Criminal Justice Legislation (Miscellaneous Amendments) Act 2002
i
Criminal Justice Legislation (Miscellaneous
Amendments) Act 2002
Act No. 35/2002
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY 1
1. Purposes 1
2. Commencement 2
PART 2—AMENDMENT OF THE CRIMES ACT 1958 4
3. New section 464NA inserted 4
464NA. Fingerscanning for identification purposes 4
4. Destruction of records 5
5. Records of juvenile 6
6. Statute law revision 6
PART 3—AMENDMENT OF THE CORRECTIONS ACT 1986 7
7. Photographing and fingerprinting 7
8. Disclosure of personal information 8
9. Accident compensation 10
10. New section 115 inserted 10
115. Transitional provisions—Criminal Justice
Legislation (Miscellaneous Amendments)
Act 2002 10
PART 4—AMENDMENT OF THE POLICE REGULATION
ACT 1958 12
11. Disclosure of information and documents 12
PART 5—AMENDMENT OF THE MAGISTRATES' COURT
ACT 1989 14
12. Filing of charge 14
13. Issue of summons by police 14
14. New section 37A inserted 15
37A. Service of outline of evidence on defendant 15
15. Power to adjourn 17
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Section Page
ii
16. New section 121A inserted 17
121A. Validation of certain acts 17
17. New section 128A inserted 18
128A. Adjournment to undertake diversion program 18
18. Supreme Court—limitation of jurisdiction 20
19. Regulations 20
20. Pre-hearing disclosure 20
21. Defendant's non-appearance at summary hearing 22
6. Non-appearance of defendant—outline of evidence 22
22. Committal of corporate defendant 24
23. Offence not to appear 24
24B. Offence to fail to appear at trial 24
24. Transitional 24
PART 6—MISCELLANEOUS 26
25. Bail justice 26
26. Appeal Costs Act 1998 27
27. New section 43A inserted 27
43A. Transitional—2002 amendments 27
28. Drugs, Poisons and Controlled Substances (Amendment)
Act 2001 28
__________________
SCHEDULE 29
═══════════════
ENDNOTES 35
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1
Criminal Justice Legislation
(Miscellaneous Amendments) Act 2002 †
[Assented to 18 June 2002]
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1. Purposes
The purposes of this Act are—
(a) to provide for the determination of a
summary offence in the defendant's absence
on the basis of a statement by the informant
outlining the alleged offence;
(b) to provide for the appearance of corporations
on their trial for indictable offences;
Victoria
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(c) to facilitate the use of electronic lodgment of
court documents;
(d) to provide for electronic pre-trial disclosure
by the prosecution;
(e) to enable a police officer to issue a summons
to answer to a charge;
(f) to provide the Magistrates' Court with the
option of adjourning a criminal proceeding
to enable a defendant to participate in a
diversion program;
(g) to deem persons when participating in
diversion programs to be workers employed
by the Crown for the purposes of the
Accident Compensation Act 1985;
(h) to enable fingerprints of accused persons and
prisoners to be taken by scanning devices for
identification purposes;
(i) to provide for the exchange of personal
information relating to prisoners and persons
in community corrections centres or
community corrections programes between
corrections staff and members of the police
force;
(j) to amend the definition of bail justice;
(k) to amend the Appeal Costs Act 1998 in
relation to indemnity certificates in criminal
proceedings;
(l) to make miscellaneous amendments of a
transitional and statute law revision nature.
2. Commencement
(1) This Act (except item 5.1 in the Schedule) comes
into operation on the day after the day on which it
receives the Royal Assent.
s. 2
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(2) Item 5.1 in the Schedule is deemed to have come
into operation on the day on which section 5 of
the Sentencing (Amendment) Act 2002 comes
into operation.
_______________
s. 2
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PART 2—AMENDMENT OF THE CRIMES ACT 1958
3. New section 464NA inserted
After section 464N of the Crimes Act 1958
insert—
'464NA. Fingerscanning for identification purposes
(1) In this section, "fingerscan" means
fingerprints taken by means of a device to
obtain a record of the fingerprints.
Example: Fingerprints may be taken by a scanning
device to obtain a digital record of the
fingerprints.
(2) If a person of or above the age of 15 years—
(a) has been charged with an indictable
offence or a summary offence referred
to in Schedule 7; and
(b) is present in a police station because of
the charging or has been remanded in
custody in relation to the charge—
a member of the police force may take a
fingerscan of the person for the purpose only
of identifying the person.
(3) Before fingerscanning a person under this
section, a member of the police force must
inform the person, in language likely to be
understood by the person, that the
fingerscan—
(a) is to be taken only for the purpose of
identifying the person; and
(b) is inadmissible as evidence.
(4) A member of the police force may use
reasonable force to take the fingerscan of a
person referred to in sub-section (2) who
s. 3
See:
Act No.
6231.
Reprint No. 16
as at
1 January
2002
and
amending
Act Nos
45/2001 and
11/2002.
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refuses to allow it to be taken voluntarily
if—
(a) the use of reasonable force is authorised
by a member in charge of a police
station at the relevant time or a member
of or above the rank of sergeant; and
(b) before fingerscanning the person, the
member of the police force informs the
person, in language likely to be
understood by the person, that
reasonable force may be used to obtain
it.
(5) A person of the same sex as the person to be
fingerscanned must, if practicable, take the
fingerscan.
(6) A fingerscan is inadmissible as evidence in
any proceeding.
(7) A fingerscan which is not required to be
destroyed under section 464O may be
recorded on a computerised database and
may be accessed, disclosed, communicated
or made use of by a person for the
performance of official duties if the
recording, accessing, disclosing,
communicating or making use of fingerscans
on that database by that person, or a person
belonging to a class of persons, for that
purpose is authorised in writing by the Chief
Commissioner of Police.'.
4. Destruction of records
In section 464O(1) of the Crimes Act 1958, after
"section" insert—
' "destroy", in relation to a fingerscan, means
permanently de-identify information—
s. 4
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(a) which identifies the person from whom
the fingerscan was taken; or
(b) from which the person's identity may be
ascertained;
"fingerprints" includes fingerscan taken under
section 464NA;'.
5. Records of juvenile
In section 464P of the Crimes Act 1958, before
sub-section (1) insert—
'(1A) In this section, "fingerprints" includes
fingerscan taken under section 464NA.'.
6. Statute law revision
Sections 6, 7(1)(b) and 10 of the Crimes
(Fingerprinting) Act 1988 are repealed.
_______________
s. 5
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PART 3—AMENDMENT OF THE CORRECTIONS ACT 1986
7. Photographing and fingerprinting
(1) In section 3(1) of the Corrections Act 1986,
before the definition of "function" insert—
' "fingerprints" includes finger, palm, toe and
sole prints, whether taken by impression or
by means of a device to obtain a record of
the fingerprints;
Example: Fingerprints may be taken by a scanning device
to obtain a digital record of the fingerprints.'.
(2) In section 11(7A) of the Corrections Act 1986,
for "must" substitute "may".
(3) In section 28(1) of the Corrections Act 1986, for
"must" substitute "may".
(4) In section 28(2) of the Corrections Act 1986,
after "photographs of the prisoner" insert "or take
the prisoner's fingerprints or both".
(5) In section 99(1) of the Corrections Act 1986, for
"must take photographs of the offender"
substitute "may take photographs of the offender
and may take the offender's fingerprints".
(6) In section 99(2) of the Corrections Act 1986,
after "photographs of the offender" insert "or take
the offender's fingerprints or both".
(7) In section 99(3) of the Corrections Act 1986,
after "photographs" insert "and fingerprints".
s. 7
See:
Act No.
117/1986.
Reprint No. 4
as at
26 August
1999
and
amending
Act Nos
38/1988,
11/1993 (as
amended by
Nos 45/1996
and 11/2002),
86/2000,
45/2001,
72/2001 and
2/2002.
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8. Disclosure of personal information
(1) In section 30(3) of the Corrections Act 1986,
after paragraph (d) insert—
"(daa) recording, accessing, disclosing,
communicating or making use of
information—
(i) relating to the personal affairs of a
prisoner; or
(ii) concerning the investigation of a breach
or possible breach of the law by a
prisoner—
on a computerised database in the
performance of the person's official duties
if—
(iii) the person holds a position other than
as a volunteer; and
(iv) the Minister has given written authority
under sub-section (4) that applies to the
person; or".
(2) In section 30 of the Corrections Act 1986, after
sub-section (3) insert—
"(4) The Minister may, by instrument in writing,
authorise persons, or classes of persons,
specified in the authority, who hold a
position, other than as volunteers, to record,
access, disclose, communicate or make use
of, for the performance of their official
duties, confidential information, or classes of
confidential information, of a kind referred
to in sub-section (3)(daa) on a computerised
database specified in the authority that is
able to be accessed by—
(a) persons holding a position, other than
as volunteers; or
s. 8
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(b) officers within the meaning of
section 85; or
(c) members of the police force.
(5) Nothing in this section prevents the
recording or accessing and using of health
information within the meaning of the
Health Records Act 2001 in accordance
with that Act.".
(3) At the end of section 91 of the Corrections Act
1986 insert—
"(2) Sub-section (1) does not prevent an officer
from recording, accessing, disclosing,
communicating or making use of any
information referred to in that sub-section on
a computerised database in the performance
of official duties if the Minister has given
written authority under sub-section (3) that
applies to the officer.
(3) The Minister may, by instrument in writing,
authorise officers, or classes of officers,
specified in the authority, to record, access,
disclose, communicate or make use of, for
the performance of their official duties,
information, or classes of information, of a
kind referred to in sub-section (1) on a
computerised database specified in the
authority that is able to be accessed by—
(a) officers; or
(b) persons holding a position within the
meaning of section 30, other than as
volunteers; or
(c) members of the police force.
s. 8
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(4) Nothing in this section prevents the
recording or accessing and using of health
information within the meaning of the
Health Records Act 2001 in accordance
with that Act.".
9. Accident compensation
In section 110 of the Corrections Act 1986—
(a) in paragraph (b), for "location—" substitute
"location; or";
(b) after paragraph (b) insert—
"(c) a person who is required or directed by
or under a diversion program under
section 128A of the Magistrates'
Court Act 1989 to work or to take part
in a program of activities—".
10. New section 115 inserted
After section 114 of the Corrections Act 1986
insert—
"115. Transitional provisions—Criminal Justice
Legislation (Miscellaneous Amendments)
Act 2002
(1) The amendments to this Act made by
section 7 of the Criminal Justice
Legislation (Miscellaneous Amendments)
Act 2002 apply to fingerprints taken after the
commencement of that section.
(2) The amendments to this Act made by
section 8 of the Criminal Justice
Legislation (Miscellaneous Amendments)
Act 2002 apply to information whether
obtained before or after the commencement
of that section.".
__________________
s. 9
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PART 4—AMENDMENT OF THE POLICE REGULATION
ACT 1958
11. Disclosure of information and documents
In section 127A of the Police Regulation Act
1958, after sub-section (1) insert—
"(1A) Sub-section (1) does not prevent a member
of the police force from recording, accessing,
disclosing, communicating or making use of
any fact or document referred to in that sub-
section, whether obtained before or after the
commencement of section 11 of the
Criminal Justice Legislation
(Miscellaneous Amendments) Act 2002, on
a computerised database in the performance
of official duties if the Chief Commissioner
of Police has given written authority under
sub-section (1B) that applies to the member.
(1B) The Chief Commissioner of Police may, by
instrument in writing, authorise members, or
classes of members, of the police force
specified in the authority, to record, access,
disclose, communicate or make use of, for
the performance of their official duties,
information, or classes of information,
referred to in sub-section (1) on a
computerised database specified in the
authority that is able to be accessed by—
(a) members of the police force; or
(b) persons holding a position within the
meaning of section 30 of the
Corrections Act 1986, other than as
volunteers; or
(c) officers within the meaning of
section 85 of the Corrections Act
1986.
s. 11
See:
Act No.
6338.
Reprint No. 8
as at
15 October
1998
and
amending
Act Nos
30/1999,
61/1999,
95/2000,
9/2001,
36/2001 and
84/2001.
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(1C) Nothing in sub-section (1A) prevents the
recording or accessing and using of health
information within the meaning of the
Health Records Act 2001 in accordance
with that Act.".
_______________
s. 11
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PART 5—AMENDMENT OF THE MAGISTRATES' COURT
ACT 1989
12. Filing of charge
(1) In section 26 of the Magistrates' Court Act
1989, at the foot of sub-section (1) insert—
"Note: The Electronic Transactions (Victoria) Act 2000
applies to enable a charge to be filed electronically.".
(2) In section 26 of the Magistrates' Court Act
1989, after sub-section (2) insert—
"(2A) If a charge is filed in accordance with the
method prescribed by the regulations for
electronic filing, the requirements of sections
8(1) and 9(1) of the Electronic
Transactions (Victoria) Act 2000 are taken
to have been met.".
13. Issue of summons by police
(1) In section 30 of the Magistrates' Court Act
1989, for sub-section (1) substitute—
"(1) Without limiting the power of a registrar in
any way—
(a) a member of the police force; or
(b) in the case of a charge for a prescribed
summary offence, a prescribed
person—
may, at the time of signing a charge-sheet,
issue a summons to answer to the charge.".
s. 12
See:
Act No.
51/1989.
Reprint No. 8
as at
24 April 2002
and
amending Act
Nos 2/2001
and 2/2002.
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(2) In section 30(2) of the Magistrates' Court Act
1989—
(a) after "If " insert "a member of the police
force or";
(b) omit "original".
(3) In section 30(4) of the Magistrates' Court Act
1989—
(a) after "If" insert "a member of the police
force or";
(b) omit "original";
(c) after "charge" (where last occurring) insert
", whether or not the charge is for a summary
offence".
14. New section 37A inserted
After section 37 of the Magistrates' Court Act
1989 insert—
'37A. Service of outline of evidence on defendant
(1) The informant may serve on the defendant,
in the case of a charge for a summary
offence, an outline of evidence and a notice
in the prescribed form explaining this section
and clause 6 of Schedule 2.
(2) An outline of evidence is a statement by the
informant—
(a) describing the nature and circumstances
of the alleged offence, including—
(i) the background and consequences
of the alleged offence; and
(ii) the comments or statements, if
any, made by the defendant
concerning the alleged offence;
and
s. 14
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(b) including—
(i) the names of all persons who may
be called to give evidence by or
on behalf of the informant at the
hearing of the charge and
indicating whether those persons
have made statements; and
(ii) a list of any things that may be
tendered as exhibits.
(3) An outline of evidence must be—
(a) in the form of an affidavit; or
(b) signed by the informant and must
contain an acknowledgment signed in
the presence of—
(i) a member of the police force of
Victoria, of any other State or of
an internal Territory; or
(ii) a member of the Australian
Federal Police—
that the statement is true and correct
and is made in the belief that a person
making a false statement in the
circumstances is liable to the penalties
of perjury.
(4) Despite sub-section (3), a copy of an outline
of evidence that—
(a) is served on the defendant; or
(b) is used for the purposes of clause 6 in
Schedule 2—
need not bear the manual signature of the
informant.
s. 14
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(5) An informant who acknowledges an outline
of evidence which the informant knows at
the time to be false is liable to the penalties
of perjury.
(6) The outline of evidence and notice referred
to in sub-section (1) must be served in
accordance with section 34 or 36(1) (as the
case requires) as though they were a
summons to answer to a charge.
(7) Service of documents referred to in sub-
section (1) may be proved in any manner in
which service of a summons to answer to a
charge may be proved under section 35.
(8) Section 90 of the Road Safety Act 1986
applies as if a reference to "summons" were
a reference to "outline of evidence under
section 37A of the Magistrates' Court Act
1989".
(9) An informant must retain an outline of
evidence bearing the manual signature of the
informant for a period of 12 months after the
determination of the charge.'.
15. Power to adjourn
In section 41(3) of the Magistrates' Court Act
1989, after "Schedule 2" insert "or may adjourn
the proceeding on any terms that it thinks fit".
16. New section 121A inserted
After section 121 of the Magistrates' Court Act
1989 insert—
"121A. Validation of certain acts
If, before the commencement of section 25
of the Criminal Justice Legislation
(Miscellaneous Amendments) Act 2002, a
s. 15
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person holding a prescribed office under
section 121 performed any act or made any
decision under this or any other Act in
purported exercise of a power to act as a bail
justice appointed under section 120, the act
or decision is not invalid only by reason of
the lack of appointment of the person as a
bail justice under section 120 of the
Magistrates' Court Act 1989.".
17. New section 128A inserted
After section 128 of the Magistrates' Court Act
1989 insert—
"128A. Adjournment to undertake diversion
program
(1) This section does not apply to an offence
punishable by a minimum or fixed sentence
or penalty.
(2) If, at any time before taking a formal plea
from a defendant in a criminal proceeding
for a summary offence or an indictable
offence triable summarily—
(a) the defendant acknowledges to the
Court responsibility for the offence;
and
(b) it appears appropriate to the Court,
which may inform itself in any way it
thinks fit, that the defendant should
participate in a diversion program; and
(c) both the prosecution and the defendant
consent to the Court adjourning the
proceeding for this purpose—
the Court may adjourn the proceeding for a
period not exceeding 12 months to enable the
defendant to participate in and complete the
diversion program.
s. 17
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(3) A defendant's acknowledgment to the Court
of responsibility for an offence is
inadmissible as evidence in a proceeding for
that offence and does not constitute a plea.
(4) If a defendant completes a diversion program
to the satisfaction of the Court—
(a) no plea to the charge is to be taken; and
(b) the Court must discharge the defendant
without any finding of guilt; and
(c) the fact of participation in the diversion
program is not to be treated as a finding
of guilt except for the purposes of—
(i) Division 1 of Part 3 and Part 10 of
the Confiscation Act 1997; and
(ii) section 9 of the Control of
Weapons Act 1990; and
(iii) section 151 of the Firearms Act
1996; and
(iv) Part 4 of the Sentencing Act
1991; and
(d) the fact of participation in the diversion
program and the discharge of the
defendant is a defence to a later charge
for the same offence or a similar
offence arising out of the same
circumstances.
(5) If a defendant does not complete a diversion
program to the satisfaction of the Court and
the defendant is subsequently found guilty of
the charge, the Court must take into account
the extent to which the defendant complied
s. 17
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with the diversion program when sentencing
the defendant.
(6) Nothing in this section affects the
requirement to observe the rules of natural
justice.".
18. Supreme Court—limitation of jurisdiction
At the end of section 139A of the Magistrates'
Court Act 1989 insert—
"(2) It is the intention of section 121A to alter or
vary section 85 of the Constitution Act
1975.".
19. Regulations
In section 140(1) of the Magistrates' Court Act
1989, after paragraph (c) insert—
"(ca) prescribing a method for the electronic filing
of charges; and".
20. Pre-hearing disclosure
(1) In clause 1A(2) of Schedule 2 to the Magistrates'
Court Act 1989, for "14" substitute "10".
(2) In clause 1A of Schedule 2 to the Magistrates'
Court Act 1989, after sub-clause (2) insert—
"(2A) If—
(a) the informant is a member of the police force or
an officer of a prescribed agency; and
(b) the defendant's legal practitioner is authorised
by the Secretary to access electronically the
information and matters referred to in sub-
clause (2); and
(c) it is practicable to transmit electronically the
information and matters referred to in sub-
clause (2)—
the informant must, subject to this clause, place on the
prescribed database as soon as practicable and as the
information or matters become available to the
informant—
s. 18
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(d) all information and matters referred to in sub-
clause (2); and
(e) a list of the exhibits proposed to be tendered.".
(3) In clause 1A(4) of Schedule 2 to the Magistrates'
Court Act 1989, after "sub-clause (2)" (where
first occurring) insert "or to place on the database
information or matters required to be placed under
sub-clause (2A)".
(4) In clause 1A(5) of Schedule 2 to the Magistrates'
Court Act 1989—
(a) for "7th" substitute "5th"; and
(b) for "14" substitute "10".
(5) In clause 1A of Schedule 2 to the Magistrates'
Court Act 1989, after sub-clause (5) insert—
"(5A) If the informant refuses to place on the database
information or matters required to be placed under
sub-clause (2A) or to provide access to exhibits, the
informant must, without delay, serve on the
defendant's legal practitioner a written statement of
the ground or grounds for refusing to comply.".
(6) In clause 1A(6) of Schedule 2 to the Magistrates'
Court Act 1989, after "(2)" insert "or to place on
the database information or matters required to be
placed under sub-clause (2A)".
(7) In clause 1A(7) of Schedule 2 to the Magistrates'
Court Act 1989, after "(2)" insert "or a
requirement to place information or matters
required to be placed under sub-clause (2A)".
s. 20
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21. Defendant's non-appearance at summary hearing
In Schedule 2 to the Magistrates' Court Act
1989, after clause 5 insert—
"6. Non-appearance of defendant—outline of evidence
(1) If—
(a) under section 41(2) or (3) the Court proceeds to
hear and determine the charge in the
defendant's absence; and
(b) the informant has served an outline of evidence
on the defendant in accordance with
section 37A not less than 14 days before the
mention date; and
(c) the Court considers that the matters set out in
the outline of evidence disclose the offence
charged—
the following are admissible in evidence, despite the
rule against hearsay—
(d) the outline of evidence referred to in section
37A(1);
(e) any exhibit referred to in the outline of
evidence.
(2) Without limiting any other power conferred on the
Court, if the Court considers that the matters set out in
an outline of evidence do not disclose the offence
charged, the Court may require the informant to
provide additional evidence.
(3) The additional evidence referred to in sub-section (2)
is inadmissible unless—
(a) it is in the form of written statements that
comply with section 37A(3); and
(b) a copy of each statement has been served on the
defendant not less than 14 days before the
Court considers the additional evidence.
(4) The Court must reject a statement, or any part of a
statement, tendered in a proceeding if the statement or
part is inadmissible because of this clause.
s. 21
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(5) The Court may rule as inadmissible the whole or any
part of an outline of evidence, a statement or an
exhibit.
(6) If the Court finds a defendant guilty in the defendant's
absence on the basis of an outline of evidence—
(a) the Court must not make a custodial order
under Division 2 of Part 3 of the Sentencing
Act 1991; and
(b) the Court must not make a community-based
order under Division 3 of Part 3 of the
Sentencing Act 1991; and
(c) the Court must not make an order for a fine
exceeding 20 penalty units under Division 4 of
Part 3 of the Sentencing Act 1991 and the total
sum of orders for fines must not exceed in the
aggregate 50 penalty units; and
(d) the total sum of orders made under Divisions 1
and 2 of Part 4 of the Sentencing Act 1991 for
the payment of restitution or compensation
must not exceed $2000.
(7) If, at any time during the hearing, the Court considers
that the charge, if proved, is likely to result in an order
prohibited by sub-clause (6), the Court—
(a) must adjourn the proceeding to enable the
defendant to appear or to be brought before the
Court to answer to the charge; and
(b) may issue a warrant to arrest the defendant.
(8) Except as provided by section 90 of the Road Safety
Act 1986, the Court must not be informed of nor have
regard to any prior convictions or findings of guilt of
the defendant.
(9) If the Court finds a charge against a person proven
and makes a sentencing order in their absence, the
Court must give by post written notice to the person,
at the address on the register, of—
(a) the order of the Court; and
(b) their right to apply for a re-hearing of the
charge.
(10) If a person is served with a notice under sub-clause
(9) and applies under section 93 for a re-hearing of the
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charge within 28 days after the date of service of the
notice, the Court must set aside the sentencing order
and re-hear the charge.
(11) This clause does not limit the power of the Court to
proceed to hear and determine the charge in the
defendant's absence under section 41(2) or (3) on the
basis of evidence on oath given by or on behalf of the
informant if the informant had not served an outline
of evidence on the defendant in accordance with
section 37A.".
22. Committal of corporate defendant
In clause 24(1) of Schedule 5 to the Magistrates'
Court Act 1989—
(a) in paragraph (b), after "(b)" insert "if the
defendant is a natural person,";
(b) after paragraph (b) insert—
"(ba) if the defendant is a body corporate,
order the defendant to appear, by a
representative or a legal practitioner, at
its arraignment; and".
23. Offence not to appear
In Part 6 of Schedule 5 to the Magistrates' Court
Act 1989, after clause 24A insert—
"24B. Offence to fail to appear at trial
A body corporate must comply with an order made
under clause 24(1)(ba).
Penalty: 240 penalty units.".
24. Transitional
In Schedule 8 to the Magistrates' Court Act
1989—
(a) in clause 25 (where secondly occurring) for
"25." substitute "26.";
(b) after clause 26 insert—
"27. (1) The amendments made to this Act by
sections 12, 13, 14, 15, 19 and 20 of the
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Criminal Justice Legislation
(Miscellaneous Amendments) Act 2002
apply to a criminal proceeding
commenced on or after the
commencement of that Act.
(2) Section 128A as inserted by section 17 of
the Criminal Justice Legislation
(Miscellaneous Amendments) Act 2002
applies to a criminal proceeding for an
offence, whether commenced before or
after the commencement of section 17 of
that Act.".
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PART 6—MISCELLANEOUS
25. Bail justice
(1) In section 3 of the Bail Act 1977, for the
definition of "bail justice" substitute—
' "bail justice" means—
(a) bail justice appointed under section 120
of the Magistrates' Court Act 1989; or
(b) bail justice by virtue of holding a
prescribed office under section 121 of
the Magistrates' Court Act 1989;'.
(2) In section 3(1) of the Children and Young
Persons Act 1989, for the definition of "bail
justice" substitute—
' "bail justice" means—
(a) bail justice appointed under section 120
of the Magistrates' Court Act 1989; or
(b) bail justice by virtue of holding a
prescribed office under section 121 of
the Magistrates' Court Act 1989;'.
(3) In section 38 of the Interpretation of Legislation
Act 1984, for the definition of "bail justice"
substitute—
' "bail justice" means—
(a) bail justice appointed under section 120
of the Magistrates' Court Act 1989; or
(b) bail justice by virtue of holding a
prescribed office under section 121 of
the Magistrates' Court Act 1989;'.
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26. Appeal Costs Act 1998
(1) In section 17(1) of the Appeal Costs Act 1998—
(a) in paragraph (b), for "practitioner; and"
substitute "practitioner—";
(b) paragraph (c) is repealed.
(2) In section 17 of the Appeal Costs Act 1998, for
sub-section (2) substitute—
"(2) The court may only grant an indemnity
certificate under sub-section (1) if it is
satisfied that the reason for the adjournment
was as set out in sub-section (1)(b).".
(3) In section 17(3) of the Appeal Costs Act 1998,
after "own costs of the adjournment" insert "that
have been incurred,".
(4) In section 17(4) of the Appeal Costs Act 1998,
for "the accused" substitute "the party accused or
convicted of an offence (whether that party is a
defendant, appellant or respondent in the
proceeding) to which the proceeding relates".
27. New section 43A inserted
After section 43 of the Appeal Costs Act 1998
insert—
"43A. Transitional—2002 amendments
The amendments of section 17 of this Act
made by section 26 of the Criminal Justice
Legislation (Miscellaneous Amendments)
Act 2002 apply to an application under
section 17 made on or after the
commencement of section 26 of that Act,
irrespective of when the criminal proceeding
commenced.".
s. 26
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28. Drugs, Poisons and Controlled Substances
(Amendment) Act 2001
On the coming into operation of an item in the
Schedule, the Act referred to in that item is
amended as set out in that item.
__________________
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SCHEDULE
1. Bail Act 1977
1.1 In section 4(2)(aa) of the Bail Act 1977, after sub-paragraph
(i) insert—
"(ia) an offence of trafficking in relation to a commercial
quantity of a drug of dependence under section 71 of
the Drugs, Poisons and Controlled Substances Act
1981 as in force immediately before the
commencement of the Drugs, Poisons and
Controlled Substances (Amendment) Act 2001 or
an offence of cultivating a narcotic plant under
section 72 of that Act in circumstances where the
offence is committed in relation to a quantity of a
drug of dependence that is not less than the
commercial quantity applicable to that narcotic plant
or an offence of conspiring to commit either of those
offences under section 79(1) of that Act; or".
1.2 In section 4(4) of the Bail Act 1977, after paragraph (ca)
insert—
"(cab) subject to sub-section (2)(aa), with an offence of
trafficking in a drug of dependence under section 71
of the Drugs, Poisons and Controlled Substances
Act 1981 as in force immediately before the
commencement of the Drugs, Poisons and
Controlled Substances (Amendment) Act 2001 or
an offence of cultivating a narcotic plant under
section 72 of that Act or an offence of conspiring to
commit either of those offences under section 79(1) of
that Act;".
2. Confiscation Act 1997
2.1 In Schedule 2 to the Confiscation Act 1997, after clause 1
insert—
"1A. An offence against any of the following provisions of
the Drugs, Poisons and Controlled Substances Act
1981 as in force immediately before the
commencement of the Drugs, Poisons and
Controlled Substances (Amendment) Act 2001—
(a) section 71(1) (trafficking in a drug of
dependence) in circumstances where the
offence is committed in relation to a quantity of
a drug of dependence that is not less than the
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commercial quantity applicable to that drug of
dependence;
(b) section 72(1) (cultivation of narcotic plants) in
circumstances where the offence is committed
in relation to a quantity of a drug of
dependence, being a narcotic plant, that is not
less than the commercial quantity applicable to
that narcotic plant;
(c) section 79(1) or 80(3)(a) (conspiracy) in
circumstances where the conspiracy is to
commit an offence referred to in paragraph (a)
or (b);
(d) section 80(1) or 80(3)(b) (aiding and abetting
etc.) in circumstances where the offence that is
aided, abetted, counselled, procured, solicited
or incited is an offence referred to in paragraph
(a) or (b) or an offence committed in the
circumstances referred to in paragraph (a) or (b)
under a law in force in a place outside Victoria
that is a corresponding law in relation to section
71(1) or 72(1), as the case requires.".
2.2 In Schedule 3 to the Confiscation Act 1997, after clause 1
insert—
"2. An offence against any of the following provisions of
the Drugs, Poisons and Controlled Substances Act
1981 as in force immediately before the
commencement of the Drugs, Poisons and
Controlled Substances (Amendment) Act 2001—
(a) section 71(1) (trafficking in a drug of
dependence) in circumstances where the
offence is committed in relation to a quantity of
a drug of dependence that is not less than the
commercial quantity applicable to that drug of
dependence;
(b) section 72(1) (cultivation of narcotic plants) in
circumstances where the offence is committed
in relation to a quantity of a drug of
dependence, being a narcotic plant, that is not
less than the commercial quantity applicable to
that narcotic plant;
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(c) section 79(1) or 80(3)(a) (conspiracy) in
circumstances where the conspiracy is to
commit an offence referred to in paragraph (a)
or (b);
(d) section 80(1) or 80(3)(b) (aiding and abetting
etc.) in circumstances where the offence that is
aided, abetted, counselled, procured, solicited
or incited is an offence referred to in paragraph
(a) or (b) or an offence committed in the
circumstances referred to in paragraph (a) or (b)
under a law in force in a place outside Victoria
that is a corresponding law in relation to section
71(1) or 72(1), as the case requires.".
3. Crimes Act 1958
3.1 In section 464(2) of the Crimes Act 1958, in the definition
of "relevant suspect", after "Act 1981" (where twice
occurring) insert "or under section 71, 72(1)(ab) or 72(1)(b)
of the Drugs, Poisons and Controlled Substances Act
1981 as in force immediately before the commencement of
the Drugs, Poisons and Controlled Substances
(Amendment) Act 2001".
3.2 In section 464U(3) of the Crimes Act 1958, after "Act
1981" (where twice occurring) insert "or under section 71,
72(1)(ab) or 72(1)(b) of the Drugs, Poisons and Controlled
Substances Act 1981 as in force immediately before the
commencement of the Drugs, Poisons and Controlled
Substances (Amendment) Act 2001".
3.3 In section 464ZF of the Crimes Act 1958, after sub-section
(2) insert—
"(2AA) If the finding of guilt referred to in sub-section (2)—
(a) occurs between 1 January 2002 and the
commencement of item 3.4 in the Schedule to
the Criminal Justice Legislation
(Miscellaneous Amendments) Act 2002; and
(b) is in respect of an offence referred to in item
29, 30 or 31 of Schedule 8—
an application under sub-section (2) may be made not
later than 12 months after the expiration of any appeal
period or the final determination of an appeal
(whichever is the later).".
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3.4 In Schedule 8 to the Crimes Act 1958, after clause 28
insert—
"29. An offence against section 71 of the Drugs, Poisons
and Controlled Substances Act 1981 as in force
immediately before the commencement of the Drugs,
Poisons and Controlled Substances (Amendment)
Act 2001 (trafficking in a drug of dependence).
30. An offence against section 72(1)(ab) of the Drugs,
Poisons and Controlled Substances Act 1981 as in
force immediately before the commencement of the
Drugs, Poisons and Controlled Substances
(Amendment) Act 2001 (cultivation of a narcotic
plant in circumstances where the offence is committed
in relation to a quantity of a drug of dependence,
being a narcotic plant, that is not less than the
commercial quantity applicable to that narcotic plant).
31. An offence against section 72(1)(b) of the Drugs,
Poisons and Controlled Substances Act 1981 as in
force immediately before the commencement of the
Drugs, Poisons and Controlled Substances
(Amendment) Act 2001 (cultivation of a narcotic
plant for a purpose related to trafficking in that
narcotic plant).".
4. Magistrates' Court Act 1989
4.1 In item 49 of Schedule 4 to the Magistrates' Court Act
1989, after "72A" insert "and offences against the following
provisions as in force before the commencement of the
Drugs, Poisons and Controlled Substances (Amendment)
Act 2001—
(a) section 71(1) where the alleged offence is committed
in relation to a quantity of a drug of dependence that
is not less than the commercial quantity applicable to
that drug of dependence;
(b) section 72(1) where the alleged offence is committed
in relation to a quantity of a drug of dependence,
being a narcotic plant, that is not less than the
commercial quantity applicable to that narcotic plant".
5. Sentencing Act 1991
5.1 In section 18ZN(1) of the Sentencing Act 1991 at the end of
paragraph (a) insert "or".
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5.2 In clause 4 of Schedule 1 to the Sentencing Act 1991, after
paragraph (a) insert—
"(ab) an offence against any of the following provisions of
the Drugs, Poisons and Controlled Substances Act
1981 as in force immediately before the
commencement of the Drugs, Poisons and
Controlled Substances (Amendment) Act 2001—
(i) section 71 (trafficking in a drug of dependence)
in circumstances where the offence is
committed in relation to a quantity of a drug of
dependence that is not less than the commercial
quantity applicable to that drug of dependence;
(ii) section 72 (cultivation of narcotic plants) in
circumstances where the offence is committed
in relation to a quantity of a drug of
dependence, being a narcotic plant, that is not
less than the commercial quantity applicable to
that narcotic plant;
(iii) section 79(1) or 80(3)(a) (conspiracy) in
circumstances where the conspiracy is to
commit an offence against section 71 of that
Act in relation to a quantity of a drug of
dependence that is not less than the commercial
quantity applicable to that drug of dependence
or an offence under a law in force in a place
outside Victoria that is a corresponding law in
relation to that section in relation to that
quantity;
(iv) section 80(1) or 80(3)(b) (aiding and abetting
etc.) in circumstances where the offence that is
aided, abetted, counselled, procured, solicited
or incited is an offence against section 71 of
that Act in relation to a quantity of a drug of
dependence that is not less than the commercial
quantity applicable to that drug of dependence
or an offence under a law in force in a place
outside Victoria that is a corresponding law in
relation to that section in relation to that
quantity;
(v) section 80(4) (preparatory act) in circumstances
where the offence to which the act relates is an
offence under a law in force in a place outside
Victoria that is a corresponding law in relation
to section 71 of that Act in relation to a quantity
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of a drug of dependence that is not less than the
commercial quantity applicable to that drug of
dependence;
(ac) an offence of attempting to commit an offence
referred to in paragraph (ab)(i);".
6. Surveillance Devices Act 1999
6.1 In section 3(1) of the Surveillance Devices Act 1999, in the
definition of "serious drug offence"—
(a) in paragraph (g), for "(e);" substitute "(e)—";
(b) after paragraph (g) insert—
"or an offence against any of the following provisions
of the Drugs, Poisons and Controlled Substances
Act 1981 as in force immediately before the
commencement of the Drugs, Poisons and
Controlled Substances (Amendment) Act 2001—
(h) section 71(1) (trafficking in a drug of
dependence);
(i) section 72(1) (cultivation of narcotic plants)
other than an offence that is not committed for
any purpose related to trafficking in a narcotic
plant;
(j) section 79(1) (conspiracy) in circumstances
where the conspiracy is to commit an offence
referred to in paragraph (h) or (i);
(k) section 80(1) (aiding and abetting etc.) in
circumstances where the offence that is aided,
abetted, counselled, procured, solicited or
incited is an offence referred to in paragraph (h)
or (i);".
7. Transport Act 1983
7.1 In section 86(1) of the Transport Act 1983, after paragraph
(a) of the definition of "level 2 offence" insert—
"(ab) an offence under section 71 of the Drugs, Poisons
and Controlled Substances Act 1981 as in force
immediately before the commencement of the Drugs,
Poisons and Controlled Substances (Amendment)
Act 2001; or".
═══════════════
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ENDNOTES
† Minister's second reading speech—
Legislative Assembly: 9 May 2002
Legislative Council: 6 June 2002
The long title for the Bill for this Act was "to amend the Crimes Act
1958, the Corrections Act 1986, the Police Regulation Act 1958, the
Magistrates' Court Act 1989, the Confiscation Act 1997, the
Sentencing Act 1991, the Bail Act 1977, the Children and Young
Persons Act 1989, the Interpretation of Legislation Act 1984, the
Surveillance Devices Act 1999, the Transport Act 1983 and the Appeal
Costs Act 1998 and for other purposes."
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 9 May 2002
Legislative Council: 6 June 2002
Absolute majorities:
Legislative Assembly: 5 June 2002
Legislative Council: 11 June 2002
Endnotes
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