
(1) In section 40B(1)(b) of the Confiscation Act
1997—
(a) for subparagraphs (i) and (ii) substitute—
"(i) the applicant was not, in any way,
involved in the commission of any
relevant Schedule 2 offence; and
(ii) where the applicant acquired the
interest before the commission, or
alleged commission, of the relevant
Schedule 2 offences, the applicant did
not know that the property—
(A) would be, or was intended to be,
used in, or in connection with, the
commission of any of those
offences; or
(B) was likely to be, or intended to be,
used in, or in connection with, the
future commission of any of those
offences; and";
(b) in subparagraph (iii), for "the Schedule 2
offence" substitute "the relevant Schedule 2
offences".
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(2) After section 40B(2) of the Confiscation Act
1997 insert—
"(3) In this section—
relevant Schedule 2 offence means a
Schedule 2 offence in relation to which
the civil forfeiture restraining order was
made.".
Division 2—Amendments relating to hardship
14 Determination of application for forfeiture order
(1) For section 33(5)(b) of the Confiscation Act 1997
substitute—
"(b) subject to subsection (5A), any undue
hardship that may reasonably be likely to be
caused to any person by the order; and".
(2) After section 33(5) of the Confiscation Act 1997
insert—
"(5A) For the purposes of subsection (5)(b), when
having regard to any hardship caused to the
person convicted of the offence in relation to
which the forfeiture order is sought, the court
must not take into account the impact on that
person of the sentence given for that
offence.".
15 Determination of application for civil forfeiture
order
In section 38(2) of the Confiscation Act 1997, for
"hardship" substitute "undue hardship".
16 Relief from hardship
(1) Insert the following heading to section 45 of the
Confiscation Act 1997—
"Relief from undue hardship".
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(2) In section 45(1) of the Confiscation Act 1997, for
"If a court is satisfied that hardship" substitute
"Subject to subsection (1A), if a court is satisfied
that undue hardship".
(3) In section 45(1)(a) of the Confiscation Act 1997,
for "hardship" substitute "undue hardship".
(4) After section 45(1) of the Confiscation Act 1997
insert—
"(1A) For the purposes of subsection (1), when
determining whether undue hardship may be
caused by a forfeiture order to the person
convicted of the offence in relation to which
the forfeiture order has been made, the court
must not take into account the impact on that
person of the sentence given for that
offence.".
Division 3—Amendments relating to serious drug offender
regime
Subdivision 1—Amendment of Confiscation Act 1997
17 Definitions
In section 3(1) of the Confiscation Act 1997—
(a) in the definition of automatic forfeiture,
after paragraph (a) insert—
"(ab) forfeiture under section 36GA; or";
(b) in the definition of restraining order, after
"section 18" insert ", including a serious
drug offence restraining order";
(c) insert the following definitions—
"protected property has the meaning given
by section 24(2);
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serious drug offence means an offence
against any of the following provisions
of the Drugs, Poisons and Controlled
Substances Act 1981 committed in the
circumstances specified (if any)—
(a) section 71 (trafficking in a drug or
drugs of dependence—large
commercial quantity);
(b) section 72 (cultivation of narcotic
plants—large commercial
quantity);
(c) section 79(1) or 80(3)(a)
(conspiracy)—where the
conspiracy is to commit an
offence specified in paragraph (a)
or (b);
(d) section 80(1) or 80(3)(b) (aiding
and abetting etc.)—where the
offence that is aided, abetted,
counselled, procured, solicited or
incited is an offence specified in
paragraph (a) or (b);
serious drug offence restraining order
means a restraining order made under
section 18 for the purpose referred to in
section 15(1)(c);
serious drug offender means a person
declared under section 89DI of the
Sentencing Act 1991 to be a serious
drug offender;".
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18 Purposes for which a restraining order may be
made
After section 15(1)(b) of the Confiscation Act
1997 insert—
"(c) to satisfy automatic forfeiture of property
that may occur under Division 4 of Part 3;".
19 New section 15A inserted
After section 15 of the Confiscation Act 1997
insert—
"15A Property may be subject to both
restraining order and civil forfeiture
restraining order
(1) Property or an interest in property may be
subject to both a restraining order under this
Part and a civil forfeiture restraining order.
(2) If both a restraining order under this Part
made for the purposes of section 15(1)(a),
(b) or (c) and a civil forfeiture restraining
order apply in relation to the same property
or interest in property, the restraining order
under this Part, to the extent that it applies to
that property or interest in property, remains
in operation until the earliest of—
(a) the property being able to be disposed
of in accordance with section 44(2)
because a civil forfeiture order under
Division 2 of Part 4 has been made in
relation to the same property or interest
in property to which the restraining
order applies; or
(b) the restraining order ceasing to operate
or being set aside in whole or in part
under section 27; or
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(c) the property or interest in property
being excluded from the operation of
the restraining order by an exclusion
order.".
20 Application for restraining order
(1) After section 16(2) of the Confiscation Act 1997
insert—
"(2A) The DPP or a prescribed person, or a person
belonging to a prescribed class of persons,
may apply, without notice, to the Supreme
Court or the County Court for a serious drug
offence restraining order in respect of
property if—
(a) a member of the police force or a
person authorised by or under an Act to
prosecute the relevant type of offence
believes that—
(i) within the next 48 hours a person
will be charged with a serious
drug offence; and
(ii) that person has an interest in the
property; or
(b) a person has been charged with a
serious drug offence and that person
has an interest in the property; or
(c) a person has been convicted of a
serious drug offence and that person
has an interest in the property.".
(2) In section 16(3) of the Confiscation Act 1997,
after "subsection (2)" insert "or (2A)".
(3) In section 16(4) of the Confiscation Act 1997—
(a) for "subsection (1) or (2)(b), (c) or (d)"
substitute "subsection (1), (2) or (2A)";
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(b) for paragraph (d) substitute—
"(d) that—
(i) in the case of an application under
subsection (1) or (2)—the accused
has an interest in the property or
the property is tainted property
(as the case may be); and
(ii) in the case of an application under
subsection (2A)—the accused has
an interest in the property; and".
(4) In section 16(6) of the Confiscation Act 1997, for
"subsection (1) or (2)" substitute "subsection (1),
(2) or (2A)".
(5) In section 16(7) of the Confiscation Act 1997,
after "subsection (2)" insert "or (2A)".
(6) In section 16(8) of the Confiscation Act 1997,
after "subsection (1)" insert "or (2A)".
(7) After section 16(8) of the Confiscation Act 1997
insert—
"(9) An application under subsection (2A) in
relation to property or an interest in property
does not preclude an application under
subsection (1) or (2) in relation to the same
property or interest in property.".
21 Procedure on application
In section 17(1), (1B) and (1C) of the
Confiscation Act 1997, for "section 16(1) or
16(2)" substitute "section 16(1), (2) or (2A)".
22 Determination of application
In section 18(1) of the Confiscation Act 1997—
(a) for "section 16(1) or (2)(b), (c) or (d)"
substitute "section 16(1), (2) or (2A)";
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(b) for "a Schedule 1 offence or a Schedule 2
offence" substitute "a Schedule 1 offence, a
Schedule 2 offence or a serious drug
offence".
23 Court directions to provide information
In section 19D(2)(a) of the Confiscation Act
1997, for "Schedule 1 offence or Schedule 2
offence" substitute "Schedule 1 offence,
Schedule 2 offence or serious drug offence".
24 Application for exclusion from restraining order
(1) For section 20(1) of the Confiscation Act 1997
substitute—
"(1) If a court makes a restraining order against
property under section 18, the following
persons may apply to that court for an order
under section 21, 22 or 22A—
(a) in the case of an application for an
order under section 21 or 22—any
person claiming an interest in the
property, including the accused;
(b) in the case of an application for an
order under section 22A—any person
claiming an interest in the property,
other than the accused.".
(2) In section 20(3) of the Confiscation Act 1997, for
"section 21 or 22" (wherever occurring)
substitute "section 21, 22 or 22A".
(3) In section 20(7) of the Confiscation Act 1997—
(a) for "section 21 or 22" substitute "section 21,
22 or 22A";
(b) for "the charge referred to in
subsection (6)(b)" substitute "the charge for
the offence in relation to which the
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restraining order is made or for any related
offence".
25 New section 22A inserted
After section 22 of the Confiscation Act 1997
insert—
"22A Determination of exclusion application—
serious drug offence restraining order
(1) On an application made under section 20, the
court may make an order excluding the
applicant's interest in property from the
operation of a serious drug offence
restraining order made in relation to a serious
drug offence if the court is satisfied that—
(a) the applicant was not, in any way,
involved in the commission of the
serious drug offence; and
(b) the applicant's interest in the property
was not subject to the effective control
of the accused on the earlier of—
(i) the date that the accused was
charged with the serious drug
offence; or
(ii) the date that the serious drug
offence restraining order was
made in relation to the property;
and
(c) where the applicant acquired the
interest from the accused, directly or
indirectly, that it was acquired for
sufficient consideration.
(2) If the court makes an order under
subsection (1), the court may also make an
order declaring the nature, extent and value
of the applicant's interest in the property.
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Note
Property excluded from a serious drug offence
restraining order may continue to be restrained if a
restraining order has also been made in relation to the
property for the purpose referred to in
section 15(1)(b).".
26 New section 24 inserted
After section 23 of the Confiscation Act 1997
insert—
"24 Protected property not to be included in
serious drug offence restraining order
(1) A restraining order made for the purposes of
section 15(1)(c) must not include property
that is protected property.
(2) For the purposes of subsection (1) and
subject to subsection (3), the following
property is protected property—
(a) property used by the accused or a
dependant of the accused primarily as a
means of transport;
(b) any item of necessary clothing of the
accused or a dependant of the accused;
(c) any item of ordinary household
property of the accused or a dependant
of the accused;
(d) any tools of trade required by the
accused or a dependant of the accused
in earning income.
(3) An item or property of a category referred to
in subsection (2) is not protected property if
the value of the item exceeds the amount
prescribed for that category.
(4) Subject to subsection (5), property that is
excluded from a serious drug offence
restraining order because it is protected
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property must also be excluded from any
other restraining order under which the
property is restrained.
(5) Subsection (4) does not apply to property
that, for the purposes of the other restraining
order, is tainted property.
(6) In this section—
dependant, of the accused, means a person
who—
(a) has resided with the accused for a
substantial period of time
immediately prior to the making
of the restraining order; and
(b) is wholly or substantially
dependent on the accused for—
(i) financial support; or
(ii) personal care because the
person has a severe
disability, a medical
condition or a condition of
frailty;
necessary clothing does not include
jewellery, collectible watches or
clothing that is kept as part of a
collection;
ordinary household items does not include
antiques, collections, collectible items
and artwork.".
27 Duration and setting aside of restraining order
(1) In section 27(1) of the Confiscation Act 1997,
after "restraining order" insert "(other than a
serious drug offence restraining order)".
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(2) After section 27(1) of the Confiscation Act 1997
insert—
"(2) If—
(a) a serious drug offence restraining order
is made in reliance on the proposed
charging of an accused with a serious
drug offence; and
(b) at the end of the period of 48 hours
after the making of the serious drug
offence restraining order, the accused
has not been charged with the offence
or a related offence that is a serious
drug offence—
the serious drug offence restraining order
ceases to be in force at the end of that
period.".
(3) In section 27(3) of the Confiscation Act 1997,
after "restraining order" insert "(other than a
serious drug offence restraining order)".
(4) After section 27(3) of the Confiscation Act 1997
insert—
"(3A) If—
(a) a serious drug offence restraining order
is made in reliance on the charging, or
proposed charging, of an accused with
a serious drug offence; and
(b) the charge is withdrawn and the
accused is not charged with a related
offence that is a serious drug offence by
the time of the withdrawal—
the serious drug offence restraining order
ceases to be in force on the expiry of 7 days
after the charge is withdrawn.
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(3B) If—
(a) a serious drug offence restraining order
is made in reliance on the charging, or
proposed charging, of an accused with
a serious drug offence; and
(b) the accused is acquitted of the charge
and the accused is not charged with a
related offence that is a serious drug
offence by the time of the acquittal—
the serious drug offence restraining order
ceases to be in force when the acquittal
occurs.
(3C) If—
(a) a serious drug offence restraining order
is made in reliance on the conviction of
an accused of a serious drug offence;
and
(b) the conviction of the accused of the
offence is subsequently set aside—
the serious drug offence restraining order
ceases to be in force when the appeal period
expires unless a new trial has been ordered at
the time of the setting aside of the
conviction.".
(5) In section 27(5) and (6) of the Confiscation Act
1997, after "restraining order" insert "(other than
a serious drug offence restraining order)".
28 Application for freezing order
In section 31D(1)(a) of the Confiscation Act
1997—
(a) in subparagraph (i), for "a Schedule 1
offence or a Schedule 2 offence" substitute
"a Schedule 1 offence, a Schedule 2 offence
or a serious drug offence";
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(b) in subparagraph (iii), for "such an offence"
substitute "a Schedule 1 offence or a
Schedule 2 offence".
29 New Division 4 of Part 3 inserted
After Division 3 of Part 3 of the Confiscation Act
1997 insert—
"Division 4—Automatic forfeiture of property
of serious drug offender
36GA Automatic forfeiture of restrained
property on declaration that person is
serious drug offender
(1) Property of a person that is the subject of a
serious drug offence restraining order is
forfeited to the Minister in accordance with
this section if—
(a) a declaration is made under
section 89DI of the Sentencing Act
1991 that the person is a serious drug
offender consequent to the conviction
of the person of a serious drug offence;
and
(b) the serious drug offence restraining
order is or was made under Part 2 in
reliance on—
(i) the conviction of the person of
that offence; or
(ii) the charging or proposed charging
of the person with that offence or
a related offence that is a serious
drug offence; and
(c) the restrained property is not the subject
of an exclusion order under
section 22A; and
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(d) the restrained property is not protected
property.
(2) Unless an application under section 20 for an
exclusion order in respect of the restrained
property is still pending, the restrained
property is forfeited to the Minister on the
expiry of 60 days after the later of—
(a) the making of the restraining order; or
(b) the conviction of the accused.
(3) If, on the expiry of the 60 days referred to in
subsection (2), an application under
section 20 for an exclusion order in respect
of the restrained property is still pending, the
restrained property is forfeited to the
Minister—
(a) if the application is refused or
dismissed—
(i) at the end of the period during
which the person may appeal
against the refusal or dismissal; or
(ii) if an appeal against the refusal or
dismissal is lodged—when the
appeal is abandoned or finally
determined without the order
having been made; or
(b) if the application is withdrawn or struck
out—on that withdrawal or striking out.
(4) For the purposes of subsections (2) and (3),
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
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(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 (2).
36GB Declaration that property has been
forfeited
(1) If a court makes a serious drug offence
restraining order, a person may apply to the
court that made the order for a declaration
that property that was subject to the serious
drug offence restraining order has been
forfeited to the Minister under section 36GA
and the court, if satisfied that the property
has been forfeited to the Minister under that
section, must make a declaration
accordingly.
(2) An applicant under this section for a
declaration that property has been forfeited is
not required to give notice of the application
to any person who has an interest in the
property.
Note
Section 14 provides that a restraining order may be made in
respect of property or an interest in property.".
30 Property may be subject to both civil forfeiture
restraining order and restraining order
(1) In section 36J(2) of the Confiscation Act 1997
for "section 15(1)(a) or (b)" substitute
"section 15(1)(a), (b) or (c)".
(2) After section 36J(2)(a) of the Confiscation Act
1997 insert—
"(ab) the property being able to be disposed of in
accordance with section 44(2) because the
property has been forfeited under
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section 36GA on the owner of the property
being declared to be a serious drug
offender;".
31 Effect of forfeiture
In section 41(2)(b), (3) and (4) of the
Confiscation Act 1997, after "section 35" insert
"or 36GA".
32 Disposal of forfeited property
(1) In section 44(1) of the Confiscation Act 1997,
after "section 35" insert "or 36GA".
(2) In section 44(2) of the Confiscation Act 1997 for
"section 49 or 51" substitute "section 49, 51
or 53".
(3) In section 44(3)(b) of the Confiscation Act
1997—
(a) after "automatic forfeiture" insert "under
section 35";
(b) for "determined." substitute "determined;".
(4) After section 44(3)(b) of the Confiscation Act
1997 insert—
"(ba) in the case of automatic forfeiture under
section 36GA, when an appeal may no
longer be lodged against either the
conviction in reliance on which automatic
forfeiture occurred or a refusal to make an
exclusion order under section 22A or, if such
an appeal is lodged, when the appeal is
abandoned or finally determined;".
(5) In section 44(3A) of the Confiscation Act 1997—
(a) for "section 49 or 51" substitute "section 49,
51 or 53";
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(b) in paragraph (a)(i), for "section 49(2), 51(2)
or 40A(2)" substitute "section 49(2), 51(2),
53(2) or 40A(2)";
(c) in paragraph (a)(ii), for "section 49(3), 51(3)
or 40A(3)" substitute "section 49(3), 51(3),
53(3) or 40A(3)";
(d) in paragraph (b), for "section 40A(4) or
51(4)" substitute "section 40A(4), 51(4)
or 53(4)".
(6) In section 44(4) and (6) of the Confiscation Act
1997, after "section 35" insert "or 36GA".
33 New section 45A inserted
After section 45 of the Confiscation Act 1997
insert—
"45A Relief from automatic forfeiture of
property of serious drug offender
(1) If the residence of a serious drug offender is
forfeited under section 36GA, an application
may be made by a dependant of the serious
drug offender to the court that made the
serious drug offence restraining order for
relief from the forfeiture of the residence.
(2) An application under subsection (1) must be
made within 30 days after the property is
forfeited to the Minister.
(3) On an application under subsection (1), the
court may order that the amount referred to
in subsection (4) be paid to the dependant
out of the proceeds of the sale of the
forfeited residence for the purpose of
securing new accommodation if the court is
satisfied that—
(a) the forfeited residence is the principal
place of residence of the dependants;
and
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(b) the forfeited residence is not tainted
property for the purpose of automatic
forfeiture under Division 2 of Part 3 or
derived property; and
(c) the dependants of the serious drug
offender do not have the means to
secure accommodation of a value
equivalent to the prescribed amount.
(4) The amount that a court may order under
subsection (3) be paid to a dependent is—
(a) the prescribed amount; or
(b) in the event that the proceeds of the sale
of the forfeited residence are less than
the prescribed amount—the amount of
those proceeds.
(5) The court may order one payment only from
the proceeds of the sale of the forfeited
residence.
Example
If dependant A and dependant B each apply to the
court for an order under this section, the court may
order that the prescribed amount be paid to dependant
A or to dependant B but not to each of dependant A
and dependant B.
(6) An applicant for an order under subsection
(1) must give written notice of the
application to the Minister or a person
prescribed for the purposes of section 44(1).
(7) In this section—
dependant, of a serious drug offender, means
a person who—
(a) has resided with the serious drug
offender in the forfeited residence
for a substantial period of time
immediately prior to the making
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of the serious drug offence
restraining order; and
(b) is wholly or substantially
dependent on the serious drug
offender for—
(i) financial support; or
(ii) personal care because the
person has a severe
disability, a medical
condition or a condition of
frailty.".
34 Discharge of automatic forfeiture in respect of an
interest
(1) After section 47(1) of the Confiscation Act 1997
insert—
"(1A) Automatic forfeiture under section 36GA is
discharged in respect of an interest in
property if—
(a) the conviction in reliance on which the
automatic forfeiture occurred is
subsequently set aside; or
(b) an exclusion order in respect of the
interest is made, whether on appeal or
otherwise.".
(2) In section 47(2) of the Confiscation Act 1997,
after "subsection (1)" insert "or in
subsection (1A)".
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35 New sections 53 and 54 inserted
After section 52 of the Confiscation Act 1997
insert—
"53 Application for exclusion from automatic
forfeiture of property of serious drug
offender
(1) If property is forfeited to the Minister under
section 36GA, a person (other than the
accused) who claims to have had an interest
in the property immediately before it was
forfeited may, subject to subsections (2)
and (4), apply to the court that made the
relevant serious drug offence restraining
order for an order under section 54.
(2) The application must, subject to subsection
(3), be made before the end of the period of
60 days commencing on the day on which
the property is forfeited to the Minister.
(3) Subject to subsection (6), the court that made
the relevant serious drug offence restraining
order may grant a person leave to apply after
the end of the period referred to in
subsection (2) if it is satisfied that the delay
in making the application is not due to
neglect on the part of the applicant.
(4) An application for an order under section 54
in relation to an interest in property must not
be made by a person who was given notice
of—
(a) proceedings on the application for the
relevant serious drug offence
restraining order; or
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(b) the making of the relevant serious drug
offence restraining order—
except with the leave of the court that made
the relevant serious drug offence restraining
order.
(5) Subject to subsection (6), the court may
grant a person leave under subsection (4) to
make an application if the court is satisfied
that the person's failure to seek to have that
person's interest in the property excluded
from the relevant serious drug offence
restraining order was not due to neglect on
the part of the applicant.
(6) 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.
(7) An applicant must give written notice of the
application, and of the grounds on which it is
made—
(a) to the DPP; and
(b) to any person whom the applicant has
reason to believe had an interest in the
property immediately before it was
forfeited; and
(c) to a person prescribed for the purposes
of section 44(1).
(8) Any person notified under subsection (7) is
entitled to appear and to give evidence at the
hearing of the application but the absence of
that person does not prevent the court from
making an order under section 54.
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(9) If the DPP proposes to contest an application
for an exclusion order, the DPP must give
the applicant written notice of the grounds on
which the application is to be contested.
54 Determination of application from
exclusion from automatic forfeiture of
property of serious drug offender
(1) On an application made under section 53, the
court may make an order excluding the
applicant's interest in property from the
operation of section 36GA if the court is
satisfied that—
(a) the applicant was not, in any way,
involved in the commission of the
serious drug offence in relation to
which the relevant serious drug offence
restraining order was made; and
(b) the applicant's interest in the property
was not subject to the effective control
of the accused on the earlier of—
(i) the date that the accused was
charged with the serious drug
offence; or
(ii) the date that the serious drug
offence restraining order was
made in relation to the property;
and
(c) where the applicant acquired the
interest from the accused, directly or
indirectly, that it was acquired for
sufficient consideration.
(2) If the court makes an order under subsection
(1), the court may also make an order
declaring the nature, extent and value of the
applicant's interest in the property.".
32
Criminal Organisations Control and Other Acts Amendment Act 2014
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Part 2—Confiscation
36 Application to the Minister for return of property or
payment of value
(1) In section 55(1)(b) of the Confiscation Act 1997,
after "section 47(1)(a), (b) or (c)" insert
"or (1A)(a) or (b)".
(2) In section 55(2) of the Confiscation Act 1997, for
"section 50(1) or 52(1)" substitute "section 50(1),
52(1) or 54(1)".
(3) In section 55(4), (6)(b) and (9) of the
Confiscation Act 1997, for "section 14(4),
36H(4) or 45" substitute "section 14(4), 36H(4),
45 or 45A".
(4) In section 55(6)(a) and (9)(a) of the Confiscation
Act 1997, for "section 50(2) or 52(2)" substitute
"section 50(2), 52(2) or 54(2)".
37 Liability under forfeiture or pecuniary penalty
order to be satisfied by trustee
In section 75(2) of the Confiscation Act 1997,
after "section 35" insert "or 36GA".
38 Order for examination
(1) In section 98(2) of the Confiscation Act 1997—
(a) in paragraph (a), for "a Schedule 1 offence or
a Schedule 2 offence" substitute
"a Schedule 1 offence, a Schedule 2 offence
or a serious drug offence";
(b) after paragraph (a)(i) insert—
"(ia) a serious drug offence restraining order
against property under section 18; or".
(2) In section 98(2A) of the Confiscation Act 1997,
for "a Schedule 1 offence or a Schedule 2 offence"
substitute "a Schedule 1 offence, a Schedule 2
offence or a serious drug offence".
33
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Criminal Organisations Control and Other Acts Amendment Act 2014
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s. 39
Part 2—Confiscation
(3) In section 98(5) of the Confiscation Act 1997, for
"a Schedule 2 offence" substitute "a Schedule 2
offence or a serious drug offence".
39 Application for production order
In section 100(1) of the Confiscation Act 1997,
for "a Schedule 1 offence or a Schedule 2 offence"
substitute "a Schedule 1 offence, a Schedule 2
offence or a serious drug offence".
40 Application for search warrant for propertytracking documents
(1) In section 109(1) of the Confiscation Act 1997,
for "a Schedule 1 offence or a Schedule 2 offence"
substitute "a Schedule 1 offence, a Schedule 2
offence or a serious drug offence".
(2) In section 109(2) of the Confiscation Act 1997,
for "the Schedule 1 offence or the Schedule 2
offence" substitute "the Schedule 1 offence, the
Schedule 2 offence or the serious drug offence".
41 Application for monitoring order
In section 115(2)(a) of the Confiscation Act
1997—
(a) in subparagraph (i), for "a Schedule 1
offence or a Schedule 2 offence" substitute
"a Schedule 1 offence, a Schedule 2 offence
or a serious drug offence";
(b) in subparagraph (iii), for "such an offence"
substitute "a Schedule 1 offence or a
Schedule 2 offence".
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42 Issuing information notices—authorised member of
police force
In section 118D(2)(a) of the Confiscation Act
1997—
(a) in subparagraph (i), for "a Schedule 1
offence or a Schedule 2 offence" substitute
"a Schedule 1 offence, a Schedule 2 offence
or a serious drug offence";
(b) in subparagraph (iii), for "such an offence"
substitute "a Schedule 1 offence or a
Schedule 2 offence".
43 Interstate orders and search warrants
In section 131(3) of the Confiscation Act 1997,
for "a Schedule 1 offence or a Schedule 2 offence"
substitute "a Schedule 1 offence, a Schedule 2
offence or a serious drug offence".
44 Crime Prevention and Victims' Aid Fund
In section 134(3) of the Confiscation Act 1997,
after "section 35" insert "or 36GA".
45 Conversion costs
In section 135 of the Confiscation Act 1997, after
"section 35" insert "or 36GA".
46 Appeals
In section 142(1)(b), (4) and (5)(ba) of the
Confiscation Act 1997, for "section 21, 22, 50(1)
or 52(1)" (wherever occurring) substitute
"section 21, 22, 22A, 50(1), 52(1) or 54(1)".
35
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Criminal Organisations Control and Other Acts Amendment Act 2014
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s. 47
Part 2—Confiscation
47 New section 188 inserted
After section 187 of the Confiscation Act 1997
insert—
"188 Transitional—Criminal Organisations
Control and Other Acts Amendment
Act 2014
(1) An application under section 16(2A) for a
serious drug offence restraining order may
only be made in relation to a serious drug
offence that is committed, or alleged to have
been committed, after the commencement of
section 20 of the Criminal Organisations
Control and Other Acts Amendment Act
2014.
(2) For the purposes of subsection (1), if an
offence is committed, or alleged to have
been committed, between two dates and
section 20 of the Criminal Organisations
Control and Other Acts Amendment Act
2014 commences on a date between those
two dates, the offence is taken to have been
committed, or alleged to have been
committed, before the commencement of
that section.".
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Criminal Organisations Control and Other Acts Amendment Act 2014
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Part 2—Confiscation
s. 48
Subdivision 2—Amendment of Sentencing Act 1991
48 Sentencing guidelines
(1) In section 5(2A)(ab) of the Sentencing Act 1991
after "under" insert "Division 2 or 3 of Part 3 of".
(2) In section 5(2A)(e) of the Sentencing Act 1991,
after "Schedule 2 offence" insert "or a serious
drug offence".
49 New Division 5 of Part 4 inserted
At the end of Part 4 of the Sentencing Act 1991
insert—
"Division 5—Serious drug offender
89DI Declaration by court that person is serious
drug offender
(1) On the conviction of a person by a court for
a serious drug offence, the court must make
an order declaring the person to be a serious
drug offender.
(2) In this section—
serious drug offence has the same meaning
as in section 3(1) of the Confiscation
Act 1997.".
37
See:
Act No.
49/1991.
Reprint No. 15
as at
30 September
2013
and
amending
Act Nos
32/2013,
46/2013,
70/2013,
77/2013,
7/2014,
15/2014,
17/2014,
26/2014 and
37/2014.
LawToday:
www.
legislation.
vic.gov.au
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
Part 2—Confiscation
s. 50
Subdivision 3—Amendment of Drugs, Poisons and
Controlled Substances Act 1981
50 Trafficking in a drug or drugs of dependence—large
commercial quantity
See:
Act No.
9719.
Reprint No. 10
as at
30 November
2012
and
amending
Act Nos
57/2012,
82/2012,
70/2013,
9/2014,
13/2014 and
37/2014.
LawToday:
www.
legislation.
vic.gov.au
At the foot of section 71 of the Drugs, Poisons
and Controlled Substances Act 1981 insert—
"Note
An offence against this section is a serious drug offence for
the purposes of the Confiscation Act 1997. On the
conviction of a person for a serious drug offence, the court
must make an order under section 89DI of the Sentencing
Act 1991 declaring the person to be a serious drug
offender.".
51 Cultivation of narcotic plants—large commercial
quantity
At the foot of section 72 of the Drugs, Poisons
and Controlled Substances Act 1981 insert—
"Note
An offence against this section is a serious drug offence for
the purposes of the Confiscation Act 1997. On the
conviction of a person for a serious drug offence, the court
must make an order under section 89DI of the Sentencing
Act 1991 declaring the person to be a serious drug
offender.".
52 Conspiring
At the foot of section 79(1) of the Drugs, Poisons
and Controlled Substances Act 1981 insert—
"Note
An offence against this section is a serious drug offence for
the purposes of the Confiscation Act 1997 where the
conspiracy is to commit an offence against section 71 or 72.
On the conviction of a person for a serious drug offence, the
38
Criminal Organisations Control and Other Acts Amendment Act 2014
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Part 2—Confiscation
court must make an order under section 89DI of the
Sentencing Act 1991 declaring the person to be a serious
drug offender.".
53 Aiding and abetting etc.
(1) At the foot of section 80(1) of the Drugs, Poisons
and Controlled Substances Act 1981 insert—
"Note
An offence against this section is a serious drug offence for
the purposes of the Confiscation Act 1997 where the
offence that is aided, abetted, counselled, procured, solicited
or incited is an offence against section 71 or 72. On the
conviction of a person for a serious drug offence, the court
must make an order under section 89DI of the Sentencing
Act 1991 declaring the person to be a serious drug
offender.".
(2) At the foot of section 80(3) of the Drugs, Poisons
and Controlled Substances Act 1981 insert—
"Note
An offence against this section is a serious drug offence for
the purposes of the Confiscation Act 1997 where the
conspiracy is to commit an offence that, if committed in
Victoria, would be an offence against section 71 or 72 or the
offence that is aided, abetted, counselled, procured, solicited
or incited is an offence that, if committed in Victoria, would
be an offence against section 71 or 72. On the conviction of
a person for a serious drug offence, the court must make an
order under section 89DI of the Sentencing Act 1991
declaring the person to be a serious drug offender.".
Division 4—Amendments relating to management of
restrained property
54 Restraining orders
For section 14(3) of the Confiscation Act 1997
substitute—
"(3) If the court making a restraining order
considers that the circumstances so require,
the order may direct one of the following to
take control of some or all of the property
specified in the order—
39
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Criminal Organisations Control and Other Acts Amendment Act 2014
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s. 55
Part 2—Confiscation
(a) a trustee specified in the order;
(b) a person holding a prescribed position
within the Department of Justice.".
55 Further orders
(1) In section 26(5)(ga) of the Confiscation Act
1997—
(a) for "a trustee" (where first occurring)
substitute "a trustee or a person holding a
prescribed position referred to in
section 14(3)";
(b) for "a trustee" (where secondly occurring)
substitute "a trustee or a person holding a
prescribed position referred to in that
section".
(2) In section 26(5)(h) of the Confiscation Act
1997—
(a) for "a trustee" substitute "a trustee or a
person holding a prescribed position referred
to in section 14(3)";
(b) in subparagraph (i), for "the trustee"
substitute "the trustee or the person holding
a prescribed position".
56 Civil forfeiture restraining orders
For section 36H(3) of the Confiscation Act 1997
substitute—
"(3) If the Supreme Court or the County Court,
when making a civil forfeiture restraining
order, considers that the circumstances so
require, the order may direct one of the
following to take control of some or all of
the property specified in the order—
(a) a trustee specified in the order;
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Part 2—Confiscation
(b) a person holding a prescribed position
within the Department of Justice.".
57 Further orders
In section 36W(6) of the Confiscation Act
1997—
(a) in paragraph (h), for "a trustee" (wherever
occurring) substitute "a trustee or a person
holding a prescribed position referred to in
section 36H(3)";
(b) in paragraph (i)—
(i) for "a trustee" substitute "a trustee or a
person holding a prescribed position
referred to in section 36H(3)";
(ii) in subparagraph (i), for "the trustee"
substitute "the trustee or the person
holding a prescribed position".
58 Liability under forfeiture or pecuniary penalty
order to be satisfied by trustee
After section 75(2) of the Confiscation Act 1997
insert—
"(3) If a court, when making a restraining order
or a civil forfeiture restraining order, directs
a person holding a prescribed position
referred to in section 14(3) or 36H(3) (as the
case may be) to take control of property, a
reference in subsections (1) and (2) to the
trustee is to be read as a reference to the
person holding the prescribed position.".
59 Provisions concerning trustee
After section 76(7) of the Confiscation Act 1997
insert—
"(8) If a court, when making a restraining order
or a civil forfeiture restraining order, directs
a person holding a prescribed position
41
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Criminal Organisations Control and Other Acts Amendment Act 2014
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s. 59
Part 2—Confiscation
referred to in section 14(3) or 36H(3) (as the
case may be) to take control of property, a
reference in subsections (2) to (7) to the
trustee is to be read as a reference to the
person holding the prescribed position.".
__________________
42
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
Part 3—Criminal Organisations Control
s. 60
PART 3—CRIMINAL ORGANISATIONS CONTROL
Division 1—Amendment of Criminal Organisations
Control Act 2012
60 Definitions
In section 3(1) of the Criminal Organisations
Control Act 2012—
(a) for the definition of applicable offence
substitute—
"applicable offence means—
(a) an indictable offence that is
punishable by at least 5 years
imprisonment; or
(b) an offence against a provision
specified in an item of the
Schedule, being a provision of the
Act specified in the heading to
that item; or
Note
See also section 10.
(c) an offence against section 321,
321G or 321M of the Crimes Act
1958 in relation to an offence
referred to in paragraph (a)
or (b);";
(b) in the definition of member, in paragraph (c),
for "displays" substitute "wears or
displays";
(c) for the definition of related organisation
substitute—
"related organisation means an organisation
specified in an application in
accordance with section 15(1)(ba) on
43
See:
Act No.
80/2012
and
amending
Act Nos
80/2012 and
37/2014.
LawToday:
www.
legislation.
vic.gov.au
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
s. 61
Part 3—Criminal Organisations Control
which the Court has made a declaration
that applies to an individual;";
(d) insert the following definitions—
"prohibitive declaration—see section 19(2);
restrictive declaration—see
section 19(2A);".
61 Section 4 repealed
Section 4 of the Criminal Organisations Control
Act 2012 is repealed.
62 Meaning of prospective member
In section 8(2)(c) of the Criminal Organisations
Control Act 2012, after "wears" insert
"or displays".
63 Form and content of application
(1) After section 15(1)(b) of the Criminal
Organisations Control Act 2012 insert—
"(ba) in the case of an application in respect of an
individual, identify the organisation that is
relevant for the purposes of section 19(3)(a)
and (b); and".
(2) After section 15(1) of the Criminal
Organisations Control Act 2012 insert—
"(1A) An application in respect of an organisation
does not need to state whether a prohibitive
declaration or a restrictive declaration is
sought.".
(3) In section 15(2) of the Criminal Organisations
Control Act 2012—
(a) for "In the case of an application in respect
of an organisation, the" substitute "An";
(b) for "the application" substitute
"an application".
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64 Objection to application for declaration
In section 17(2)(b) of the Criminal
Organisations Control Act 2012, for "section
15(2)" substitute "section 15(4)".
65 Court may make declarations
(1) For section 19(2) of the Criminal Organisations
Control Act 2012 substitute—
"(2) The Court may make a declaration under
subsection (1)(a) (a prohibitive declaration)
if—
(a) the Court is satisfied beyond reasonable
doubt that the matters set out in
subsection (2B) apply to the
organisation; and
(b) the Court is satisfied on the balance of
probabilities that the activities of the
organisation pose a serious threat to
public safety and order.
(2A) The Court may make a declaration under
subsection (1)(a) (a restrictive declaration) if
the Court is satisfied on the balance of
probabilities that—
(a) the matters set out in subsection (2B)
apply to the organisation; and
(b) the activities of the organisation pose a
serious threat to public safety and
order.
(2B) For the purposes of subsection (2)(a) and
(2A)(a), the matters that apply to an
organisation are, as the case requires—
(a) the organisation—
(i) has engaged in, organised,
facilitated or supported serious
criminal activity; or
45
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Criminal Organisations Control and Other Acts Amendment Act 2014
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s. 65
Part 3—Criminal Organisations Control
(ii) is engaging in, organising,
facilitating or supporting serious
criminal activity; or
(b) any 2 or more members, former
members or prospective members of
the organisation have used or are
using—
(i) the organisation; or
(ii) their relationship with that
organisation or with that
organisation's members, former
members or prospective
members—
for a criminal purpose; or
(c) any 2 or more members or prospective
members of the organisation are also
members, former members or
prospective members of an organisation
to which a control order applies; or
(d) control orders apply to any 2 or more
members or prospective members of
the organisation.
(2C) The Court may also make a prohibitive
declaration or a restrictive declaration if the
organisation gives its consent to the
declaration being made.
Note
Section 135A specifies how consent is to be given.".
(2) In section 19(3) of the Criminal Organisations
Control Act 2012—
(a) after "satisfied" insert "on the balance of
probabilities";
46
Criminal Organisations Control and Other Acts Amendment Act 2014
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Part 3—Criminal Organisations Control
(b) in paragraph (a), for "an organisation"
substitute "the organisation identified in the
application for the declaration in accordance
with section 15(1)(ba)".
(3) After section 19(3) of the Criminal
Organisations Control Act 2012 insert—
"(3A) The Court may also make a declaration
under subsection (1)(b) if the individual
gives his or her consent to the declaration
being made.
Note
Section 135A specifies how consent is to be given.".
(4) In section 19(4) of the Criminal Organisations
Control Act 2012, for "(2)" substitute
"(2), (2A)".
(5) In section 19(5) of the Criminal Organisations
Control Act 2012—
(a) for "subsections (2)(a)(ii)" substitute
"subsections (2B)(b)";
(b) in paragraph (f)(i), after "wearing" insert
"or displaying".
(6) In section 19(6) of the Criminal Organisations
Control Act 2012, for "subsections (2)(a)(ii)"
substitute "subsections (2A)(b)".
(7) After section 19(6) of the Criminal
Organisations Control Act 2012 insert—
"(7) In making a declaration by consent in
accordance with subsection (2C) or (3A), the
Court is not required to consider the matters
set out in subsections (2), (2A) and (3).".
47
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Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
s. 66
Part 3—Criminal Organisations Control
66 New section 21 substituted
For section 21 of the Criminal Organisations
Control Act 2012 substitute—
"21 Objections to be disregarded if
respondent consents to declaration
The Court must disregard any objection
made under section 17 in making a
declaration if the respondent gives consent to
the declaration being made.
Note
Section 135A specifies how consent is to be given.".
67 Form of declaration
After section 22(a) of the Criminal
Organisations Control Act 2012 insert—
"(ab) if the declaration applies to an organisation,
whether it is a prohibitive declaration or a
restrictive declaration; and".
68 Duration of declaration
In section 24(1) of the Criminal Organisations
Control Act 2012, after "section 29" insert
"or 29A".
69 Application for revocation of declaration
For section 27(3) of the Criminal Organisations
Control Act 2012 substitute—
"(3) The Court may grant leave to apply under
subsection (2) if—
(a) the Chief Commissioner files with the
Court a notice, signed by the Chief
Commissioner, stating that the Chief
Commissioner supports the granting of
leave; or
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Part 3—Criminal Organisations Control
(b) the Court is satisfied that there has been
a substantial change in circumstances
since the declaration that applies to the
organisation or individual was made.".
70 Section 29 substituted
For section 29 of the Criminal Organisations
Control Act 2012 substitute—
"29 Determination of application for
revocation of declaration in respect of
organisation
(1) The Court may, in accordance with this
section, revoke a declaration in respect of an
organisation on an application under
section 27.
(2) The Court may revoke a prohibitive
declaration made on the basis that the Court
was satisfied of the matters set out in
section 19(2) if the Court is—
(a) no longer satisfied beyond reasonable
doubt that the matters set out in
section 19(2B) apply to the declared
organisation; or
(b) no longer satisfied on the balance of
probabilities that the activities of the
declared organisation pose a serious
threat to public safety and order.
(3) The Court may revoke a restrictive
declaration made on the basis that the Court
was satisfied of the matters set out in
section 19(2A) if the Court is no longer
satisfied on the balance of probabilities that
both—
49
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Criminal Organisations Control and Other Acts Amendment Act 2014
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s. 70
Part 3—Criminal Organisations Control
(a) the matters set out in section 19(2B)
apply to the declared organisation; and
(b) the activities of the declared
organisation pose a serious threat to
public safety and order.
(4) The Court may revoke a prohibitive
declaration made by consent in accordance
with section 19(2C) if the Court—
(a) is not satisfied beyond reasonable
doubt that the matters set out in
section 19(2B) apply to the declared
organisation; or
(b) is not satisfied on the balance of
probabilities that the activities of the
declared organisation pose a serious
threat to public safety and order.
(5) The Court may revoke a restrictive
declaration made by consent in accordance
with section 19(2C) if the Court is not
satisfied on the balance of probabilities that
both—
(a) the matters set out in section 19(2B)
apply to the declared organisation; and
(b) the activities of the declared
organisation pose a serious threat to
public safety and order.
(6) The Court may revoke a declaration in
respect of an organisation if the respondent
gives consent to the revocation.
Note
Section 135A specifies how consent is to be given.".
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71 New section 29A inserted
After section 29 of the Criminal Organisations
Control Act 2012 insert—
"29A Determination of application for
revocation of declaration in respect of
individual
(1) The Court may, in accordance with this
section, revoke a declaration in respect of an
individual on an application under
section 27.
(2) The Court may revoke a declaration that was
made on the basis that the Court was
satisfied of the matters set out in section
19(3) if the Court is no longer satisfied of
those matters on the balance of probabilities.
(3) The Court may revoke a declaration that was
made by consent in accordance with section
19(3A) if the Court is not satisfied of the
matters set out in section 19(3) on the
balance of probabilities.
(4) The Court may revoke a declaration if the
respondent gives consent to the revocation.
Note
Section 135A specifies how consent is to be given.".
72 When revocation of declaration takes effect
In section 30(1) of the Criminal Organisations
Control Act 2012, after "section 29" insert
"or 29A".
51
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Criminal Organisations Control and Other Acts Amendment Act 2014
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s. 73
Part 3—Criminal Organisations Control
73 Court may make control order
(1) For section 43(1) of the Criminal Organisations
Control Act 2012 substitute—
"(1) The Court may make a control order that
applies to an organisation if the organisation
is a declared organisation and the Court is
satisfied that—
(a) if the declaration which applies to the
organisation is a prohibitive
declaration—the making of the control
order is likely to contribute to the
purpose of preventing or disrupting
serious criminal activity by—
(i) the organisation; or
(ii) any members, former members or
prospective members of the
organisation; or
(b) if the declaration which applies to the
organisation is a restrictive
declaration—it is necessary or desirable
to restrict, or to impose conditions on,
the activities of—
(i) the organisation; or
(ii) any members, former members or
prospective members of the
organisation—
in order to end, prevent or reduce a
serious threat to public safety and
order.".
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Criminal Organisations Control and Other Acts Amendment Act 2014
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Part 3—Criminal Organisations Control
(2) After section 43(1) of the Criminal
Organisations Control Act 2012 insert—
"(1A) The Court may also make a control order
that applies to an organisation if—
(a) the organisation is a declared
organisation; and
(b) the organisation gives its consent to the
control order being made.
Note
Section 135A specifies how consent is to be given.".
(3) For section 43(2) of the Criminal Organisations
Control Act 2012 substitute—
"(2) The Court may make a control order that
applies to an individual if the Court is
satisfied that—
(a) the individual is a member, former
member or prospective member of an
organisation that is subject to a
declaration; and
(b) either—
(i) if the declaration is a prohibitive
declaration—the making of the
control order is likely to
contribute to the purpose of
preventing or disrupting—
(A) serious criminal activity by
the individual; or
(B) serious criminal activity by
any other person that is being
or may be facilitated by the
individual; or
53
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Criminal Organisations Control and Other Acts Amendment Act 2014
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s. 73
Part 3—Criminal Organisations Control
(ii) if the declaration is a restrictive
declaration—it is necessary or
desirable to restrict, or to impose
conditions on, the activities of the
individual in order to end, prevent
or reduce a serious threat to public
safety and order.".
(4) After section 43(2) of the Criminal
Organisations Control Act 2012 insert—
"(2A) The Court may make a control order that
applies to an individual if—
(a) the individual is a declared individual;
and
(b) the Court is satisfied that it is necessary
or desirable to restrict, or to impose
conditions on, the activities of the
individual in order to end, prevent or
reduce a serious threat to public safety
and order.
(2B) The Court may also make a control order
that applies to an individual if—
(a) either—
(i) the Court is satisfied that the
individual is a declared
organisation member; or
(ii) the individual is a declared
individual; and
(b) the individual gives his or her consent
to the control order being made.
Note
Section 135A specifies how consent is to be given.".
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(5) After section 43(4) of the Criminal
Organisations Control Act 2012 insert—
"(5) In making a control order by consent in
accordance with subsection (1A) or (2B), the
Court is not required to consider the matters
set out in subsections (1), (2) and (2A).".
74 Content of control orders—declared organisations
(1) In section 45(2) of the Criminal Organisations
Control Act 2012—
(a) paragraph (a) is repealed;
(b) in paragraph (b)—
(i) after "prohibit" insert "certain";
(ii) after "declared organisation" insert
"(or certain classes of members, former
members or prospective members)";
(c) in paragraph (h), for "owns" substitute
"owns,".
(2) After section 45(2) of the Criminal
Organisations Control Act 2012 insert—
"(2A) The control order may include a condition
that prohibits the organisation from doing
any of the following only if the declaration
applying to the organisation is a prohibitive
declaration—
(a) continuing to operate;
(b) carrying on business;
(c) taking on new members.".
(3) For section 45(4) of the Criminal Organisations
Control Act 2012 substitute—
"(4) A person who was a member of a declared
organisation on the day of the initial
application, but who has since become a
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former member of that organisation, is taken
to be both a member and a former member
for the purposes of a condition imposed
under subsection (2)(b) or (d).
(5) In this section—
carrying out of an activity does not include
being or becoming a party to a
proceeding (including an appeal);
day of the initial application, in relation to a
declared organisation, means the day on
which the Chief Commissioner applied
for the declaration that applies to the
organisation.".
75 Winding up of incorporated associations that are
prohibited from operating under a control order
In section 46(1) of the Criminal Organisations
Control Act 2012, for "prohibiting the
organisation from continuing to operate"
substitute "under section 45(2A)(a)".
76 New section 51A inserted
After section 51 of the Criminal Organisations
Control Act 2012 insert—
"51A Objections to be disregarded if
respondent consents to control order
The Court must disregard any objection
made under section 41 in making a control
order if the respondent gives consent to the
control order being made.
Note
Section 135A specifies how consent is to be given.".
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77 Form of control order
For section 52(b) of the Criminal Organisations
Control Act 2012 substitute—
"(b) in the case of an individual—
(i) if the control order was made on the
basis that the Court was satisfied of the
matters set out in section 43(2)—the
declared organisation; or
(ii) if the control order was made on the
basis that the Court was satisfied of the
matters set out in section 43(2A)—the
related organisation; or
(iii) if the control order was made by
consent in accordance with
section 43(2B)—
(A) whether the order was made on
the basis of section 43(2B)(a)(i)
or (ii); and
(B) the declared organisation or
related organisation (as the case
requires); and".
78 Notice of making of control order that applies to a
declared organisation
(1) For section 55(1) of the Criminal Organisations
Control Act 2012 substitute—
"(1) The Chief Commissioner must cause notice
of the making of a control order which
applies to a declared organisation to be—
(a) published—
(i) in the Government Gazette; and
(ii) in a newspaper circulating
generally throughout the State;
and
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(b) affixed to or near an appropriate
place.".
(2) In section 55(2) of the Criminal Organisations
Control Act 2012, after "published" insert "and
affixed".
(3) After section 55(3) of the Criminal
Organisations Control Act 2012 insert—
"(4) The notice that is to be affixed to or near an
appropriate place must be in the prescribed
form.".
79 Application for variation or revocation of control
order or ancillary order
For section 56(3) of the Criminal Organisations
Control Act 2012 substitute—
"(3) The Court may grant leave to apply under
subsection (2) if—
(a) the Chief Commissioner files with the
Court a notice, signed by the Chief
Commissioner, stating that the Chief
Commissioner supports the granting of
leave; or
(b) the Court is satisfied that there has been
a substantial change in circumstances
since the control order or ancillary
order that applies to the declared
organisation or the individual was
made.".
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80 Section 58 substituted
For section 58 of the Criminal Organisations
Control Act 2012 substitute—
"58 Determination of application for variation
or revocation—control order
(1) The Court may, in accordance with this
section, vary or revoke a control order on an
application under section 56.
(2) The Court may vary a control order if—
(a) the Court considers there has been a
substantial change in circumstances
since the order was made; or
(b) the respondent consents to the
variation.
(3) The Court may revoke a control order that
was made on the basis that the Court was
satisfied of the matters set out in section
43(1), (2) or (2A) if the Court is no longer
satisfied of those matters.
(4) The Court may revoke a control order that
was made by consent in accordance with
section 43(1A) if the Court is not satisfied of
the matters set out in section 43(1).
(5) The Court may revoke a control order that
was made by consent in accordance with
section 43(2B) if—
(a) in the case of a control order that was
made on the basis of section
43(2B)(a)(i), the Court is not satisfied
of the matters set out in section 43(2);
or
(b) in the case of a control order that was
made on the basis of section
43(2B)(a)(ii), either—
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(i) the individual is no longer a
declared individual; or
(ii) the Court is not satisfied of the
matters set out in
section 43(2A)(b).
(6) The Court may revoke a control order if the
respondent consents to the revocation.
Note
Section 135A specifies how consent is to be given.".
81 New section 58A inserted
After section 58 of the Criminal Organisations
Control Act 2012 insert—
"58A Determination of application for variation
or revocation—ancillary order
(1) The Court may, in accordance with this
section, vary or revoke an ancillary order on
an application under section 56.
(2) The Court may vary an ancillary order if—
(a) the Court considers there has been a
substantial change in circumstances
since the order was made; or
(b) the respondent consents to the
variation.
(3) The Court may revoke an ancillary order if—
(a) the Court is satisfied that the basis on
which the order was made no longer
exists; or
(b) the respondent consents to the
revocation.
Note
Section 135A specifies how consent is to be given.".
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82 Effect of registration of corresponding declaration
In section 96 of the Criminal Organisations
Control Act 2012—
(a) after "section 43(2)" insert "and (2B)";
(b) after "as if it were a" insert "restrictive".
83 Information to be kept on register
After section 131(1)(b) of the Criminal
Organisations Control Act 2012 insert—
"(ba) if the declaration applies to an organisation,
whether it is a prohibitive declaration or a
restrictive declaration;".
84 Annual report
For section 133(1)(c) of the Criminal
Organisations Control Act 2012 substitute—
"(c) the number of prohibitive declarations that
were in effect on the last day of that financial
year;
(ca) the number of restrictive declarations that
were in effect on the last day of that financial
year;".
85 New sections 135A, 135B and 135C inserted
After section 135 of the Criminal Organisations
Control Act 2012 insert—
"135A Consent
(1) This section applies in relation to the giving
of consent referred to in the following
provisions—
(a) section 19(2C) and (3A);
(b) section 21;
(c) section 29(6);
(d) section 29A(4);
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(e) section 43(1A)(b) and (2B)(b);
(f) section 51A;
(g) section 58(2)(b) and (6);
(h) section 58A(2)(b) and (3)(b).
(2) Consent is given by filing with the Court a
notice of consent that is—
(a) in the case of consent given by an
individual—signed by the individual; or
(b) in the case of consent given by a
company or a registered foreign
company within the meaning of the
Corporations Act—executed by the
company in accordance with
section 127 of that Act; or
(c) in the case of consent given by an
incorporated association—executed in
accordance with section 38 of the
Associations Incorporation Reform
Act 2012; or
(d) in the case of consent given by an
association incorporated under the law
of another State or Territory—signed
by a person authorised to execute a
document on behalf of the association
under the law of that State or Territory;
or
(e) in the case of consent given by an
unincorporated body or association—
signed by 2 office holders of the body
or association.
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135B Costs
(1) In relation to an application referred to in
section 9(1)—
(a) the applicant must bear the applicant's
own costs; and
(b) the respondent must bear the
respondent's own costs; and
(c) a person who, under section 17 or 41,
makes an objection to the application
must bear their own costs.
(2) Despite subsection (1), the Court may award
costs against a person referred to in that
subsection if the person has—
(a) made an application or objection that
the Court considers frivolous or
vexatious; or
(b) by an unreasonable act or omission
caused the other person to incur costs in
relation to the application or objection.
(3) If the Court awards costs against an
unincorporated body or association under
subsection (2), each member of the body or
association is jointly and severally liable for
those costs.
135C Adjournment before costs order made
(1) This section applies if, at a hearing for an
application referred to in section 9(1)—
(a) the Court decides that there are grounds
to award costs against a person under
section 135B(2); and
(b) neither the person nor the person's legal
representative (if any) is present at the
hearing.
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(2) The Court may—
(a) adjourn the proceeding; and
(b) give the person notice that an order for
costs will be made at the next hearing
of the proceeding unless the person
contests the making of the order at that
hearing.
(3) For the purposes of this section, an
organisation is present at a hearing if an
office holder of the organisation is present at
the hearing.".
86 Schedule amended
(1) After the heading to the Schedule to the Criminal
Organisations Control Act 2012 insert the
following note—
"Note
In relation to provisions in the Crimes Act 1958, see
paragraph (c) of the definition of applicable offence in
section 3(1).".
(2) In the Schedule to the Criminal Organisations
Control Act 2012 the following items are
repealed—
(a) item 3;
(b) item 5;
(c) items 6.1, 6.6, 6.10, 6.12, 6.14, 6.16, 6.18,
6.39, 6.40, 6.43, 6.44, 6.55, 6.58 and 6.88;
(d) items 7.1, 7.3 and 7.5.
(3) In the Schedule to the Criminal Organisations
Control Act 2012—
(a) in item 6.2, after "longarm" insert "without a
licence";
(b) in item 6.3, after "longarm" insert "without a
licence";
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s. 87
(c) in item 6.4, after "longarm" insert "without a
licence";
(d) in item 6.5, after "longarm" insert "without a
licence";
(e) in item 6.13, after "pre-1947" insert "general
category";
(f) in item 6.21, for "longarm licence for
category E longarms" substitute "licence for
category E longarms or category E
handguns";
(g) in item 6.35, after "longarm" insert
"or general category handgun";
(h) in item 6.41, for "acquiring a category E
handgun from" substitute "disposing of a
category A or B longarm to".
Division 2—Amendment of Firearms Act 1996
87 Definitions
(1) In section 3(1) of the Firearms Act 1996, in
the definition of prohibited person, after
paragraph (c) insert—
"(ca) a declared individual within the meaning of
the Criminal Organisations Control Act
2012; or
(cb) a person to whom a control order (within the
meaning of the Criminal Organisations
Control Act 2012) applies; or".
(2) In section 3(1) of the Firearms Act 1996 insert
the following definition—
"declared organisation member has the same
meaning as it has in the Criminal
Organisations Control Act 2012;".
65
See:
Act No.
66/1996.
Reprint No. 7
as at
18 March
2013
and
amending
Act Nos
17/2014,
26/2014 and
37/2014.
LawToday:
www.
legislation.
vic.gov.au
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
s. 88
Part 3—Criminal Organisations Control
88 General discretion of Chief Commissioner to refuse
a longarm or handgun licence
At the end of section 17 of the Firearms Act
1996 insert—
"(2) An applicant, or a responsible person in
relation to an application, is presumed not to
be a fit and proper person for the purposes of
subsection (1)(c)(i) if he or she is a declared
organisation member.
(3) A presumption under subsection (2) may be
rebutted.".
89 General discretion of Chief Commissioner to refuse
a junior licence
At the end of section 20 of the Firearms Act
1996 insert—
"(2) An applicant is presumed not to be a fit and
proper person for the purposes of subsection
(1)(b)(i) if he or she is a declared
organisation member.
(3) A presumption under subsection (2) may be
rebutted.".
90 General discretion of Chief Commissioner to refuse
a firearms collectors licence
At the end of section 23 of the Firearms Act
1996 insert—
"(2) An applicant, or a responsible person in
relation to an application, is presumed not to
be a fit and proper person for the purposes of
subsection (1)(c)(i) if he or she is a declared
organisation member.
(3) A presumption under subsection (2) may be
rebutted.".
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91 General discretion of Chief Commissioner to refuse
a firearms heirlooms licence
At the end of section 27 of the Firearms Act
1996 insert—
"(2) An applicant, or a responsible person in
relation to an application, is presumed not to
be a fit and proper person for the purposes of
subsection (1)(b)(i) if he or she is a declared
organisation member.
(3) A presumption under subsection (2) may be
rebutted.".
92 General discretion of Chief Commissioner to refuse
a firearms ammunition collectors licence
At the end of section 29 of the Firearms Act
1996 insert—
"(2) An applicant, or a responsible person in
relation to an application, is presumed not to
be a fit and proper person for the purposes of
subsection (1)(c)(i) if he or she is a declared
organisation member.
(3) A presumption under subsection (2) may be
rebutted.".
93 Review of decision not to issue a licence
In section 34(2) of the Firearms Act 1996,
for "section 17(c)(ia)" substitute
"section 17(1)(c)(ia)".
94 General discretion of Chief Commissioner to refuse
to renew a licence or to alter or vary the conditions
of a licence
After section 42(2) of the Firearms Act 1996
insert—
"(3) An applicant, or a responsible person in
relation to an application, is presumed not to
be a fit and proper person for the purposes of
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subsection (2)(c)(i) if he or she is a declared
organisation member.
(4) A presumption under subsection (3) may be
rebutted.".
95 Power of Chief Commissioner to cancel licence
under this Part
After section 49(2) of the Firearms Act 1996
insert—
"(2A) A holder of a licence, or a responsible person
in relation to a licence, is presumed not to be
a fit and proper person for the purposes of
subsection (1)(f) if he or she is a declared
organisation member.
(2B) A presumption under subsection (2A) may
be rebutted.".
96 Provisional general category handgun licences
After section 58A(2) of the Firearms Act 1996
insert—
"(2A) An applicant is presumed not to be a fit and
proper person for the purposes of subsection
(2)(b) if he or she is a declared organisation
member.
(2B) A presumption under subsection (2A) may
be rebutted.".
97 General discretion of Chief Commissioner to refuse
a dealers licence
At the end of section 61 of the Firearms Act
1996 insert—
"(2) A person referred to in subsection (1)(c)(i) is
presumed not to be a fit and proper person
for the purposes of subsection (1)(c)(i)(A) if
he or she is a declared organisation member.
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(3) A presumption under subsection (2) may be
rebutted.".
98 General discretion of Chief Commissioner to refuse
to renew a dealers licence
At the end of section 73 of the Firearms Act
1996 insert—
"(2) A person referred to in subsection (1)(b)(i) is
presumed not to be a fit and proper person
for the purposes of that paragraph if he or
she is a declared organisation member.
(3) A presumption under subsection (2) may be
rebutted.".
99 Power of Chief Commissioner to cancel a dealers
licence
At the end of section 79 of the Firearms Act
1996 insert—
"(2) A person referred to in subsection (1)(e) is
presumed not to be a fit and proper person
for the purposes of that paragraph if he or
she is a declared organisation member.
(3) A presumption under subsection (2) may be
rebutted.".
100 General discretion of Chief Commissioner to refuse
to issue a permit to acquire
After section 104(1) of the Firearms Act 1996
insert—
"(1A) An applicant or a responsible person in
relation to an application is presumed not to
be a fit and proper person for the purposes of
subsection (1)(b)(i) if he or she is a declared
organisation member.
(1B) A presumption under subsection (1A) may
be rebutted.".
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101 Permit to store handguns
After section 121A(2) of the Firearms Act 1996
insert—
"(2A) An applicant is presumed not to be a fit and
proper person for the purposes of subsection
(2)(b) if he or she is a declared organisation
member.
(2B) A presumption under subsection (2A) may
be rebutted.".
102 Power of delegation
In section 176(b) of the Firearms Act 1996,
for "section 17(c)(ia)" substitute
"section 17(1)(c)(ia)".
Division 3—Amendment of Fortification Removal Act 2013
103 Definitions
See:
Act No.
48/2013
and
amending
Act No.
37/2014.
LawToday:
www.
legislation.
vic.gov.au
In section 3 of the Fortification Removal Act
2013, in the definition of specified offence, in
paragraph (a), for "10 years" substitute "5 years".
104 Schedule amended
(1) After the heading to the Schedule to the
Fortification Removal Act 2013 insert the
following note—
"Note
In relation to provisions in the Crimes Act 1958, see
paragraph (c) of the definition of specified offence in
section 3.".
(2) In the Schedule to the Fortification Removal Act
2013 the following items are repealed—
(a) item 3;
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(b) item 5;
(c) items 6.1, 6.6, 6.10, 6.12, 6.14, 6.16, 6.18,
6.39, 6.40, 6.43, 6.44, 6.55, 6.58 and 6.88;
(d) items 7.1, 7.3 and 7.5.
Division 4—Amendment of Major Crime (Investigative
Powers) Act 2004
105 Definitions
In section 3 of the Major Crime (Investigative
Powers) Act 2004—
(a) for the definition of organised crime offence
substitute—
"organised crime offence has the meaning
given by section 3AA;";
(b) insert the following definitions—
"declared individual has the same meaning
as it has in the Criminal
Organisations Control Act 2012;
declared organisation member has the same
meaning as it has in the Criminal
Organisations Control Act 2012;".
106 New section 3AA inserted
After section 3 of the Major Crime
(Investigative Powers) Act 2004 insert—
"3AA Meaning of organised crime offence
(1) For the purposes of this Act, organised
crime offence means an indictable offence
against the law of Victoria that—
(a) is punishable by level 5 imprisonment
(10 years maximum) or more; and
(b) involves 2 or more offenders; and
(c) satisfies subsection (2) or (3).
71
See:
Act No.
79/2004.
Reprint No. 3
as at
1 March 2013
and
amending
Act Nos
79/2004,
70/2013,
17/2014 and
37/2014.
LawToday:
www.
legislation.
vic.gov.au
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
s. 107
Part 3—Criminal Organisations Control
(2) An offence satisfies this subsection if the
offence—
(a) involves substantial planning and
organisation; and
(b) forms part of systemic and continuing
criminal activity; and
(c) has a purpose of obtaining profit, gain,
power or influence or of sexual
gratification where the victim is a child.
(3) An offence satisfies this subsection if 2 or
more of the offenders involved in the offence
are, at any time, either declared individuals
or a declared organisation members.
(4) It is immaterial that the offence was
committed before the commencement of this
Act.".
107 Application for order
(1) In section 5(1) of the Major Crime
(Investigative Powers) Act 2004, for "subsection
(2)" substitute "subsections (2) and (2A)".
(2) After section 5(2) of the Major Crime
(Investigative Powers) Act 2004 insert—
"(2A) An offence that is an organised crime
offence because it satisfies section 3AA(3)
may be the subject of an application under
subsection (1) only if 2 or more of the
offenders involved in the offence are either
declared individuals or declared organisation
members at the time that the application is
made.".
__________________
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Part 4—Criminal Procedure
s. 108
PART 4—CRIMINAL PROCEDURE
Division 1—Amendment of Criminal Procedure Act 2009
relating to committal proceedings
108 Contents of case direction notice
(1) For section 119(c) of the Criminal Procedure
Act 2009 substitute—
"(c) must state the names of any witnesses that
the accused intends to seek leave to crossexamine, and for each witness the accused
must specify—
(i) each issue for which leave to crossexamine is sought; and
(ii) the reason why the evidence of the
witness is relevant to the issue; and
(iii) the reason why cross-examination of
the witness on the issue is justified;
Notes
1
At a committal mention hearing, the Magistrates'
Court may grant leave to cross-examine a
witness on one or more issues. If the Magistrates'
Court grants leave to cross-examine a witness,
the court must identify each issue on which the
witness may be cross-examined. See section
124(6).
2
If leave to cross-examine a witness is granted
under section 124, the Magistrates' Court may
grant leave, during the committal hearing, for the
accused to cross-examine the witness on other
issues. See section 132A.".
73
See:
Act No.
7/2009.
Reprint No. 3
as at
1 March 2013
and
amending
Act Nos
12/2013,
22/2013,
32/2013,
56/2013,
67/2013,
77/2013,
17/2014,
26/2014 and
37/2014.
LawToday:
www.
legislation.
vic.gov.au
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
Part 4—Criminal Procedure
s. 109
(2) For section 119(d) of the Criminal Procedure
Act 2009 substitute—
"(d) must state, in respect of each issue specified
in accordance with paragraph (c)—
(i) whether the informant consents to or
opposes leave being granted in respect
of that issue; and
(ii) if the informant opposes leave being
granted, the reason why leave is
opposed;".
109 Leave required to cross-examine other witnesses
(1) For section 124(2) of the Criminal Procedure
Act 2009 substitute—
"(2) In determining whether to grant leave to
cross-examine a witness, the Magistrates'
Court may have regard to whether the
informant consents to or opposes leave being
granted.".
(2) In section 124(3) of the Criminal Procedure Act
2009—
(a) for "If the informant does not consent to
leave to cross-examine a witness being
granted, the" substitute "The";
(b) after "grant leave" insert "to cross-examine a
witness".
(3) At the foot of section 124(4) of the Criminal
Procedure Act 2009 insert—
"Notes
1
Section 102 of the Evidence Act 2008 provides that
credibility evidence about a witness is not admissible
(the credibility rule).
2
Section 103(1) of the Evidence Act 2008 provides that
the credibility rule does not apply to evidence adduced
in cross-examination of a witness if the evidence could
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Part 4—Criminal Procedure
substantially affect the assessment of the credibility of
the witness.".
(4) After section 124(5) of the Criminal Procedure
Act 2009 insert—
"(6) If the Magistrates' Court grants leave to
cross-examine a witness, the court must
identify each issue on which the witness may
be cross-examined.".
110 Cross-examination of witnesses
(1) For section 132(1) of the Criminal Procedure
Act 2009 substitute—
"(1) An accused who obtains leave to
cross-examine a witness is limited to
cross-examining the witness on—
(a) the issues identified under
section 124(6); and
(b) the issues, if any, in relation to which
leave has been obtained under
section 132A.".
(2) For section 132(2)(a) of the Criminal Procedure
Act 2009 substitute—
"(a) the question does not relate to an issue in
relation to which leave has been obtained
under section 124 or 132A; or".
111 New section 132A inserted
After section 132 of the Criminal Procedure Act
2009 insert—
"132A Leave to cross-examine witness on
different issue
(1) This section applies if the Magistrates' Court
grants leave for the accused to cross-examine
a witness under section 124.
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Part 4—Criminal Procedure
s. 112
(2) The Magistrates' Court may grant leave for
the accused to cross-examine the witness on
an issue that was not identified under
section 124(6).
(3) In determining whether to grant leave, the
Magistrates' Court may have regard to
whether the informant consents to or opposes
leave being granted.
(4) The Magistrates' Court must not grant leave
unless the court is satisfied that—
(a) the accused has identified an issue to
which the proposed questioning relates
and has provided a reason why the
evidence of the witness is relevant to
that issue; and
(b) cross-examination of the witness on
that issue is justified.
(5) In determining whether cross-examination
on an issue is justified, the Magistrates'
Court must have regard to the matters
referred to in section 124(4) and (5).".
Division 2—Other amendments to Criminal Procedure
Act 2009
112 Definitions
In section 3 of the Criminal Procedure Act 2009
insert the following definition—
"traffic camera offence means—
(a) an offence under the Road Safety Act
1986 or regulations or rules under that
Act that is detected by a road safety
camera, a speed detector or a process
prescribed for the purposes of that Act;
or
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(b) an offence under the Melbourne City
Link Act 1995 that is detected by a
tolling device or a process prescribed
for the purposes of Part 4 of that Act; or
(c) an offence under the EastLink Project
Act 2004 that is detected by a tolling
device or a process prescribed for the
purposes of Part 9 of that Act;".
113 Summons for summary offence may be served by
ordinary service
(1) In section 17(1) of the Criminal Procedure Act
2009, after "summary offence" insert "(other than
a traffic camera offence)".
(2) In section 17(3) of the Criminal Procedure Act
2009, for "394(a)" substitute "394(1)(a)".
114 New section 17A inserted
After section 17 of the Criminal Procedure Act
2009 insert—
"17A Service of summons for traffic camera
offence
(1) A summons to answer to a charge for a
traffic camera offence may be served
personally on the accused in accordance with
section 391 or by ordinary service in
accordance with section 394.
(2) If a summons is served in accordance with
section 394(1)(a) or (ab), evidence of service
must state—
(a) how the informant ascertained the
address to which the summons was
posted; and
(b) the time and place of posting.".
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115 When full brief must be served
In section 39(1A)(a) of the Criminal Procedure
Act 2009, for "7 days" substitute "21 days".
116 Documents to be provided by police at first mention
hearing
For section 53A(3) of the Criminal Procedure
Act 2009 substitute—
"(3) This section does not apply to a proceeding
for a traffic camera offence.".
117 Ordinary service
After section 394(1)(a) of the Criminal
Procedure Act 2009 insert—
"(ab) if the document relates only to a traffic
camera offence, by sending a copy of the
document by prepaid ordinary post addressed
to the person to be served at a post office box
address nominated by the person; or".
118 New section 444 inserted
After section 443 of the Criminal Procedure Act
2009 insert—
"444 Transitional provision—Criminal
Organisations Control and Other Acts
Amendment Act 2014
(1) Sections 17 and 394 as amended by
sections 113 and 117 of the Criminal
Organisations Control and Other Acts
Amendment Act 2014 apply to a criminal
proceeding commenced on or after the day
on which sections 113 and 117 of that Act
come into operation, irrespective of when the
offence is alleged to have been committed.
(2) Section 17A as inserted by section 114 of the
Criminal Organisations Control and
Other Acts Amendment Act 2014 applies
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to a criminal proceeding commenced on or
after the day on which section 114 of that
Act comes into operation, irrespective of
when the offence is alleged to have been
committed.
(3) Section 39 as amended by section 115 of the
Criminal Organisations Control and
Other Acts Amendment Act 2014 applies
to a criminal proceeding commenced on or
after the day on which section 115 of that
Act comes into operation, irrespective of
when the offence is alleged to have been
committed.
(4) Section 119 as amended by section 108 of
the Criminal Organisations Control and
Other Acts Amendment Act 2014 applies
to a committal proceeding in which a
committal mention hearing is held on or after
the day on which section 108 of that Act
comes into operation, irrespective of when
the committal proceeding commenced.
(5) Sections 124 and 132 as amended by
sections 109 and 110 of the Criminal
Organisations Control and Other Acts
Amendment Act 2014 apply to a committal
proceeding in which no committal mention
hearing or committal hearing has been held
before the day on which sections 109 and
110 of that Act come into operation,
irrespective of when the committal
proceeding commenced.
(6) Section 132A as inserted by section 111 of
the Criminal Organisations Control and
Other Acts Amendment Act 2014 applies
to a committal proceeding in which no
committal mention hearing or committal
hearing has been held before the day on
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which section 111 of that Act comes into
operation, irrespective of when the
committal proceeding commenced.".
__________________
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s. 119
PART 5—MENTAL IMPAIRMENT AND UNFITNESS TO BE
TRIED
Division 1—Amendment of Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997
119 Definitions
In section 3(1) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act
1997—
(a) for the definition of court substitute—
"court, except in Part 5A, means Supreme
Court or County Court and in
section 47 includes Magistrates' Court
and Children's Court;";
(b) in the definition of custodial supervision
order, before "means" insert ", except in
Part 5A,";
(c) in paragraph (a) of the definition of forensic
patient, after "Act" insert "(other than
Part 5A)";
(d) in the definition of forensic resident—
(i) in paragraph (a), after "institution"
insert "(other than under Part 5A)";
(ii) in paragraph (b), after "order" insert
"(other than under Part 5A)";
(e) in the definition of investigation, before
"means" insert ", except in Part 5A,";
(f) in the definition of non-custodial
supervision order, before "means" insert
", except in Part 5A,";
(g) in the definition of President, before
"means" insert ", except in Part 5A,";
81
See:
Act No.
65/1997.
Reprint No. 4
as at
28 June 2012
and
amending
Act Nos
17/2014,
26/2014 and
37/2014.
LawToday:
www.
legislation.
vic.gov.au
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
s. 120
Part 5—Mental Impairment and Unfitness to be Tried
(h) in the definition of special hearing, before
"means" insert ", except in Part 5A,";
(i) in the definition of supervision order, before
"means" insert ", except in Part 5A,";
(j) in the definition of victim, for "the offence."
substitute "the offence;";
(k) insert the following definitions—
"child has the same meaning as in the
Children, Youth and Families Act
2005;
youth justice centre has the same meaning as
in the Children, Youth and Families
Act 2005;
youth residential centre has the same
meaning as in the Children, Youth
and Families Act 2005.".
120 Application to courts and proceedings
In section 4(1) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act
1997—
(a) after "5" insert ", 5A"; and
(b) after "Parts" insert "5A,".
121 Application to Magistrates' Court
After section 5(2) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act
1997 insert—
"(3) This section does not apply to the Children's
Court.".
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122 New section 5A inserted
After section 5 of the Crimes (Mental
Impairment and Unfitness to be Tried) Act
1997 insert—
"5A Application to Children's Court
(1) If the Children's Court has jurisdiction to
hear and determine an indictable offence, the
Children's Court may determine in
accordance with Part 5A—
(a) the fitness of an accused to stand trial
for the offence; and
(b) a defence of mental impairment raised
to the offence.
Note
Section 516 of the Children, Youth and Families
Act 2005 sets out the jurisdiction of the Criminal
Division of the Children's Court.
(2) The defence of mental impairment as
provided for in section 38ZA and the
presumption in section 38ZB(1) apply to
summary offences and to indictable offences
heard and determined summarily in the
Children's Court.
(3) If the Children's Court finds a child not
guilty because of mental impairment of a
summary offence, the Children's Court must
discharge the child.".
123 Orders pending investigation into fitness
(1) After section 10(1)(b) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act
1997 insert—
"(ba) in the case of an accused who is a child,
subject to subsection (2), an order remanding
the accused in custody in a youth justice
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centre or a youth residential centre for a
specified period;".
(2) In section 10(2) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act
1997, after "place" insert "or a youth justice
centre or a youth residential centre".
124 Amendment of section heading
In the heading to section 14A of the Crimes
(Mental Impairment and Unfitness to be Tried)
Act 1997, for "plead" substitute "stand trial".
125 New Part 5A inserted
After Part 5 of the Crimes (Mental Impairment
and Unfitness to be Tried) Act 1997 insert—
"PART 5A—PROCEEDINGS IN THE
CHILDREN'S COURT AND APPEALS FROM
THOSE PROCEEDINGS
Division 1—General
38G Application of Part
(1) This Part applies to—
(a) indictable offences heard and
determined summarily by the Children's
Court; and
(b) committal proceedings in the Children's
Court; and
(c) appeals from—
(i) a finding by the Children's Court
that a child is unfit to stand trial;
and
(ii) a finding by the Children's Court
that a child is not guilty of an
indictable offence because of
mental impairment; and
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(iii) the making of a supervision order
by the Children's Court; and
(d) appeals by the Director of Public
Prosecutions against an order by the
Children's Court for unconditional
release of a child found not guilty
because of mental impairment of an
indictable offence.
(2) Division 4 and this Division apply to—
(a) summary offences heard and
determined by the Children's Court; and
(b) appeals from a finding by the Children's
Court that a child is not guilty of a
summary offence because of mental
impairment.
(3) Parts 6 (other than sections 39, 40(1)
and 47), 7, 7A and 7B do not apply to an
order under this Part.
38H Definitions
In this Part—
Chief Commissioner of Police means the
Chief Commissioner of Police
appointed under section 4 of the Police
Regulation Act 1958;
Children's Court means the Children's Court
constituted in accordance with
section 38I;
custodial supervision order means a
supervision order referred to in
section 38ZH(5)(a);
custody means detention in a youth justice
centre or a youth residential centre;
investigation means investigation under
Division 2;
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magistrate has the same meaning as in the
Children, Youth and Families Act
2005;
non-custodial supervision order means a
supervision order referred to in
section 38ZH(5)(b);
President has the same meaning as in the
Children, Youth and Families Act
2005;
return date, in relation to a proceeding in a
court, means any date on which the
proceeding is listed before the court;
special hearing means a hearing under
Division 3;
supervision order means an order made
under section 38ZH.
38I Constitution of Children's Court
(1) If the question of the fitness of a child to
stand trial arises or the defence of mental
impairment is raised in a proceeding in the
Children's Court—
(a) if the offence is punishable by level 2
imprisonment (25 years maximum), the
Children's Court must be constituted by
the President or, if the President is
unavailable, a magistrate nominated by
the President; or
(b) in any other case, the Children's Court
must be constituted by the President or
a magistrate.
(2) Section 504(8) of the Children, Youth and
Families Act 2005 does not apply to a
proceeding referred to in subsection (1).
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38J Remand in custody
(1) The Children's Court or an appellate court
must not remand a child in custody unless it
is satisfied that there is no practicable
alternative in the circumstances.
(2) The Children's Court or an appellate court
must not make an order remanding a child in
custody unless it has received a certificate
under section 47 stating that the facilities or
services necessary for that order are
available.
Division 2—Unfitness to stand trial
38K When is a child unfit to stand trial?
(1) A child is unfit to stand trial for an indictable
offence if, because the child's mental
processes are disordered or impaired, the
child is or, at some time during the hearing
in the Children's Court, will be—
(a) unable to understand the nature of the
charge; or
(b) unable to enter a plea to the charge; or
(c) unable to understand the nature of the
hearing (namely that it is an inquiry as
to whether the child committed the
offence); or
(d) unable to follow the course of the
hearing; or
(e) unable to understand the substantial
effect of any evidence that may be
given in support of the prosecution; or
(f) unable to give instructions to his or her
legal practitioner.
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(2) A child is not unfit to stand trial only
because he or she is suffering from memory
loss.
38L Presumptions, standard of proof etc.
(1) A child is presumed to be fit to stand trial.
(2) The presumption is rebutted only if it is
established, on an investigation under this
Division, that the child is unfit to stand trial.
(3) The question of a child's fitness to stand
trial—
(a) is a question of fact; and
(b) is to be determined on the balance of
probabilities.
(4) If the question of a child's fitness to stand
trial is raised by the prosecution or the
defence, the party raising it bears the onus of
rebutting the presumption of fitness.
(5) If the question is raised by the Children's
Court, the prosecution has carriage of the
matter, but no party bears any onus of proof
in relation to it.
(6) If the defence intends to raise the question of
a child's fitness to stand trial, the defence
must give reasonable notice of that intention
to the prosecution.
38M Committals
(1) If the question of the fitness of a child to
stand trial arises in a committal proceeding
for an indictable offence—
(a) the committal proceeding must be
completed in accordance with
Chapter 4 of the Criminal Procedure
Act 2009; and
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(b) the child must not be discharged only
because the question has been raised;
and
(c) if the child is committed for trial, the
question must be reserved for
consideration by the trial judge.
(2) If a child is committed for trial and the
question of his or her fitness to stand trial has
been reserved under subsection (1)(c)—
(a) an indictment must be filed in respect
of the offence; and
(b) the issue of whether there is a real and
substantial question as to the fitness of
the child to stand trial must be
determined by the trial judge; and
(c) if the trial judge determines that there is
a real and substantial question, an
investigation must be held under Part 2.
38N Reservation of question of fitness to stand
trial by Children's Court
(1) At any time after a charge-sheet has been
filed against a child, if it appears to the
Children's Court that there is a real and
substantial question as to the fitness of the
child to stand trial, the court must reserve for
investigation under this Division the
question of the fitness of the child to stand
trial.
(2) At any time during a hearing in the
Children's Court, if it appears to the court
that there is a real and substantial question as
to the fitness of the child to stand trial, the
court must adjourn or discontinue the
hearing and proceed with an investigation
under this Division.
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(3) Nothing in this Act prevents the question of
the fitness of a child to stand trial from being
raised more than once in the same
proceeding.
Note
See section 38L(6) for the requirement that reasonable
notice be given to the prosecution if the defence intends to
raise the question of fitness to stand trial.
38O Time limit for investigation into fitness
An investigation into the fitness of a child to
stand trial must be completed as soon as
possible after the question is reserved under
section 38N and in any event within
3 months.
38P Children's Court may make orders
pending investigation into fitness
If the Children's Court reserves for
investigation the question of the fitness of a
child to stand trial, it may make any one or
more of the following orders—
(a) an order granting the child bail;
(b) an order remanding the child in
custody;
(c) if it is of the opinion that it is in the
interests of justice to do so, an order—
(i) that the child undergo an
examination by a registered
medical practitioner or registered
psychologist; and
(ii) that the results of the examination
be put before the court;
(d) any other order the court thinks
appropriate.
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38Q Procedure on investigation
(1) On an investigation into the fitness of a child
to stand trial—
(a) the Children's Court must hear any
relevant evidence and submissions put
to the court by the prosecution or the
defence; and
(b) if it is of the opinion that it is in the
interests of justice to do so, the
Children's Court may—
(i) call evidence on its own initiative;
and
(ii) require the child to undergo an
examination by a registered
medical practitioner or registered
psychologist; and
(iii) require the results of any such
examination to be put before the
court.
(2) Nothing in subsection (1) prevents the
application of Part 3.10 of the Evidence Act
2008 to an investigation, and for the
purposes of the application of Part 3.10 the
investigation is taken to be a criminal
proceeding.
(3) If the Children's Court finds that the child is
unfit to stand trial, the court must—
(a) determine, by reference to any relevant
evidence and on the balance of
probabilities, whether or not the child is
likely to become fit to stand trial within
the next 6 months; and
(b) if the court determines that the child is
likely to become fit within the next
6 months, specify the period by the end
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of which the child is likely to be fit to
stand trial.
(4) For the purposes of subsection (3) the
Children's Court may call further evidence
on its own initiative.
38R What happens after an investigation?
(1) If the Children's Court finds that a child is fit
to stand trial, the hearing must be
commenced or resumed in accordance with
usual criminal procedures as soon as possible
and in any event within 3 months.
(2) If the Children's Court finds that a child is
not fit to stand trial and the court determines
that the child is likely to become fit within
the next 6 months, the court must adjourn the
matter for the period specified under
section 38Q(3)(b) and may—
(a) grant the child bail; or
(b) remand the child in custody for a
specified period (not exceeding the
period specified under
section 38Q(3)(b)); or
(c) make any other order the court thinks
appropriate.
(3) If the Children's Court finds that a child is
not fit to stand trial and the court determines
that the child is not likely to become fit
within the next 6 months, the court—
(a) must proceed to hold a special hearing
under Division 3 as soon as possible
and in any event within 3 months; and
(b) may remand the child in custody or
grant bail to the child or make any other
order that the court considers
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appropriate for the safe custody of the
child until the special hearing.
38S Abridgment of adjournment
(1) At any time during a period of adjournment
under section 38R(2) the child or the
prosecutor may apply to the Children's
Court—
(a) for an order that the hearing commence
or resume, if the child or the prosecutor
is of the opinion that the child has
become fit to stand trial; or
(b) for an order that the court proceed to
hold a special hearing, if the child or
the prosecutor is of the opinion that the
child will not become fit to stand trial
by the end of the period of 6 months
after the first finding of unfitness.
(2) An application under subsection (1) must be
accompanied by a report on the mental
condition of the child by a registered medical
practitioner or registered psychologist.
(3) On an application under subsection (1) the
Children's Court must—
(a) dismiss the application; or
(b) if satisfied that the child has become fit
to stand trial, make an order that the
hearing commence or resume as soon
as possible; or
(c) if satisfied that the child will not
become fit to stand trial by the end of
the period of 6 months after the first
finding of unfitness, make an order that
the court proceed to hold a special
hearing as soon as possible and in any
event within 3 months.
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38T What happens at the end of an
adjournment?
(1) At the end of the period of adjournment
under section 38R(2), the child is presumed
to be fit to stand trial unless a real and
substantial question of fitness is raised again.
(2) If a real and substantial question of fitness is
raised again, the Children's Court—
(a) must proceed to hold a special hearing
under Division 3 as soon as possible
and in any event within 3 months; and
(b) may remand the child in custody or
grant bail to the child or make any other
order that the court considers
appropriate for the safe custody of the
child until the special hearing.
38U Appeal in relation to fitness to stand trial
(1) In a criminal proceeding in the Children's
Court, if the question has arisen whether a
child is unfit to stand trial and on an
investigation under this Division the
Children's Court finds that the child is unfit
to stand trial, the child may appeal to the
County Court or, if the Children's Court was
constituted by the President, to the Trial
Division of the Supreme Court against the
finding on any ground of appeal.
(2) An appeal under subsection (1) is
commenced by filing a notice of appeal with
a registrar of the Children's Court at any
venue of the Children's Court within 28 days
after the day on which the finding is made.
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(3) A copy of the notice of appeal must be
served on the respondent in accordance with
section 392 of the Criminal Procedure Act
2009 within 7 days after the day on which
the notice is filed.
(4) A notice of appeal must be in the form
prescribed by the rules of the appellate court.
(5) The Children's Court must transmit a notice
of appeal filed under this section to the
appellate court.
(6) On an appeal under subsection (1), the
appellate court must allow the appeal if the
child satisfies the court that—
(a) the finding of unfitness to stand trial is
unreasonable or cannot be supported
having regard to the evidence; or
(b) the Children's Court made a material
error of law; or
(c) for any other reason the appellate court
considers that the finding should not
stand.
(7) In any other case, the appellate court must
dismiss an appeal under subsection (1).
(8) If the appellate court allows an appeal under
subsection (1), it must set aside the finding
of unfitness to stand trial and either—
(a) refer the matter to the Children's Court
for hearing and determination of the
offence charged against the child; or
(b) remit the matter for a rehearing of the
investigation under this Division as to
whether the child is fit to stand trial.
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(9) Despite subsection (8), if the appellate court
allows an appeal under subsection (1) but
considers that the child is unfit to stand trial,
it may affirm the finding and refer the matter
to the Children's Court.
(10) If the appellate court remits a matter under
subsection (8)(b)—
(a) it may give directions concerning the
manner and scope of the rehearing; and
(b) the Children's Court conducting the
rehearing must hear and determine the
matter in accordance with the
directions, if any.
(11) On remitting or referring a matter under this
section, the appellate court may remand the
child in custody or grant bail to the child or
make any other order that the court considers
appropriate for the safe custody of the child.
Division 3—Special hearings
38V Purpose of special hearings
The purpose of a special hearing is to
determine whether, on the evidence
available, the child—
(a) is not guilty of the offence; or
(b) is not guilty of the offence because of
mental impairment; or
(c) committed the offence charged or an
offence available as an alternative.
38W Procedure at special hearings
(1) A special hearing is to be conducted as
nearly as possible as if it were a hearing and
determination of a charge for an offence.
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(2) Without limiting subsection (1), at a special
hearing—
(a) the child must be taken to have pleaded
not guilty to the offence; and
(b) the child may raise any defence that
could be raised if the special hearing
were a hearing of the charge, including
the defence of mental impairment; and
(c) the rules of evidence apply; and
(d) subject to section 524 of the Children,
Youth and Families Act 2005, the
child must be legally represented; and
Note
See section 525(2) of the Children, Youth and
Families Act 2005.
(e) any alternative finding that would be
available if the special hearing were a
hearing and determination of the charge
is available to the Children's Court.
38X Findings at special hearings
(1) The following findings are available to the
Children's Court at a special hearing—
(a) not guilty of the offence charged;
(b) not guilty of the offence because of
mental impairment;
(c) the child committed the offence
charged or an offence available as an
alternative.
(2) To make a finding under subsection (1)(c)
the Children's Court must be satisfied
beyond reasonable doubt, on the evidence
available, that the child committed the
offence charged or an offence available as an
alternative.
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38Y Effect of findings
(1) If the Children's Court makes a finding under
section 38X(1)(a), the child is to be taken for
all purposes to have been found not guilty at
a hearing and determination of the charge.
(2) A finding under section 38X(1)(b) is to be
taken for all purposes to be a finding of not
guilty because of mental impairment at a
hearing and determination of the charge.
Note
Section 38ZE provides for appeals against a finding of
not guilty because of mental impairment.
(3) A finding under section 38X(1)(c)—
(a) constitutes a qualified finding of guilt
and does not constitute a basis in law
for any conviction for the offence to
which the finding relates; and
(b) constitutes a bar to further prosecution
in respect of the same circumstances;
and
(c) is subject to appeal in the same manner
as if the child had been convicted of the
offence in a hearing and determination
of the charge.
(4) If the Children's Court makes a finding under
section 38X(1)(c), the court must—
(a) declare that the child is liable to
supervision under Division 5; or
(b) order the child to be released
unconditionally.
(5) The Children's Court must not declare a
child liable to supervision unless the court
considers that the declaration is necessary in
all the circumstances including—
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(a) whether adequate supervision is
available in the community; and
(b) whether the child has complied with
community supervision and the extent
of that compliance; and
(c) whether a declaration is required for the
protection of the child or the
community.
(6) The Children's Court must not order a child
to be released unconditionally unless the
court is satisfied that, if necessary, the child
is receiving appropriate treatment or support
for the child's mental health or disability.
(7) The Children's Court may adjourn a hearing
to enable evidence of the matters referred to
in subsections (5) and (6) to be obtained.
38Z Court may make orders pending making
of supervision order
If the Children's Court declares a child liable
to supervision, the court may make any one
or more of the following orders pending the
making of a supervision order—
(a) an order granting the child bail;
(b) an order remanding the child in
custody;
(c) any other order the court thinks
appropriate.
Division 4—Defence of mental impairment
38ZA Defence of mental impairment
(1) The defence of mental impairment is
established for a child charged with an
offence if, at the time of engaging in conduct
constituting the offence, the child was
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suffering from a mental impairment that had
the effect that—
(a) he or she did not know the nature and
quality of the conduct; or
(b) he or she did not know that the conduct
was wrong (that is, he or she could not
reason with a moderate degree of sense
and composure about whether the
conduct, as perceived by reasonable
people, was wrong).
(2) If the defence of mental impairment is
established, the child must be found not
guilty because of mental impairment.
38ZB Presumptions, standard of proof etc.
(1) A child is presumed not to have been
suffering from a mental impairment having
the effect referred to in section 38ZA(1) until
the contrary is proved.
(2) The question whether a child was suffering
from a mental impairment having the effect
referred to in section 38ZA(1)—
(a) is a question of fact; and
(b) is to be determined on the balance of
probabilities.
(3) If the defence of mental impairment is raised
by the prosecution or the defence, the party
raising it bears the onus of rebutting the
presumption.
(4) If the defence intends to raise the question of
mental impairment, the defence must give
reasonable notice of that intention to the
prosecution.
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38ZC When may the question of mental
impairment be raised?
(1) The question of mental impairment may be
raised at any time during a hearing by the
defence or, with the leave of the Children's
Court, by the prosecution.
(2) A child must not be discharged in a
committal proceeding only because the
defence of mental impairment has been
raised.
38ZD Effect of finding of not guilty because of
mental impairment
(1) If a child is found not guilty because of
mental impairment of an indictable offence
heard and determined summarily in the
Children's Court, the court must—
(a) declare that the child is liable to
supervision under Division 5; or
(b) order the child to be released
unconditionally.
(2) The Children's Court must not declare a
child liable to supervision unless the court
considers that the declaration is necessary in
all the circumstances including—
(a) whether adequate supervision is
available in the community; and
(b) whether the child has complied with
community supervision and the extent
of that compliance; and
(c) whether a declaration is required for the
protection of the child or the
community.
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(3) The Children's Court must not order a child
to be released unconditionally unless the
court is satisfied that, if necessary, the child
is receiving appropriate treatment or support
for the child's mental health or disability.
(4) The Children's Court may adjourn a hearing
to enable evidence of the matters referred to
in subsections (2) and (3) to be obtained.
38ZE Appeal against mental impairment finding
(1) In a criminal proceeding in the Children's
Court, if a finding of not guilty because of
mental impairment is recorded against a
child, the child may appeal to the County
Court or, if the Children's Court was
constituted by the President, to the Trial
Division of the Supreme Court against the
finding on any ground of appeal.
(2) An appeal under subsection (1) is
commenced by filing a notice of appeal with
a registrar of the Children's Court at any
venue of the Children's Court within 28 days
after the day on which the finding is made.
(3) A copy of the notice of appeal must be
served on the respondent in accordance with
section 392 of the Criminal Procedure Act
2009 within 7 days after the day on which
the notice is filed.
(4) A notice of appeal must be in the form
prescribed by the rules of the appellate court.
(5) The Children's Court must transmit a notice
of appeal filed under this section to the
appellate court.
(6) On an appeal under subsection (1), the
appellate court must allow the appeal if the
child satisfies the court that—
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(a) the finding of the Children's Court is
unreasonable or cannot be supported
having regard to the evidence; or
(b) as a result of an error or an irregularity
in, or in relation to, the hearing there
has been a substantial miscarriage of
justice; or
(c) for any other reason there has been a
substantial miscarriage of justice.
(7) Despite subsection (6), the appellate court
may dismiss an appeal that would otherwise
be allowed under that subsection if—
(a) none of the grounds for allowing the
appeal relates to the issue of the mental
impairment of the appellant; and
(b) the court considers that, but for the
mental impairment of the appellant, the
proper verdict would have been that the
appellant was guilty of an offence other
than the offence charged.
(8) In any other case, the appellate court must
dismiss an appeal under subsection (1).
(9) If the appellate court—
(a) allows an appeal under subsection (1)
on a ground that the finding of not
guilty because of mental impairment
ought not to stand; and
(b) considers that the proper finding would
have been guilty of an offence, whether
the offence charged or an offence
available as an alternative verdict—
the appellate court must substitute for the
finding a finding of guilty of that offence and
may make any order, or exercise any power,
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that the Children's Court could have made or
exercised.
(10) Subject to subsection (9), if the appellate
court allows an appeal under subsection (1),
it must set aside the finding and either—
(a) enter a finding of not guilty of the
offence charged; or
(b) order a new trial.
(11) If the appellate court orders a new trial, it
may remand the child in custody or grant
bail to the child or make any other order that
the court considers appropriate for the safe
custody of the child.
38ZF Appeal against unconditional release
(1) The Director of Public Prosecutions may
appeal to the County Court or, if the
Children's Court was constituted by the
President, to the Trial Division of the
Supreme Court against an order for
unconditional release under section
38ZD(1)(b) if he or she considers that—
(a) the order should not have been made;
and
(b) an appeal should be brought in the
public interest.
(2) An appeal under subsection (1) is
commenced by filing a notice of appeal with
a registrar of the Children's Court at any
venue of the Children's Court within 28 days
after the day on which the order is made.
(3) A notice of appeal under subsection (2) must
be signed by the Director of Public
Prosecutions personally.
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(4) A copy of the notice of appeal must be
served personally on the child in accordance
with section 391 of the Criminal Procedure
Act 2009 within 7 days after the day on
which the notice of appeal is filed.
(5) The Director of Public Prosecutions must
provide a copy of the notice of appeal to the
legal practitioner who last represented the
child in the proceeding to which the appeal
relates, if that legal practitioner can
reasonably be identified.
(6) A notice of appeal must be in the form
prescribed by the rules of the appellate court.
(7) The Children's Court must transmit a notice
of appeal filed under this section to the
appellate court.
(8) On an appeal under subsection (1), the
appellate court may—
(a) confirm the order; or
(b) set aside the order and by order declare
that the child is liable to supervision
under Division 5.
(9) The appellate court must not declare a child
liable to supervision unless the court
considers that the declaration is necessary in
all the circumstances including—
(a) whether supervision is available in the
community; and
(b) whether the child has complied with
community supervision and the extent
of that compliance; and
(c) whether a declaration is required for the
protection of the child or the
community.
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(10) If the appellate court declares a child liable
to supervision, the appellate court may—
(a) remit the matter, with or without
directions, to the Children's Court; or
(b) make a supervision order in respect of
the child.
(11) If the appellate court remits a matter to the
Children's Court under subsection (10)(a),
that court must make a supervision order in
respect of the person in accordance with this
Act and any directions given by the appellate
court.
(12) The appellate court may remand the child in
custody or grant bail to the child or make any
other order that the court considers
appropriate for the safe custody of the child
pending the making of a supervision order in
respect of the child.
Division 5—Disposition of children declared to
be liable to supervision
38ZG Application of Division
This Division continues to apply, for the
duration of a supervision order made under
this Division, to a person who is no longer a
child.
Note
Section 516 of the Children, Youth and Families Act 2005
provides for a person who is no longer a child before or
during the hearing of a charge for an offence but was a child
when the proceeding for the offence was commenced.
38ZH Supervision orders
(1) If the Children's Court declares that a child is
liable to supervision under this Division, the
court must make a supervision order in
respect of the child.
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(2) The purpose of a supervision order is to
ensure that a child receives treatment,
support, guidance and assistance for the
child's mental impairment or other condition
or disability.
(3) A custodial supervision order has an
additional purpose of protecting the child or
the community while the child receives the
treatment, support, guidance and assistance
referred to in subsection (2).
(4) A child may be subject to a custodial
supervision order only for as long as is
required for the protection of the child or the
community.
(5) A supervision order may—
(a) commit the child to custody (custodial
supervision order); or
(b) release the child on conditions decided
by the Children's Court and specified in
the order (non-custodial supervision
order).
(6) The Children's Court must not make a
supervision order unless it has received—
(a) a report under Division 6 as to
supervision; and
(b) a certificate under section 47 stating
that the facilities or services necessary
for the supervision order are available.
(7) The Children's Court must not make a
custodial supervision order unless the court
finds that—
(a) there is no practicable alternative in the
circumstances; and
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(b) the order is required for the protection
of the child or the community.
38ZI How long does a supervision order last?
(1) A supervision order is for a term not
exceeding 6 months that is specified by the
Children's Court.
(2) When making a supervision order, the
Children's Court must direct that the matter
be brought back to the court for review at the
end of the period specified by the court.
Note
The court's powers on review are contained in
section 38ZO (for custodial supervision orders) and
section 38ZP (for non-custodial supervision orders).
(3) The term of a supervision order may be
extended more than once by a maximum of
6 months but so that the total period of the
order (including custodial supervision orders
and non-custodial supervision orders) does
not exceed—
(a) in the case of a child aged 10 years or
more but under 15 years at the time of
the making of the supervision order,
12 months; and
(b) in the case of a child aged 15 years or
more but under 21 years at the time of
the making of the supervision order,
24 months.
38ZJ Appeal against supervision order
(1) A child in respect of whom a supervision
order is made may appeal to the County
Court or, if the Children's Court was
constituted by the President, to the Trial
Division of the Supreme Court against the
supervision order.
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(2) The Director of Public Prosecutions, the
Attorney-General, the Secretary to the
Department of Human Services or the
Secretary to the Department of Health may
appeal to the County Court or, if the
Children's Court was constituted by the
President, to the Trial Division of the
Supreme Court against a supervision order if
he or she considers that—
(a) a different supervision order should
have been made; and
(b) an appeal should be brought in the
public interest.
(3) An appeal under this section is commenced
by filing a notice of appeal with a registrar of
the Children's Court at any venue of the
Children's Court within 28 days after the day
on which the order is made.
(4) If the appeal is commenced by a child in
respect of whom a supervision order is made,
a copy of the notice of appeal must be served
on the respondent in accordance with
section 392 of the Criminal Procedure Act
2009 within 7 days after the day on which
the notice is filed.
(5) If the appeal is commenced by the Secretary
to the Department of Human Services, the
Secretary to the Department of Health, the
Director of Public Prosecutions or the
Attorney-General—
(a) the notice of appeal must be signed by
that person personally; and
(b) a copy of the notice of appeal must be
served personally on the child in
accordance with section 391 of the
Criminal Procedure Act 2009 within
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7 days after the day on which the notice
is filed; and
(c) that person must provide a copy of the
notice of appeal to the legal practitioner
who last represented the child in the
proceeding when the supervision order
was made, if that legal practitioner can
reasonably be identified.
(6) A notice of appeal must be in the form
prescribed by the rules of the appellate court.
(7) The Children's Court must transmit a notice
of appeal filed under this section to the
appellate court.
(8) On an appeal under this section, the appellate
court may—
(a) confirm the supervision order; or
(b) set aside the supervision order and
make another supervision order in
substitution for it; or
(c) set aside the supervision order and
remit the matter, with or without
directions, to the Children's Court; or
(d) set aside the supervision order and
order the child who was subject to the
supervision order to be released
unconditionally.
(9) If the appellate court remits a matter to the
Children's Court under subsection (8)(c), the
Children's Court must make another
supervision order in accordance with this Act
and any directions given by the appellate
court.
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(10) The appellate court may make any one or
more of the following orders pending the
making of a supervision order in respect of a
child under this section—
(a) an order granting the child bail;
(b) an order remanding the child in
custody;
(c) if it is of the opinion that it is in the
interests of justice to do so, an order—
(i) that the child undergo an
examination by a registered
medical practitioner or registered
psychologist; and
(ii) that the results of the examination
be put before the court that is to
make the supervision order;
(d) any other order the court thinks
appropriate.
38ZK Non-compliance with non-custodial
supervision order
(1) A person having the supervision of a child
under a non-custodial supervision order
(the supervisor), the Secretary to the
Department of Human Services or the
Secretary to the Department of Health may
apply to the Children's Court for a variation
of the order if it appears to the supervisor,
the Secretary to the Department of Human
Services or the Secretary to the Department
of Health that the child has failed to comply
with the order.
(2) The Children's Court may order that a
warrant to arrest be issued against the child
subject to the non-custodial supervision
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order if the child does not attend before the
court on the hearing of the application.
(3) If the Children's Court is satisfied by
evidence on oath, whether orally or by
affidavit, or by the admission of the child
subject to the non-custodial supervision
order that the child has failed to comply with
the order, the court must, by order—
(a) confirm the order; or
(b) vary the conditions of the order; or
(c) vary the order to a custodial supervision
order.
Note
Section 47 requires that a certificate under that section
be provided before a court makes a custodial
supervision order.
(4) If the Children's Court varies a non-custodial
supervision order to a custodial supervision
order before the end of the term of the order,
that term continues to run.
38ZL Emergency power of apprehension
(1) A child subject to a non-custodial
supervision order may be apprehended by an
appropriate person if the appropriate person
reasonably believes—
(a) that the child has failed to comply with
the order; and
(b) that the safety of the child or members
of the public will be seriously
endangered if the child is not
apprehended.
(2) Subject to subsection (4), a child who is
apprehended under subsection (1) is to be
detained in custody and, if necessary, treated
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or provided with services for his or her
condition.
(3) For the purpose of apprehending a child and
taking them to a place of detention, the
appropriate person may with such assistance
as is required and such force as may be
reasonably necessary—
(a) enter any premises in which he or she
has reasonable grounds for believing
that the child may be found; and
(b) if necessary to enable that child to be
apprehended and taken safely, use any
restraint that may be reasonably
necessary.
(4) A child who is apprehended under this
section must be released from detention
within 48 hours unless, within that period, an
application is made under section 38ZK(1)
for variation of the child's supervision order.
(5) The Children's Court must hear an
application referred to in subsection (4) as
soon as possible.
(6) In this section—
appropriate person, in relation to a child
subject to a supervision order, means—
(a) a person having supervision of the
child under the order; or
(b) a member of the police force; or
(c) an ambulance officer; or
(d) a person who is a member of a
class prescribed for the purposes
of this section.
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38ZM Warrant to arrest child breaching noncustodial supervision order who leaves
Victoria
(1) If at any time it appears to a person having
supervision of a child under a non-custodial
supervision order, the Secretary to the
Department of Human Services or the
Secretary to the Department of Health that
the child—
(a) has failed to comply with the order; and
(b) is no longer in Victoria—
the person having supervision, the Secretary
to the Department of Human Services or the
Secretary to the Department of Health may
apply to the Children's Court for a warrant to
arrest the child.
(2) If the Children's Court is satisfied by
evidence on oath, whether orally or by
affidavit, of the matters specified in
subsection (1)(a) and (b), the court may
order that a warrant to arrest be issued
against the child.
(3) When a child arrested under a warrant issued
under this section is returned to Victoria, he
or she is to be detained in custody and
treated or provided with services, if
necessary, for his or her condition.
(4) Despite subsection (3), a child must be
released from detention within 48 hours
unless, within that period, an application is
made under section 38ZK(1) for variation of
the child's supervision order.
(5) The Children's Court must hear an
application referred to in subsection (4) as
soon as possible.
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Notes
1
Section 498(1) of the Children, Youth and Families
Act 2005 provides an offence of being absent without
lawful authority from a youth justice centre or a youth
residential centre. Section 498(2) and (3) of that Act
provide for apprehension without warrant and the issue
of a search warrant.
2
Section 299 of the Mental Health Act 2014 provides
for a warrant to arrest a security patient absent without
leave who leaves Victoria.
38ZN Application for variation or revocation of
supervision order
(1) Any of the following may apply to the
Children's Court for a variation of a custodial
supervision order or a variation or revocation
of a non-custodial supervision order—
(a) the child subject to the order;
(b) a person having the custody, care,
control or supervision of that child;
(c) the Chief Commissioner of Police.
(2) If the Children's Court refuses an application
under this section by a child who is subject
to a custodial supervision order, the court
may order that a later application cannot be
made by that child until the next review of
the order by the court.
38ZO Variation of custodial supervision orders
on application or review
(1) On an application under section 38ZN for
variation of a custodial supervision order or
on a review of a custodial supervision order
directed under section 38ZI(2) or on a further
review of a custodial supervision order
directed under subsection (3) or section
38ZP(2), the Children's Court must, by order—
(a) confirm the order; or
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(b) vary the place of custody; or
(c) subject to this section, vary the order to
a non-custodial supervision order.
(2) The Children's Court must not vary a
custodial supervision order to a noncustodial supervision order unless satisfied
on the evidence available that the safety of
the child subject to the order or members of
the public will not be seriously endangered
as a result of the release of the child on a
non-custodial supervision order.
(3) Unless the Children's Court revokes the
order, the court may direct that the matter be
brought back to the court for further review
at the end of the period not exceeding
6 months specified by the court.
38ZP Variation or revocation of non-custodial
supervision orders on application or
review
(1) On an application under section 38ZN for
variation or revocation of a non-custodial
supervision order or on a review of a noncustodial supervision order directed under
section 38ZI(2) or on a further review of a
non-custodial supervision order directed
under subsection (2) or section 38ZO(3), the
Children's Court must, by order—
(a) confirm the order; or
(b) vary the conditions of the order; or
(c) vary the order to a custodial supervision
order; or
(d) revoke the order.
(2) Unless the Children's Court revokes the
order, the court may direct that the matter be
brought back to the court for further review
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at the end of the period not exceeding
6 months specified by the court.
38ZQ Transfer of supervision order for review
by County Court
(1) The Children's Court may order that a
supervision order made under this Division
be transferred to the County Court for review
if the person subject to the supervision order
is or will be of or above the age of 19 years
at the date specified by the Children's Court
for review of the supervision order.
(2) Section 38ZN applies to a supervision order
transferred under subsection (1) as if a
reference to the Children's Court were a
reference to the County Court.
(3) On an application under section 38ZN for
variation of a supervision order transferred
under subsection (1) or on a review of a
supervision order transferred under
subsection (1), the County Court has and
may exercise all the powers and authorities
that the Children's Court has under this
Division.
Division 6—Reports as to supervision and
victim impact statements
38ZR Court must order report as to supervision
If a court declares that a child is liable to
supervision under Division 5, the court—
(a) must, before making a supervision
order, order that a report under this
Division as to supervision be submitted
in respect of the child and adjourn the
hearing to enable the report to be
prepared; and
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(b) may remand the child in custody or
grant bail to the child or make any other
order that the court considers
appropriate for the safe custody of the
child until the date to which the hearing
is adjourned.
38ZS Who prepares a report?
Depending on the needs of the child and the
services that the child may require under a
supervision order, a report is to be prepared
by—
(a) the Secretary to the Department of
Human Services; or
(b) the Secretary to the Department of
Health; or
(c) the Secretary to the Department of
Health jointly with the Secretary to the
Department of Human Services.
38ZT Contents of report
(1) A report must set out the following
matters—
(a) whether the child has a mental
impairment or other condition or
disability and, if so, specify the services
which are available and appropriate for
the child;
(b) the services currently being made
available to the child, whether or not by
a government department, and whether
the child has complied with those
services;
(c) if the court so requests, the services that
would be made available to the child if
a custodial supervision order were to be
made in respect of the child.
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(2) The author of a report may include in the
report a recommendation as to whether a
non-custodial supervision order or a
custodial supervision order is appropriate for
the child who is the subject of the report.
(3) If the Secretary to the Department of Human
Services has issued a statement in respect of
the child that the child has an intellectual
disability within the meaning of the
Disability Act 2006, a report must include a
copy of the statement.
(4) Division 1 of Part 7.8 of Chapter 7 of the
Children, Youth and Families Act 2005
applies, with any necessary modifications, to
a report under this Division.
38ZU Report to be filed with court
A report must be filed at least 3 working
days before the return date with—
(a) the registrar of the Children's Court at
the venue of the court at which the
order was made; or
(b) in the case of an appeal under
section 38ZF, the prothonotary of the
Supreme Court or the registrar of the
County Court (as the case requires).
38ZV Access to reports
(1) The author of a report must, within the
period referred to in section 38ZU, send a
copy of the report to—
(a) the child who is the subject of the
report; and
(b) the legal practitioners representing the
child; and
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(c) any other person whom the court has
ordered is to receive a copy of the
report.
(2) The author of a report is not required to send
copies of the report in accordance with
subsection (1)(a) or (c) if—
(a) he or she is of the opinion that
information contained in the report may
be prejudicial to the physical or mental
health of the child; or
(b) the child notifies him or her that the
child objects to the forwarding of
copies of the report.
(3) If because of subsection (2) the author of a
report is not required to send a copy of the
report to a person, the author may send to
that person a copy of part of the report.
(4) If because of subsection (2) the author of a
report does not send copies of the report in
accordance with subsection (1)(a) or (c)—
(a) the author must inform the registrar
referred to in section 38ZU(a), the
prothonotary of the Supreme Court or
the registrar of the County Court (as the
case requires) of that fact; and
(b) the Children's Court, the Trial Division
of the Supreme Court or the County
Court (as the case requires) may by
order direct the registrar or
prothonotary to forward a copy of the
report, or a specified part of the report,
together with a copy of the order, to a
person named or described in the order
as soon as possible and before the
hearing.
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38ZW Victim impact statements
(1) Before a court makes a supervision order
under section 38ZH or varies or revokes a
supervision order under section 38ZO
or 38ZP, a victim of the offence may make a
victim impact statement to the court for the
purpose of assisting the court in determining
any conditions it may impose on the
supervision order.
(2) Sections 359, 359A and 359B of the
Children, Youth and Families Act 2005
apply to victim impact statements under this
section.
__________________".
126 Principle to be applied
At the end of section 39 of the Crimes (Mental
Impairment and Unfitness to be Tried) Act
1997 insert—
"(2) In subsection (1), supervision order includes
an order made under section 38ZH.".
127 Matters to which the court is to have regard
In section 40(1) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act
1997, for "Part 3, 4 or 5" substitute "Part 3, 4, 5
or 5A".
128 Certificate of available services
(1) After section 47(1)(a) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act
1997 insert—
"(ab) imposing a supervision order on a child—
(i) committing the child to custody in a
youth justice centre or a youth
residential centre; or
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(ii) providing for the child to receive
services in a youth justice centre or a
youth residential centre or from a
disability services provider or the
Secretary to the Department of Human
Services; or".
(2) In section 47(1)(b) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act
1997—
(a) in subparagraph (ii), for "Human Services."
substitute "Human Services; or";
(b) after subparagraph (ii) insert—
"(iii) that a child be placed in custody in a
youth justice centre or a youth
residential centre.".
(3) After section 47(1A)(a) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act
1997 insert—
"(ab) imposing a supervision order on a child
providing for the child to receive services
from a mental health service provider within
the meaning of the Mental Health Act 2014;
or".
129 Inadmissibility of evidence in other proceedings
In section 76(1) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act
1997, in the definition of hearing—
(a) in paragraph (a), after "investigation" insert
"under Part 2 or Division 2 of Part 5A"; and
(b) in paragraph (b), after "hearing" insert
"under Part 3 or Division 3 of Part 5A".
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130 Extension of time for filing notice of appeal
(1) In section 76C(1) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act
1997, after "Act" insert "(other than Part 5A)".
(2) After section 76C(2) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act
1997 insert—
"(3) The County Court or the Trial Division of
the Supreme Court at any time may extend
the time within which a notice of appeal may
be filed under Part 5A.".
131 Transitional provision inserted
At the end of Schedule 3 to the Crimes (Mental
Impairment and Unfitness to be Tried) Act
1997 insert—
"15 Transitional provision—Criminal
Organisations Control and Other Acts
Amendment Act 2014
This Act as amended by Division 1 of Part 5
of the Criminal Organisations Control and
Other Acts Amendment Act 2014 applies
to—
(a) a proceeding for an offence that is
commenced on or after the
commencement of Division 1 of Part 5
of that Act; and
(b) a proceeding for an offence that, on the
commencement of Division 1 of Part 5
of that Act, is before the Children's
Court, irrespective of when the
proceeding was commenced.".
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Division 2—Amendment of Children, Youth and Families
Act 2005
132 Release on parole from youth residential centre
See:
Act No.
96/2005.
Reprint No. 4
as at
27 March
2013
and
amending
Act Nos
96/2005,
9/2013,
30/2013,
52/2013,
63/2013,
67/2013,
74/2013,
17/2014,
19/2014,
26/2014,
29/2014,
36/2014 and
37/2014.
LawToday:
www.
legislation.
vic.gov.au
After section 454(7) of the Children, Youth and
Families Act 2005 insert—
"(8) This section does not apply to a person
detained in a youth residential centre in
accordance with a custodial supervision
order under Part 5A of the Crimes (Mental
Impairment and Unfitness to be Tried)
Act 1997.".
133 Release on parole from youth justice centre
After section 458(7) of the Children, Youth and
Families Act 2005 insert—
"(8) This section does not apply to a person
detained in a youth justice centre in
accordance with a custodial supervision
order under Part 5A of the Crimes (Mental
Impairment and Unfitness to be Tried)
Act 1997.".
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134 Jurisdiction of Youth Residential Board
At the end of section 462 of the Children, Youth
and Families Act 2005 insert—
"(2) This section does not apply to a child
detained in a youth residential centre in
accordance with a custodial supervision
order under Part 5A of the Crimes (Mental
Impairment and Unfitness to be Tried)
Act 1997.".
135 Jurisdiction of Youth Parole Board
At the end of section 463 of the Children, Youth
and Families Act 2005 insert—
"(2) This section does not apply to a person
detained in a youth justice centre in
accordance with a custodial supervision
order under Part 5A of the Crimes (Mental
Impairment and Unfitness to be Tried)
Act 1997.".
136 Governor in Council may establish corrective
services
In section 478(b) and (c) of the Children, Youth
and Families Act 2005, for "this Act or the
Sentencing Act 1991" substitute "this Act, the
Sentencing Act 1991 or the Crimes (Mental
Impairment and Unfitness to be Tried) Act
1997".
137 Children in detention
In section 482A of the Children, Youth and
Families Act 2005, in the definition of detainee,
after "including" insert "a person detained under
an order made under the Crimes (Mental
Impairment and Unfitness to be Tried) Act
1997 and".
125
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138 Proceedings in which child is required to be legally
represented
After section 525(2)(b) of the Children, Youth
and Families Act 2005 insert—
"(ba) proceeding or investigation under Part 5A of
the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997;".
139 Duties of youth justice officers
(1) In section 544(1)(a) of the Children, Youth and
Families Act 2005, after "572" insert "or a report
prepared under Division 6 of Part 5A of the
Crimes (Mental Impairment and Unfitness to
be Tried) Act 1997".
(2) In section 544(4) of the Children, Youth and
Families Act 2005, after "charged" insert "or is
declared liable to supervision under Division 5 of
Part 5A of the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997".
Division 3—Consequential and other amendments
140 Accident Towing Services Act 2007
In section 3(2)(c) of the Accident Towing
Services Act 2007—
(a) in subparagraph (i), after "17(1)(b)" insert
"or 38X(1)(b)";
(b) in subparagraph (ii), after "17(1)(c)" insert
"or 38X(1)(c)".
141 Appeal Costs Act 1998
(1) In section 14(4)(a) of the Appeal Costs Act 1998,
after "17(1)(c)" insert "or 38X(1)(c)".
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(2) After section 18(a) of the Appeal Costs Act 1998
insert—
"(ab) an appeal to the County Court or the Trial
Division of the Supreme Court—
(i) against a finding under section
38X(1)(c) of the Crimes (Mental
Impairment and Unfitness to be
Tried) Act 1997; or
(ii) under section 38U, 38ZE or 38ZF of
the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997; or".
(3) In section 18(b) of the Appeal Costs Act 1998,
after "Part 2" insert "or Division 2 of Part 5A".
(4) In section 18(c) of the Appeal Costs Act 1998,
after "Part 3" insert "or Division 3 of Part 5A".
142 Bus Safety Act 2009
In section 3(3)(d) of the Bus Safety Act 2009—
(a) in subparagraph (i), after "17(1)(b)" insert
"or 38X(1)(b)";
(b) in subparagraph (iii), after "17(1)(c)" insert
"or 38X(1)(c)".
143 Coroners Act 2008
In section 4(2)(f) of the Coroners Act 2008, after
"section 26" insert "or 38ZH".
144 Corrections Act 1986
In section 3(1) of the Corrections Act 1986,
in the definition of correctional order, in
paragraph (f) after "under" insert "section 26
or 38ZH of".
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145 Criminal Organisations Control Act 2012
In section 5(3) of the Criminal Organisations
Control Act 2012, after "17(1)(c)" insert
"or 38X(1)(c)".
146 Disability Act 2006
In section 152(2)(c) of the Disability Act 2006,
after "under" insert "section 26 or 38ZH of".
147 Firearms Act 1996
In section 3(1) of the Firearms Act 1996, in the
definition of prohibited person, in paragraph
(c)(iii), after "section 26" insert "or 38ZH".
148 Juries Act 2000
In Schedule 2 to the Juries Act 2000, in
clause 3(e) after "under" insert "section 26
or 38ZH of".
149 Legal Aid Act 1978
In section 24(2A) of the Legal Aid Act 1978,
after "Part 5" insert "or 5A".
150 Mental Health Act 2014
(1) In section 276(2)(a) of the Mental Health Act
2014, after "that Act" insert ", other than an order
made under Part 5A of that Act".
(2) After section 276(2) of the Mental Health Act
2014 insert—
"(3) Subsection (1) applies to a person who is
detained in a youth justice centre or a youth
residential centre under Part 5A of the
Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997 (whether
on remand or under a supervision order made
under Part 5A of that Act).".
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(3) In section 305(1) of the Mental Health Act 2014,
in the definition of forensic patient, in paragraphs
(a) and (b), after "1997" insert "(other than under
Part 5A of that Act)".
151 Police Regulation Act 1958
In section 3(4)(b) of the Police Regulation Act
1958—
(a) in subparagraph (i), after "17(1)(b)" insert
"or 38X(1)(b)";
(b) in subparagraph (ii), after "17(1)(c)" insert
"or 38X(1)(c)".
152 Sex Offenders Registration Act 2004
(1) In section 3 of the Sex Offenders Registration
Act 2004—
(a) in the definition of existing controlled
registrable offender, in paragraphs (c)
and (g), for "within the meaning of"
substitute "made under section 26 of";
(b) in the definition of government custody, in
paragraph (a)(iii) and (iv), for "within the
meaning of" substitute "made under
section 26 of";
(c) in the definition of sentence, after
paragraph (ab) insert—
"(aba) a declaration under section 38Y(4)(a)
or 38ZD(1)(a) of the Crimes (Mental
Impairment and Unfitness to be
Tried) Act 1997 that the child is liable
to supervision under Division 5 of
Part 5A of that Act; and";
(d) in the definition of sentence, in paragraph
(ac) for "18(4)(b) or 23(b)" substitute
"18(4)(b), 23(b), 38Y(4)(b) or 38ZD(1)(b)";
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(e) in the definition of supervised sentence, in
paragraph (d), for "within the meaning of"
substitute "made under section 26(2)(b)
or 38ZH(5)(b) of".
(2) In section 4(1)(d) of the Sex Offenders
Registration Act 2004—
(a) after "section 17(1)(b) or (c)" insert
"or section 38X(1)(b) or (c)";
(b) after "section 17(1)(c)" insert
"or 38X(1)(c)".
153 Transport (Compliance and Miscellaneous)
Act 1983
(1) In section 130A(2)(d) of the Transport
(Compliance and Miscellaneous) Act 1983—
(a) in subparagraph (i), after "17(1)(b)" insert
"or 38X(1)(b)";
(b) in subparagraph (ii), after "17(1)(c)" insert
"or 38X(1)(c)".
(2) In section 163(1)(d) of the Transport
(Compliance and Miscellaneous) Act 1983—
(a) in subparagraph (i), after "17(1)(b)" insert
"or 38X(1)(b)";
(b) in subparagraph (ii), after "17(1)(c)" insert
"or 38X(1)(c)".
154 Working with Children Act 2005
(1) In section 4(1)(d) of the Working with Children
Act 2005—
(a) after "section 17(1)(b) or 17(1)(c)" insert
"or under section 38X(1)(b) or 38X(1)(c)";
(b) after "section 17(1)(c)" insert
"or 38X(1)(c)";
(c) for "Victoria." substitute "Victoria;".
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(2) After section 4(1)(d) of the Working with
Children Act 2005 insert—
"(e) a verdict of not guilty on account of insanity
in relation to the offence returned under—
(i) section 420 of the Crimes Act 1958
(as then in force); or
(ii) an equivalent provision of the laws of a
jurisdiction other than Victoria—
before the day on which Schedule 3 to the
Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997 came into
operation.".
155 Amendment consequential on Victoria Police
Act 2013
(1) In section 38H of the Crimes (Mental
Impairment and Unfitness to be Tried) Act
1997, for the definition of Chief Commissioner of
Police substitute—
"Chief Commissioner of Police means the Chief
Commissioner of Police appointed under
section 17 of the Victoria Police Act 2013;".
(2) For section 38ZL(6)(b) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act
1997 substitute—
"(b) a police officer; or".
__________________
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Part 6—Major Crime Investigative Powers
PART 6—MAJOR CRIME INVESTIGATIVE POWERS
156 Purposes of Major Crime (Investigative Powers)
Act 2004
In section 1 of the Major Crime (Investigative
Powers) Act 2004—
(a) in paragraph (a), after "investigate" insert
"and prosecute";
(b) for paragraph (b) substitute—
"(b) to combat and reduce the incidence of
organised crime offences.".
157 Definition
Insert the following definition in section 3 of the
Major Crime (Investigative Powers) Act
2004—
"restricted evidence means any evidence,
information or thing that is the subject of a
direction that is in force under
section 43(1);".
158 Confidentiality of witness summons and orders
(1) For section 20(2) and (3) of the Major Crime
(Investigative Powers) Act 2004 substitute—
"(2) The Supreme Court or the Chief Examiner
must give a notice under subsection (1) if
satisfied that failure to do so—
(a) would reasonably be expected to
prejudice—
(i) the safety of a person; or
(ii) the fair trial of a person who has
been or may be charged with an
offence; or
(iii) the effectiveness of an
investigation of the organised
crime offence in relation to which
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the summons was issued or the
order was made; or
(b) would otherwise be contrary to the
public interest.
(3) The Supreme Court or the Chief Examiner
may give a notice under subsection (1) if
satisfied that failure to do so—
(a) might prejudice the effectiveness of an
investigation of the organised crime
offence in relation to which the
summons was issued or the order was
made; or
(b) might otherwise be contrary to the
public interest.".
159 When Chief Examiner may conduct an examination
In section 29(2) of the Major Crime
(Investigative Powers) Act 2004—
(a) after "proceedings" insert "(whether civil or
criminal)";
(b) after "the examination" insert ", including
criminal proceedings against the person in
respect of that subject-matter".
160 Preliminary requirements
For section 31(2) of the Major Crime
(Investigative Powers) Act 2004 substitute—
"(2) If a witness attends an examination solely to
produce documents on behalf of a body
corporate—
(a) subsection (1) does not apply if the
witness elects to produce the
documents without the requirements of
that subsection having been complied
with; or
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Part 6—Major Crime Investigative Powers
(b) if the witness does not so elect, the
Chief Examiner is only required to
comply with subsection (1)(d), (e), (f)
and (g) in relation to the witness.".
161 Failure of witnesses to attend and answer questions
In section 37(2) of the Major Crime
(Investigative Powers) Act 2004—
(a) after "must not" insert ", without reasonable
excuse";
(b) in paragraph (b) omit "without reasonable
excuse,".
162 Privilege against self-incrimination abrogated
(1) After section 39(1) of the Major Crime
(Investigative Powers) Act 2004 insert—
"(1A) Subsection (1) applies whether or not the
person has been or may be charged with an
offence in respect of the subject-matter of the
question, information, document or other
thing.".
(2) After section 39(3) of the Major Crime
(Investigative Powers) Act 2004 insert—
"(4) Nothing in subsection (3) prevents the
admission in a criminal proceeding or
proceeding for the imposition of a penalty of
any evidence obtained as a direct or indirect
consequence of an answer given at an
examination or a document or other thing
produced at an examination or in answer to a
witness summons, and any such evidence is
admissible in the proceeding in accordance
with the rules of evidence applicable to the
proceeding.".
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163 Restriction on publication of evidence
(1) For section 43(2) of the Major Crime
(Investigative Powers) Act 2004 substitute—
"(2) The Chief Examiner must give a direction
under subsection (1) if satisfied that failure
to do so would reasonably be expected to
prejudice—
(a) the safety of a person; or
(b) the fair trial of a person who has been
or may be charged with an offence.
(2A) To avoid doubt, a reference in subsection
(2)(a) or (b) to a person includes a person
who has given, or may be about to give,
evidence before the Chief Examiner or
produced, or may be about to produce, a
document or other thing to the Chief
Examiner.".
(2) For section 43(4) of the Major Crime
(Investigative Powers) Act 2004 substitute—
"(4) If a person is charged with an offence against
this Act, nothing in this section or
section 43A prevents restricted evidence
from being published or communicated by
the Chief Examiner or the Chief
Commissioner to the court or to the person
charged or a legal practitioner representing
the person charged.".
(3) Section 43(4A) and (5) of the Major Crime
(Investigative Powers) Act 2004 are repealed.
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164 New sections 43A and 43B inserted
After section 43 of the Major Crime
(Investigative Powers) Act 2004 insert—
"43A Release of restricted evidence to a person
charged with an offence
(1) If a court considers that it may be desirable
in the interests of justice that restricted
evidence be made available to a person
charged with an offence before the court, or
to a legal practitioner representing a person
charged, the court, on the application of the
Chief Commissioner, the Director of Public
Prosecutions or the person charged, may give
the Chief Examiner or the Chief
Commissioner a certificate to that effect.
(2) If the court gives a certificate under
subsection (1), the Chief Examiner or the
Chief Commissioner (as the case requires)
must make the restricted evidence available
to the court.
(3) If restricted evidence is made available to a
court under subsection (2), the court must
give each person referred to in subsection (4)
an opportunity to make submissions to the
court as to whether or not the restricted
evidence should be made available, in whole
or part, to the person charged or a legal
practitioner representing the person charged.
(4) For the purposes of subsection (3), the
persons are—
(a) the Chief Examiner; and
(b) the Chief Commissioner; and
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(c) if the direction under section 43(1) in
relation to the restricted evidence
involves the interests of a witness, the
witness.
(5) The court may make the restricted evidence
available to the person charged or a legal
practitioner representing the person charged,
and to the Director of Public Prosecutions, if,
after examining the restricted evidence and
considering any submissions made under
subsection (3), the court is satisfied that the
interests of justice so require.
43B Release of restricted evidence where
person not yet charged
(1) The Chief Commissioner may apply to a
court for an order that restricted evidence be
made available to the Director of Public
Prosecutions for the purpose of prosecuting a
person for an offence if the Chief
Commissioner suspects on reasonable
grounds that there are reasonable prospects
for the conviction of a person for an offence
if the evidence is made so available.
(2) On an application under subsection (1), the
court may direct the Chief Examiner or the
Chief Commissioner to make the restricted
evidence available to the court.
(3) If the court gives a direction under
subsection (2), the Chief Examiner or the
Chief Commissioner (as the case requires)
must make the restricted evidence available
to the court.
(4) If restricted evidence is made available to the
court under subsection (3), the court must
give each person referred to in subsection (5)
an opportunity to make submissions to the
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court as to whether or not the restricted
evidence should be made available, in whole
or part, to the Director of Public
Prosecutions for the purpose of prosecuting a
person for an offence.
(5) For the purposes of subsection (4), the
persons are—
(a) the Chief Examiner; and
(b) the Chief Commissioner; and
(c) the Director of Public Prosecutions; and
(d) if the direction under section 43(1) in
relation to the restricted evidence
involves the interests of a witness, the
witness.
(6) The court may, by order, make the restricted
evidence available to the Director of Public
Prosecutions for the purpose of prosecuting a
person for an offence if, after examining the
restricted evidence and considering any
submissions made under subsection (4), the
court is satisfied that—
(a) there are reasonable grounds for the
suspicion founding the application for
the order; and
(b) the interests of justice require the
evidence to be made so available.
(7) If restricted evidence is made available to the
Director of Public Prosecutions under this
section and a person is subsequently charged
with an offence as a result, nothing in this
Act prevents the Director of Public
Prosecutions from making the evidence
available to the person charged or a legal
practitioner representing the person charged.
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(8) In this section—
court means the Supreme Court or the
County Court.".
165 Warrant for arrest of witness
(1) For section 46(5) of the Major Crime
(Investigative Powers) Act 2004 substitute—
"(5) A person arrested under the warrant must be
brought, as soon as practicable, before the
Court and the Court may—
(a) discharge the person from custody on
bail in accordance with the Bail Act
1977 as if the person had been accused
of an offence; or
(b) order the continued detention of the
person in a prison or police gaol for the
purpose of ensuring the person's
appearance as a witness before the
Chief Examiner until the person has
concluded giving evidence; or
(c) order that the person be discharged
from custody unconditionally.".
(2) In section 46 of the Major Crime (Investigative
Powers) Act 2004—
(a) subsection (7) is repealed;
(b) in subsection (8)—
(i) after "prison" insert "or police gaol";
(ii) for "subsection (5)(c)" substitute
"subsection (5)(b)".
166 Contempt of Chief Examiner—removal of sunset
Sections 49(12) and 50(2) of the Major Crime
(Investigative Powers) Act 2004 are repealed.
139
s. 165
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
s. 167
Part 6—Major Crime Investigative Powers
167 Delegation
After section 65(1) of the Major Crime
(Investigative Powers) Act 2004 insert—
"(1A) The Chief Commissioner may, by
instrument, delegate to a police officer of or
above the rank of inspector a power of the
Chief Commissioner under section 43B.".
168 Amendment of Criminal Procedure Act 2009
In the Criminal Procedure Act 2009—
(a) after section 110(d)(v) insert—
"(va) if a person has been examined under
Part 4 of the Major Crime
(Investigative Powers) Act 2004 and
the informant intends to tender a record
of that examination at the committal
hearing, a transcript of the recording of
the examination; and";
(b) in section 113(1), after "Part 8.2" insert
"or of an examination under Part 4 of the
Major Crime (Investigative Powers) Act
2004".
__________________
140
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
Part 7—Variation of Alcohol Exclusion orders
PART 7—VARIATION OF ALCOHOL EXCLUSION ORDERS
169 Variation of alcohol exclusion orders
(1) After section 89DD(4) of the Sentencing Act
1991 insert—
"(5) When making an alcohol exclusion order, the
Supreme Court may direct that any
application for the variation of that order is
to be made to the Magistrates' Court for
determination.".
(2) For section 89DG(2) of the Sentencing Act 1991
substitute—
"(2) An application under subsection (1) must be
made to the Magistrates' Court if—
(a) the order was made by the County
Court or the Magistrates' Court; or
(b) the order was made by the Supreme
Court and the Supreme Court has given
a direction under section 89DD(5).".
(2A) For the purposes of subsection (2), the order
made by the Supreme Court or County Court
must be taken to have been made by the
Magistrates' Court.
(2B) An application under subsection (1) must be
made to the Supreme Court if—
(a) the order was made by the Supreme
Court; and
(b) the Supreme Court has not given a
direction under section 89DD(5).".
(3) After section 89DG(5) of the Sentencing Act
1991 insert—
"(6) An order of the Supreme Court or County
Court that is varied by the Magistrates' Court
under this section is taken for the purposes of
141
s. 169
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
s. 170
Part 7—Variation of Alcohol Exclusion orders
enforcement to be an order of the
Magistrates' Court.".
170 New section 153 inserted
At the end of Part 12 of the Sentencing Act 1991
insert—
"153 Transitional provision—Criminal
Organisations Control and Other Acts
Amendment Act 2014—alcohol exclusion
orders
The amendments made to this Act by Part 7
of the Criminal Organisations Control and
Other Acts Amendment Act 2014 apply to
the sentencing of a person on or after the
commencement of that Part, irrespective of
when the offence was committed or the
conviction was recorded.".
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142
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
Part 8—Miscellaneous Amendments
s. 171
PART 8—MISCELLANEOUS AMENDMENTS
Division 1—Amendment of Criminal Procedure Act 2009
171 Schedule 3 amended
In Schedule 3 to the Criminal Procedure Act
2009, after item 23 insert—
"24 A general inspector within the meaning of
the Prevention of Cruelty to Animals Act
1986.
24A A specialist inspector within the meaning of
the Prevention of Cruelty to Animals Act
1986.".
Division 2—Amendment of Evidence (Miscellaneous
Provisions) Act 1958
172 List of persons who may witness statutory
declarations
In section 107A(1) of the Evidence
(Miscellaneous Provisions) Act 1958—
(a) for paragraph (e) substitute—
"(e) the prothonotary or a deputy
prothonotary of the Supreme Court, the
registrar or a deputy registrar of the
County Court, the principal registrar or
a registrar or deputy registrar of the
Magistrates' Court or the principal
registrar or a registrar or deputy
registrar of the Children's Court;";
(b) for paragraph (r) substitute—
"(r) a registered veterinary practitioner
within the meaning of the Veterinary
Practice Act 1997;";
143
See:
Act No.
6246.
Reprint No. 18
as at
27 March
2013
and
amending
Act Nos
17/2014 and
37/2014.
LawToday:
www.
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vic.gov.au
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
s. 173
Part 8—Miscellaneous Amendments
(c) for paragraph (t) substitute—
"(t) a principal within the meaning of the
Education and Training Reform Act
2006;";
(d) for paragraph (v) substitute—
"(v) a person who holds a prescribed
membership of a prescribed accounting
body or association;".
173 Affidavits in Victoria how sworn and taken
For section 123C(1)(d) of the Evidence
(Miscellaneous Provisions) Act 1958
substitute—
"(d) the prothonotary or a deputy prothonotary of
the Supreme Court, the registrar or a deputy
registrar of the County Court, the principal
registrar or a registrar or deputy registrar of
the Magistrates' Court or the principal
registrar or a registrar or deputy registrar of
the Children's Court;".
Division 3—Amendment of Mental Health Act 2014
174 Definitions
See:
Act No.
26/2014.
Statute Book:
www.
legislation.
vic.gov.au
In section 3(1) of the Mental Health Act 2014
insert the following definitions—
"designated place has the same meaning as in
section 3(1) of the Victoria Police Act 2013;
protective services officer has the same meaning
as in section 3(1) of the Victoria Police Act
2013;".
144
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
Part 8—Miscellaneous Amendments
175 Apprehension of person by police officer or
protective services officer
(1) In the heading to section 351 of the Mental
Health Act 2014, after "police" insert "officer or
protective services officer".
(2) In section 351(1) of the Mental Health Act 2014,
for "A police officer may apprehend a person if
the police officer" substitute "A police officer, or
a protective services officer on duty at a
designated place, may apprehend a person if the
police officer or the protective services officer".
(3) In section 351(2) and (3) of the Mental Health
Act 2014, after "police officer" insert "or a
protective services officer".
(4) In section 351(4) of the Mental Health Act 2014,
after "police officer" insert "or the protective
services officer, as the case may be,".
(5) After section 351(4) of the Mental Health
Act 2014 insert—
"(4A) As soon as practicable after apprehending a
person under this section, a protective
services officer must—
(a) hand the person into the custody of a
police officer; or
(b) for the purposes of enabling the person
to be examined in accordance with
section 30, arrange for the person to be
taken to—
(i) a registered medical practitioner
or mental health practitioner; or
(ii) a public hospital, denominational
hospital, privately-operated
hospital or public health service
within the meaning of the Health
Services Act 1988.".
145
s. 175
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
s. 176
Part 8—Miscellaneous Amendments
(6) In section 351(5) of the Mental Health Act 2014,
after "this section" insert "or being handed a
person apprehended by a protective services
officer under subsection (4A)(a)".
(7) After section 351(5) of the Mental Health
Act 2014 insert—
"(5A) A person apprehended under this section by
a protective services officer is released from
the custody of the protective services officer
when—
(a) the person enters into the custody of a
police officer; or
(b) if subsection (4A)(b)(i) applies, the
person is made subject to an
Assessment Order; or
(c) if subsection (4A)(b)(ii) applies, the
person enters into the care of the public
hospital, denominational hospital,
privately-operated hospital or public
health service within the meaning of the
Health Services Act 1988.".
(8) In section 351(7) and (8)(b) of the Mental Health
Act 2014, after "police officer" insert "or a
protective services officer".
Division 4—Amendment of Open Courts Act 2013
176 Notice of applications for suppression orders
See:
Act No.
58/2013
and
amending
Act No.
58/2013.
LawToday:
www.
legislation.
vic.gov.au
For section 10(1)(b) of the Open Courts
Act 2013 substitute—
"(b) the parties on the record in the proceeding to
which the application relates.".
146
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
Part 8—Miscellaneous Amendments
s. 177
177 Magistrates' Court may make order prohibiting
publication of specified material
For section 26(1) of the Open Courts Act 2013
substitute—
"(1) The Magistrates' Court may make an order
prohibiting the publication of any specified
material, or any material of a specified kind,
relevant to a proceeding that is pending in
the Court if the Court is satisfied that—
(a) the order is necessary to prevent a real
and substantial risk of prejudice to the
proper administration of justice that
cannot be prevented by other
reasonably available means; or
(b) the order is necessary in order to
protect the safety of any person.".
Division 5—Amendment of Personal Safety Intervention
Orders Act 2010
178 New section 16A inserted
After section 16 of the Personal Safety
Intervention Orders Act 2010 insert—
"16A Registrar must refuse to accept
application
(1) If an application for a personal safety
intervention order is made to the Magistrates'
Court, a registrar must refuse to accept the
application for filing if the registrar is
satisfied that—
(a) the application is frivolous, vexatious,
without substance, made in bad faith,
has no reasonable prospect of success
or is an abuse of process; or
(b) the matter would be more appropriately
dealt with by mediation.
147
See:
Act No.
53/2010
and
amending
Act Nos
53/2010,
16/2011,
20/2011,
48/2011,
65/2011,
52/2013,
77/2013 and
37/2014.
LawToday:
www.
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Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
s. 178
Part 8—Miscellaneous Amendments
(2) Subsection (1) does not apply to an
application for a personal safety intervention
order made by a police officer or an
application for a variation, revocation or
extension of a personal safety intervention
order.
(3) In determining whether to refuse to accept
the application, the registrar must consider—
(a) whether the matter has been assessed
for mediation or has been the subject of
attempted mediation, and the outcome
of the assessment or mediation; and
(b) whether the applicant has made a report
of the matter to police; and
(c) whether the matter is inappropriate for
mediation, having regard to any
guidelines issued under subsection (4);
and
(d) any other relevant matter.
(4) The Attorney-General may issue guidelines
relating to matters to which registrars must
have regard in determining whether to refuse
to accept an application.
(5) Any guidelines issued under this section
must be published on the Internet site of the
Department of Justice.
(6) On the application of a person whose
application has been refused under
subsection (1), the Magistrates' Court may
direct the registrar to accept the application
for filing.".
148
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
Part 8—Miscellaneous Amendments
s. 179
Division 6—Amendment of Summary Offences Act 1966
179 Requirement to give name and address
(1) In section 6B(1) of the Summary Offences Act
1966, before "who intends" insert "or a protective
services officer".
(2) In section 6B(2) of the Summary Offences Act
1966—
(a) before "who makes" insert "or a protective
services officer";
(b) before "intention" insert "or the protective
services officer's".
(3) In section 6B(3) of the Summary Offences Act
1966, before "in accordance" insert "or a
protective services officer".
(4) In section 6B(4) of the Summary Offences Act
1966—
(a) before "who made" insert "or the protective
services officer";
(b) before "name" insert "or the protective
services officer's".
(5) In section 6B(5) of the Summary Offences Act
1966—
(a) before "must not" insert "or a protective
services officer";
(b) in paragraph (c), for "duty." substitute
"duty; or";
(c) after paragraph (c) insert—
"(d) in the case of a protective services
officer, state as the protective services
officer's place of duty a location other
than the police station or location of
deployment of the protective services
officer.".
149
See:
Act No.
7405.
Reprint No. 11
as at
27 April 2012
and
amending
Act Nos
27/2011,
5/2012,
26/2012,
27/2012,
32/2013,
70/2013,
77/2013,
15/2014,
26/2014 and
37/2014.
LawToday:
www.
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Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
s. 180
Part 8—Miscellaneous Amendments
(6) In section 6B(6) of the Summary Offences Act
1966—
(a) before "who made" insert "or the protective
services officer";
(b) before "may request" insert "or the
protective services officer".
(7) In section 6B(8) of the Summary Offences Act
1966, before "who made" insert "or the protective
services officer".
Division 7—Amendment of Victorian Institute of Forensic
Medicine Act 1985
180 The Council
See:
Act No.
10257.
Reprint No. 7
as at
1 November
2009
and
amending
Act Nos
13/2010,
31/2013,
70/2013 and
37/2014.
LawToday:
www.
legislation.
vic.gov.au
In section 67(2) of the Victorian Institute of
Forensic Medicine Act 1985—
(a) in paragraph (k), for "Victoria." substitute
"Victoria; and"; and
(b) after paragraph (k) insert—
"(l) one other person who has knowledge
of, or experience in, accountancy or
financial management.".
181 Members of the Council
After section 69(1) of the Victorian Institute of
Forensic Medicine Act 1985 insert—
"(1A) A member of the Council referred to in
section 67(2)(l) is to be appointed on the
recommendation of the Attorney-General
after receiving advice from the
Chairperson.".
150
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
Part 8—Miscellaneous Amendments
s. 182
Division 8—Amendments relating to Victoria Police
182 Promotion of police officers and protective services
officers
In sections 31(1) and 40(1) of the Victoria Police
Act 2013, after "higher rank" insert "in
accordance with this Act and the regulations".
183 Unauthorised manufacture etc of Victoria Police
identification or equipment
In section 255(3)(c) of the Victoria Police Act
2013 for "Commissioner" substitute "Chief
Commissioner".
184 Subject matter for regulations
(1) For clause 2.9 of Schedule 5 to the Victoria
Police Act 2013 substitute—
"2.9 The promotion and transfer of police officers
and protective services officers.".
(2) In clause 5.8 of Schedule 5 to the Victoria Police
Act 2013, for "handing" substitute "handling".
185 Transitional provisions
(1) In clause 37 of Schedule 6 to the Victoria Police
Act 2013, for "to be" substitute "to be a".
(2) In clause 39 of Schedule 6 to the Victoria Police
Act 2013, for "under this" substitute "person
under this".
151
See:
Act No.
81/2013
and
amending
Act Nos
17/2014 and
37/2014
Statute Book:
www.
legislation.
vic.gov.au
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
s. 186
Part 8—Miscellaneous Amendments
186 Consequential amendment of Corrections Act 1986
In section 78D(4) of the Corrections Act 1986,
for "member of the police force" substitute
"police officer".
__________________
152
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
Part 9—Repeal of Amending Act
PART 9—REPEAL OF AMENDING ACT
187 Repeal of amending Act
This Act is repealed on 1 March 2016.
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).
═══════════════
153
s. 187
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
Endnotes
ENDNOTES
†
Minister's second reading speech—
Legislative Assembly: 26 June 2014
Legislative Council: 7 August 2014
The long title for the Bill for this Act was "A Bill for an Act to amend the
Confiscation Act 1997, the Criminal Organisations Control Act 2012,
the Criminal Procedure Act 2009, the Crimes (Mental Impairment
and Unfitness to be Tried) Act 1997, the Major Crime (Investigative
Powers) Act 2004 and the Sentencing Act 1991, to make consequential
and miscellaneous amendments to other Acts and for other purposes."
154