2018
2018
2018-06-21
act
government
publicspecial
act.reprint
partuncommenced
2018-05-23
2018-06-19
1
2018
none
act-2018-029
343635ae-9b85-4258-8a0a-7cfa27c6b9c3
2d39f347-420d-4df3-b8bd-f350f8deecdc
Note—
Amending Acts and amending provisions are subject
to automatic repeal pursuant to sec 30C of the Interpretation
Act 1987 No 15 once the amendments have taken
effect.
An Act to amend various Acts and Regulations
relating to courts and crimes and other related matters.
1Name of
Act
This Act is the Justice
Legislation Amendment Act (No 2)
2018.
2Commencement
(1)
This Act commences on the date of assent to this
Act, except as provided by this section.
(2)
Schedule 1.10 [14], 1.14, 1.16, 1.17
[1]–[4] and [8], 1.18 [1]–[4], 1.19 and 1.20 commence on a day or
days to be appointed by proclamation.
3Explanatory
notes
The matter appearing under the heading
“Explanatory note” in Schedules 1 and 2 does not form part of this
Act.
Schedule 1Principal
amendments
1.1Children (Criminal Proceedings) Act 1987 No
55
Section 33
Penalties
Insert after section 33 (6):
(7)
The functions of a juvenile justice officer in
relation to the supervision of a person who has entered into a good behaviour
bond or been released on probation under this section may be exercised by a
community corrections officer (within the meaning of the Crimes
(Administration of Sentences) Act 1999), and the functions
of a community corrections officer in relation to the supervision of any such
person may be exercised by a juvenile justice officer, in accordance with any
arrangements between Juvenile Justice NSW and Corrective Services
NSW.
Explanatory
note
The proposed amendment provides that the
functions of a juvenile justice officer in relation to the supervision of a
person who has entered into a good behaviour bond or been released on
probation may be exercised by a community corrections officer and, similarly,
that the functions of a community corrections officer may be exercised by a
juvenile justice officer, in accordance with any arrangements between Juvenile
Justice NSW and Corrective Services NSW. This enables the type of officer
supervising a person to be changed without an application being made to the
Children’s Court to vary the bond or probation.
1.2Children (Detention Centres) Act 1987 No
57
[1]Section 40 Application of
Part
Omit section 40 (2).
[2]Section 40
(3)
Omit “Despite subsection (2), this Part
continues to apply to a juvenile offender”.
Insert instead “This Part also applies to a
juvenile offender”.
[3]Section 40 (3)
(a1)
Insert after section 40 (3) (a):
(a1)
the offender is detained in a detention centre
(whether or not the offender has reached the age of 18 years),
or
Explanatory
note
Item [3] of the proposed amendments provides that
an offender who is over the age of 18 years and detained in a detention centre
and who becomes eligible for parole is to be dealt with under the juvenile
parole provisions of the Children (Detention Centres) Act
1987, rather than the adult parole provisions under the
Crimes (Administration of Sentences) Act
1999. Items [1] and [2] are consequential
amendments.
1.3Court
Suppression and Non-publication Orders Act 2010 No
106
[1]Section 8 Grounds for making
an order
Insert after section 8 (2):
(3)
Despite subsection (1) (d), a court may make a
suppression order or non-publication order on the grounds that the order is
necessary to avoid causing undue distress or embarrassment to a defendant in
criminal proceedings involving an offence of a sexual nature only if there are
exceptional circumstances.
[2]Schedule 1 Savings,
transitional and other provisions
Omit clause 1 (1). Insert instead:
(1)
The regulations may contain provisions of a
savings or transitional nature consequent on the enactment of this Act or any
Act that amends this Act.
Explanatory
note
Item [1] of the proposed amendments provides that
a court may make a suppression order or non-publication order to avoid causing
undue distress or embarrassment to a defendant in criminal proceedings
involving an offence of a sexual nature only if there are exceptional
circumstances.
Item [2] enables savings and transitional
regulations to be made as a consequence of any amendments to the
Act.
1.4Crimes
Act 1900 No 40
[1]Section 91FB Child abuse
material—meaning
Insert “, whether bare or covered by
underwear” after “anal area” in section 91FB (4)
(a).
[2]Section 91FB (4)
(b)
Insert “, or transgender or intersex person
identifying as female, whether or not the breasts are sexually
developed” after “person”.
[3]Section 91I
Definitions
Insert “, whether or not the breasts are
sexually developed” after “as female” in paragraph (b) of
the definition of private
parts in section 91I (1).
[4]Section 91N
Definitions
Insert “, whether or not the breasts are
sexually developed” after “as female” in paragraph (b) of
the definition of private
parts in section 91N (1).
[5]Section 193A
Definitions
Insert after paragraph (a) of the definition of
serious
offence:
(a1)
an offence against a law of the Commonwealth that
may be prosecuted on indictment, or
Explanatory
note
Items [2]–[4] of the proposed amendments
make it clear that the breasts of a female person, or transgender or intersex
person identifying as female, are private parts whether or not the breasts are
sexually developed.
Items [1] and [2] amend the definition of
private
parts in relation to child abuse material offences to make
it consistent with the definition used in offences relating to voyeurism and
recording intimate images by providing that:
(a)
a person’s genital and anal areas are
private parts whether bare or covered by underwear, and
(b)
the breasts of a transgender or intersex person
identifying as female are private parts.
Item [5] provides that a Commonwealth indictable
offence is a serious offence for the purposes of money laundering
offences.
1.5Crimes
(Administration of Sentences) Act 1999 No
93
[1]Section 3
Interpretation
Insert “or any person (however described)
who is authorised by the Commissioner to be in charge of the correctional
centre” after “in charge of the correctional centre” in the
definition of governor in section 3
(1).
[2]Section 165 Parole Authority
may reinstate revoked intensive correction order
Omit “must” from section 165 (3).
Insert instead “may”.
[3]Section 256B Information to be
provided to victims
Insert after section 256B (1) (f):
(g)
a decision by the Commissioner to issue a local
leave permit in respect of the offender,
(h)
the exercise, by the Governor, of the prerogative
of mercy in respect of the offender.
[4]Section 256B
(1A)
Insert after section 256B (1):
(1A)
In addition, the Commissioner may provide the
following information to a victim of a high risk offender (within the meaning
of section 271A) whose name is recorded in the Victims Register, if requested
to do so by the victim or at the Commissioner’s discretion:
(a)
if the offender is the subject of an extended
supervision order under the Crimes (High Risk
Offenders) Act 2006 or the Terrorism (High
Risk Offenders) Act 2017—the release of the offender
from custody at the commencement of the extended supervision order or the
return of the offender to custody following a failure to comply with the
requirements of the order,
(b)
if the offender is the subject of a continuing
detention order under the Crimes (High Risk Offenders) Act
2006 or the Terrorism (High
Risk Offenders) Act 2017—the expiry of the order and
the release of the offender from custody.
Explanatory
note
Item [1] of the proposed amendments provides that
a governor of a correctional centre includes a person authorised by the
Commissioner of Corrective Services (the Commissioner) to be in charge of the
centre.
Item [2] provides that the State Parole Authority
may refer an offender for a suitability assessment before reinstating a
revoked intensive correction order, rather than being required to do
so.
Item [3] provides that the Commissioner may
notify a victim of an offender if the offender has been issued with a local
leave permit or is to be released because the Governor exercises the
prerogative of mercy.
Item [4] provides that the Commissioner may
notify a victim of a high risk offender who is subject to an extended
supervision order or continuing detention order under the Crimes
(High Risk Offenders) Act 2006 or the Terrorism (High Risk Offenders) Act
2017 if the offender is released from custody or returned
to custody for failing to comply with an order.
1.6Crimes
(Domestic and Personal Violence) Act 2007 No
80
Section 41 Measures to protect
children in proceedings
Insert after section 41 (1) (e):
(f)
proceedings in which an apprehended violence
order is sought or proposed to be made against a child,
(g)
proceedings in relation to an application for the
variation or revocation of an apprehended violence order made against a
child.
Explanatory
note
The proposed amendment provides that proceedings
relating to an apprehended violence order against a child are to be held in
closed court, as is currently the case for proceedings in which a child is a
witness or a protected person.
1.7Crimes
(Sentencing Procedure) Act 1999 No
92
Section 21A Aggravating,
mitigating and other factors in sentencing
Insert “person working at a hospital (other
than a health worker),” after “such as a” in section 21A (2)
(l).
Explanatory
note
The proposed amendment includes a person working
at a hospital as an example of a victim who is vulnerable because of the
victim’s occupation. It is an aggravating factor to be taken into
account in sentencing if the victim is vulnerable.
1.8Crimes
(Sentencing Procedure) Amendment (Sentencing Options) Act 2017 No
53
[1]Schedule 1 Amendment of
Crimes (Sentencing Procedure) Act 1999 No
92—principal amendments
Omit proposed section 17C (1) (b) in Schedule 1
[17]. Insert instead:
(b)
such a request may be made at the following times
only:
(i)
after finding an offender guilty of an offence
and before a sentence is imposed,
(ii)
during sentencing proceedings after a sentence of
imprisonment has been imposed on the offender,
(iii)
during proceedings to impose, vary or revoke an
additional or further condition on a community correction order or conditional
release order that has been made in respect of the
offender,
(iv)
during proceedings to correct a sentencing error
in accordance with section 43,
(v)
during proceedings to re-sentence an offender
after a court has revoked the offender’s community correction order or
conditional release order.
[2]Schedule 1 [17], proposed
section 17D (1A)
Insert after proposed section 17D (1):
(1A)
However, the sentencing court is not required to
obtain an assessment report (except if required under subsection (2) or (4))
if it is satisfied that there is sufficient information before it to justify
the making of an intensive correction order without obtaining an assessment
report.
[3]Schedule 1 [29], proposed
section 69 (1) (a)
Omit “the assessment report referred to in
section 17D (1) relating”.
Insert instead “any assessment report
obtained in relation”.
[4]Schedule 1 [29], proposed
section 69 (1) (b)
Omit “such evidence from a community
corrections officer as”.
Insert instead “evidence from a community
corrections officer and any other information before the court
that”.
[5]Schedule 1 [29], proposed
section 69 (3)
Insert after proposed section 69 (2):
(3)
The sentencing court may not make an intensive
correction order in respect of an offender who resides, or intends to reside,
in another State or Territory, unless the State or Territory is declared by
the regulations to be an approved jurisdiction.
[6]Schedule 1 [29], proposed
section 73A (1A) and (1B)
Insert after proposed section 73A (1):
(1A)
Despite subsection (1), the sentencing court is
not required to impose an additional condition if the court is satisfied there
are exceptional circumstances.
(1B)
The sentencing court must make a record of its
reasons for not imposing an additional condition. The failure of the
sentencing court to do so does not invalidate the
sentence.
[7]Schedule 1 [29], proposed
section 73A (2) (d)
Insert “or the number of hours prescribed
by the regulations in respect of the class of offences to which the relevant
offence belongs, whichever is the lesser” after “750
hours”.
[8]Schedule 1 [29], proposed
section 73A (5)
Insert after proposed section 73A (4):
(5)
The period during which a community service work
condition requiring the performance of a specified number of hours of
community service work is in force must not be less than the period prescribed
by the regulations in respect of the specified number of hours of community
service work.
[9]Schedule 1 [31], proposed
section 89 (2) (b)
Insert “or the number of hours prescribed
by the regulations in respect of the class of offences to which the relevant
offence belongs, whichever is the lesser” after “500
hours”.
[10]Schedule 1 [31], proposed
section 89 (2) (g) (i)
Omit “or
(iii)”.
[11]Schedule 1 [31], proposed
section 89 (2) (g) (iii)
Omit “or” from the end of proposed
section 89 (2) (g) (ii) and omit proposed section 89 (2) (g)
(iii).
[12]Schedule 1 [31], proposed
section 89 (2A)
Insert after proposed section 89 (2):
(2A)
The functions of a community corrections officer
under a supervision condition may be exercised by a juvenile justice officer
and the functions of a juvenile justice officer under a supervision condition
may be exercised by a community corrections officer, in accordance with any
arrangements between Corrective Services NSW and Juvenile Justice
NSW.
[13]Schedule 1 [31], proposed
section 89 (4A)–(4C)
Insert after the note to proposed section 89
(4):
(4A)
The sentencing court may not impose a supervision
condition on a community correction order in respect of an offender who
resides, or intends to reside, in another State or Territory, unless the State
or Territory is declared by the regulations to be an approved
jurisdiction.
(4B)
The sentencing court may not impose a community
service work condition on a community correction order in respect of an
offender who resides, or intends to reside, in another State or Territory,
unless:
(a)
the court is satisfied that the offender is able
and willing to travel to New South Wales to complete the community service
work, or
(b)
the State or Territory is declared by the
regulations to be an approved jurisdiction.
(4C)
The period during which a community service work
condition requiring the performance of a specified number of hours of
community service work is in force must not be less than the period prescribed
by the regulations in respect of the specified number of hours of community
service work.
[14]Schedule 1 [31], proposed
section 99 (2) (e) (i)
Omit “or
(iii)”.
[15]Schedule 1 [31], proposed
section 99 (2) (e) (iii)
Omit “or” from the end of proposed
section 99 (2) (e) (ii) and omit proposed section 99 (2) (e)
(iii).
[16]Schedule 1 [31], proposed
section 99 (2A)
Insert after proposed section 99 (2):
(2A)
The functions of a community corrections officer
under a supervision condition may be exercised by a juvenile justice officer
and the functions of a juvenile justice officer under a supervision condition
may be exercised by a community corrections officer, in accordance with any
arrangements between Corrective Services NSW and Juvenile Justice
NSW.
[17]Schedule 1 [31], proposed
section 99 (3A)
Insert after proposed section 99 (3):
(3A)
The sentencing court may not impose a supervision
condition on a conditional release order in respect of an offender who
resides, or intends to reside, in another State or Territory, unless the State
or Territory is declared by the regulations to be an approved
jurisdiction.
[18]Schedule 2 Amendment of
Crimes (Sentencing Procedure) Act 1999 No
92—savings and transitional provisions
Insert after proposed clause 74 (7):
(8)
Section 89 (2A) as inserted by the amending Act
applies to a good behaviour bond to which this clause
applies.
[19]Schedule 2, proposed clause 75
(8)
Insert after proposed clause 75 (7):
(8)
Section 99 (2A) as inserted by the amending Act
applies to a good behaviour bond to which this clause
applies.
[20]Schedule 3 Amendment of
Crimes (Administration of Sentences) Act 1999 No
93
Insert after proposed section 81A (3) in Schedule
3 [5]:
(4)
However, the Parole Authority is not required to
impose a replacement additional condition if the Parole Authority is satisfied
there are exceptional circumstances.
Explanatory
note
Items [1]–[19] of the proposed amendments
amend the Crimes (Sentencing Procedure) Act
1999, which is proposed to be amended by uncommenced
provisions of the Crimes (Sentencing Procedure)
Amendment (Sentencing Options) Act 2017.
Item [1] provides that the sentencing court may
request an assessment report on an offender at any time during sentencing
proceedings before a sentence is imposed and at other specified times during
proceedings.
Item [2] provides that the sentencing court is
not required to obtain an assessment report before making an intensive
correction order if the court has sufficient information before it. Item [3]
is a consequential amendment.
Item [4] enables a sentencing court that is
deciding whether to make an intensive correction order to have regard to any
evidence it considers necessary for that purpose, not only evidence from a
community corrections officer.
Item [5] provides that an intensive correction
order may not be made in respect of an interstate offender, unless the State
or Territory is an approved jurisdiction under the regulations.
Item [6] provides that the sentencing court is
not required to impose an additional condition on an intensive correction
order if there are exceptional circumstances. The sentencing court is required
to make a record of its reasons for not imposing an additional
condition.
Items [7] and [9] enable the regulations to
prescribe the number of hours of community service work that may be imposed as
a condition of an intensive correction order or community correction
order.
Item [8] provides that the period during which a
community service work condition requiring the performance of a specified
number of hours of community service work is in force for an intensive
correction order must not be less than the period prescribed by the
regulations in respect of the specified number of hours. Item [13] makes a
similar amendment in relation to community service work conditions on
community correction orders.
Item [12] provides that the functions of a
community corrections officer under a supervision condition imposed on a
community correction order may be exercised by a juvenile justice officer and,
similarly, that the functions of a juvenile justice officer may be exercised
by a community corrections officer, in accordance with any arrangements
between Corrective Services NSW and Juvenile Justice NSW. This enables the
type of officer supervising an offender to be changed without an application
being made to the sentencing court to vary the supervision condition. Items
[10] and [11] are consequential amendments. Items [14]–[16] make the
same amendments in relation to a supervision condition imposed on a
conditional release order and items [18] and [19] make the same amendments in
relation to supervision under existing orders.
Item [13] provides that the sentencing court may
not impose a supervision condition on a community correction order in relation
to an interstate offender, unless the State or Territory is an approved
jurisdiction under the regulations. The amendment also provides that the
sentencing court may not impose a community service work condition for an
interstate offender, unless the offender is able and willing to travel to New
South Wales to complete the work or resides in an approved
jurisdiction.
Item [17] provides that a sentencing court may
not impose a supervision condition on a conditional release order in respect
of an interstate offender, unless the State or Territory is approved under the
regulations.
Item [20] amends the Crimes
(Administration of Sentences) Act 1999 to provide that the
State Parole Authority is not required to impose an additional condition on an
intensive correction order to replace a revoked additional condition if there
are exceptional circumstances.
1.9Criminal Assets Recovery Act 1990 No
23
[1]Section 10A Proceedings for
restraining orders
Insert at the end of section 10A (5) (a)
(iii):
or
(iv)
the person has not disclosed an interest in
property in evidence or a warranty or other representation given or made by
the person in proceedings relating to an application for an assets forfeiture
order, proceeds assessment order or unexplained wealth order, or examination
proceedings under this Act, and the interest to which the application relates
is capable of being the subject of an order under section 31A or 31B because
of that non-disclosure,
[2]Section 10D Duration of
restraining orders
Insert at the end of section 10D (1) (d):
, or
(e)
there is an application for an order under
section 31A in respect of the interest pending before the Supreme Court,
or
(f)
there is an unsatisfied order under section 31B
in force against the person whose non-disclosure formed the basis of the
restraining order or there is an application for such an order pending before
the Supreme Court.
[3]Section 20 Effect on
restraining order of refusal to make confiscation order
Omit “in respect of interests in property
to which the restraining order relates or a proceeds assessment order or
unexplained wealth order” from section 20 (1).
Insert instead “or an order under section
31A in respect of interests in property to which the restraining order relates
or a proceeds assessment order, an unexplained wealth order or an order under
section 31B”.
Explanatory
note
Item [1] of the proposed amendments provides that
the Supreme Court may make a restraining order in respect of a person’s
interest in property that is capable of being the subject of an assets
forfeiture order, proceeds assessment order or unexplained wealth order
because the person did not disclose the interest during proceedings in which
the New South Wales Crime Commission was seeking such an order in the same way
as a restraining order can be made in respect of a person’s interest in
property that was disclosed.
Item [2] specifies how long a restraining order
made in respect of an undisclosed interest in property remains in
force.
Item [3] is a consequential
amendment.
1.10Criminal Procedure Act 1986 No
209
[1]Section
275A
Insert after the heading to Part 2 of Chapter
6:
275ANSW Police Force exhibits
management system
In any criminal proceedings, the production of
one or more exhibit detail sheets certified by a member of the NSW Police
Force to have been issued under the authority of the NSW Police Force exhibits
management system, and relating to the whole or part of an exhibit identified
in the sheets, is prima facie evidence of the dealings with that exhibit that
are listed in the sheets, without proof of the signature or appointment of the
person purporting to sign the sheets.
[2]Section 279 Compellability of
family members to give evidence in certain proceedings
Omit section 279 (1) (a) (not including the
note). Insert instead:
(a)
a reference to a member of the accused
person’s family means the spouse or de facto partner of the accused
person or a parent (within the meaning of the Evidence Act
1995) or child (within the meaning of that Act) of the
accused person, and
[3]Section 279 (1)
(c)
Omit “the spouse of an accused
person”.
Insert instead “a member of an accused
person’s family”.
[4]Section 279 (1)
(c)
Omit “the spouse” where secondly
occurring.
Insert instead “a member of the accused
person’s family”.
[5]Section 279 (2) and
(3)
Omit “The spouse of an accused
person” wherever occurring.
Insert instead “A member of an accused
person’s family”.
[6]Section 279 (2)
(a)
Omit “the spouse”. Insert instead
“a member of the accused person’s
family”.
[7]Section 279 (2) (b)
(ii)
Omit “of the accused person and the
spouse”.
Insert instead “(within the meaning of the
Evidence Act 1995) of the accused
person”.
[8]Section 279
(2A)
Insert after section 279 (2):
(2A)
This section does not make a member of an accused
person’s family (other than the accused person’s spouse)
compellable to give evidence in proceedings for a domestic violence offence
committed on a member of the accused person’s family if the accused
person is under the age of 18 years.
[9]Section 279
(3)
Omit “the spouse”. Insert instead
“the family member”.
[10]Section 279
(4)
Omit “the spouse of an accused
person”.
Insert instead “a member of an accused
person’s family”.
[11]Section 279 (4)
(a)
Omit “that spouse”. Insert instead
“that family member”.
[12]Section 279 (4)
(b)
Omit “the spouse”. Insert instead
“the family member”.
[13]Section 279 (5), (6) and
(8)
Omit “the spouse of an accused
person” wherever occurring.
Insert instead “a member of an accused
person’s family”.
[14]Chapter 6, Part
2B
Insert after Part 2A of Chapter 6:
Part 2BTerrorism
evidence
281GDefinitions
(1)
In this Part:
accused
person, criminal
investigation, criminal
proceedings and prosecuting authority have the same
meanings as in Part 2A of this Chapter.
Commonwealth Criminal Code means the
Criminal Code set out in the Schedule to the Criminal Code Act
1995 of the Commonwealth.
designated terrorism evidence means
any thing that is designated as terrorism evidence by a prosecuting authority,
as identified in a terrorism evidence notice.
publish means disseminate or provide
access to one or more persons by means of the internet, radio, television or
other media.
terrorism
evidence means any thing that contains or displays material
that:
(a)
advocates support for engaging in any terrorist
acts or violent extremism, or
(b)
relates to planning or preparing for, or engaging
in, any terrorist acts or violent extremism, or
(c)
advocates joining or associating with a terrorist
organisation.
terrorism
evidence notice means a notice under this Part that
identifies a thing as terrorism evidence.
terrorist
act has the same meaning as in Part 5.3 of the Commonwealth
Criminal Code.
terrorist
organisation has the same meaning as in Division 102 of Part
5.3 of the Commonwealth Criminal Code.
unrepresented accused person means
an accused person who is not represented by an Australian legal
practitioner.
(2)
In this Part:
(a)
a reference to an accused
person does not include a reference to an Australian legal
practitioner representing the accused person, and
(b)
a reference to a prosecuting authority does include a
reference to an Australian legal practitioner representing the prosecuting
authority.
281HAccused person not entitled to
copy of terrorism evidence
(1)
A prosecuting authority is not required and
cannot be required (whether by subpoena or any other procedure), in or in
connection with any criminal investigation or criminal proceedings, to give an
accused person a copy of any thing designated by the prosecuting authority as
terrorism evidence.
(2)
A prosecuting authority may designate a thing as
terrorism evidence only if the prosecuting authority reasonably considers the
thing to be terrorism evidence.
(3)
This section applies despite anything to the
contrary in this or any other Act, or any other law.
281IProcedure for dealing with
terrorism evidence
(1)
If, but for this Part, a prosecuting authority
would be required, in or in connection with any criminal investigation or
criminal proceedings, to give to an accused person any thing designated by the
prosecuting authority as terrorism evidence, the prosecuting authority
must:
(a)
identify the thing that has been designated as
terrorism evidence in a written notice (a terrorism
evidence notice), and
(b)
serve the notice on:
(i)
in the case of an unrepresented accused
person—the accused person, or
(ii)
in the case of an accused person represented by
an Australian legal practitioner—the Australian legal
practitioner.
(2)
A terrorism evidence notice must also contain the
following information:
(a)
that the prosecuting authority is not required
to, and will not, give the accused person a copy of designated terrorism
evidence,
(b)
that an unrepresented accused person may view or
listen to the designated terrorism evidence at a place nominated by the
prosecuting authority and under the supervision of the prosecuting
authority,
(c)
the name and contact details of the person
responsible for arranging for the unrepresented accused person to view or
listen to the designated terrorism evidence on behalf of the prosecuting
authority,
(d)
that the prosecuting authority will give an
Australian legal practitioner representing the accused person a copy of the
designated terrorism evidence but the Australian legal practitioner is not to
allow the accused person to view or listen to the evidence except under the
supervision of the Australian legal practitioner,
(e)
that it is an offence for an accused person to be
in possession of designated terrorism evidence and for an Australian legal
practitioner to give possession of designated terrorism evidence to the
accused person.
281JReturn of designated terrorism
evidence
(1)
A prosecuting authority may also serve a
terrorism evidence notice in respect of evidence that it has provided to the
accused person (including by subpoena or any other procedure) in or in
connection with a criminal investigation or criminal proceedings that it later
designates as terrorism evidence.
(2)
The notice is to identify the thing that has been
designated as terrorism evidence, and is to be served on the accused person or
the Australian legal practitioner who represents the accused person, in the
same way as a notice under section 281I.
(3)
A terrorism evidence notice that is served under
this section must also contain the following information:
(a)
that the accused person must return the
designated terrorism evidence, if it is in the person’s possession, to
the prosecuting authority within the period of time specified in the notice
(not being less than 7 days after the notice is served on the accused
person),
(b)
that an unrepresented accused person may, after
having returned the designated terrorism evidence, view or listen to the
evidence at a place nominated by the prosecuting authority and under the
supervision of the prosecuting authority,
(c)
the name and contact details of the person
responsible for arranging for the unrepresented accused person to view or
listen to the designated terrorism evidence on behalf of the prosecuting
authority,
(d)
that an Australian legal practitioner
representing an accused person may retain the designated terrorism evidence
but is not to allow the accused person to view or listen to the designated
terrorism evidence except under the supervision of the Australian legal
practitioner,
(e)
that it is an offence for an accused person to be
in possession of designated terrorism evidence and for an Australian legal
practitioner to give possession of designated terrorism evidence to the
accused person.
281KProcedures for giving access
to designated terrorism evidence to unrepresented accused
person
(1)
After receiving a terrorism evidence notice, an
unrepresented accused person may give the prosecuting authority a written
notice (an access
request notice) that indicates that the unrepresented
accused person requires access to the designated terrorism
evidence.
(2)
The prosecuting authority must, as soon as
practicable after receiving an access request notice, give the unrepresented
accused person reasonable access to the designated terrorism evidence so as to
enable them to view or listen to (but not copy) the evidence. This may require
access to be given on more than one occasion.
(3)
The prosecuting authority may require any such
access to take place subject to such conditions as the prosecuting authority
considers appropriate to ensure that there is no unauthorised reproduction or
circulation of the designated terrorism evidence and that its integrity is
protected.
(4)
Without limiting subsection (3), the prosecuting
authority may require any such access to take place under the supervision of
the prosecuting authority or a person assisting the prosecuting
authority.
(5)
A person who is given access to designated
terrorism evidence by a prosecuting authority under this section must not,
without the authority of the prosecuting authority:
(a)
copy, or permit a person to copy, the designated
terrorism evidence, or
(b)
give the designated terrorism evidence to another
person, or
(c)
remove the designated terrorism evidence from the
custody of the prosecuting authority, or
(d)
publish the designated terrorism
evidence.
Maximum penalty: 100 penalty units or
imprisonment for 2 years, or both.
281LImproper copying or
circulation of designated terrorism evidence
(1)
A person who has possession of designated
terrorism evidence and who knows, or ought reasonably to know, that it is
designated terrorism evidence, must not copy, or permit a person to copy, the
evidence, give possession of the evidence to another person or publish the
evidence except:
(a)
for the legitimate purposes of a criminal
investigation or criminal proceedings, or
(b)
if the person is a public official, in the proper
exercise of the person’s public official functions (including any
functions relating to education or training).
Maximum penalty: 100 penalty units or
imprisonment for 2 years, or both.
(2)
The exceptions provided for by subsection (1) (a)
and (b) do not authorise:
(a)
an Australian legal practitioner representing an
accused person to give possession of designated terrorism evidence to the
accused person, except while the accused person is under the supervision of
the Australian legal practitioner, or
(b)
an accused person to copy, or to permit a person
to copy, or to publish any designated terrorism evidence or to give possession
of any designated terrorism evidence to any other person other than an
Australian legal practitioner representing the person or the prosecuting
authority.
(3)
In this section:
public
official means a public official (within the meaning of the
Independent Commission Against Corruption Act
1988) who has possession of designated terrorism evidence
as a result of the exercise of, or an opportunity that arose in the exercise
of, public official functions in or in connection with a criminal
investigation or criminal proceedings.
281MAccused person not to possess
designated terrorism evidence
(1)
An accused person who knows, or ought reasonably
to know, that evidence is designated terrorism evidence must not be in
possession of that evidence, except while under the supervision of:
(a)
in the case of an unrepresented accused
person—the prosecuting authority or a person assisting the prosecuting
authority, or
(b)
in the case of an accused person represented by
an Australian legal practitioner—the Australian legal
practitioner.
Maximum penalty: 100 penalty units or
imprisonment for 2 years, or both.
(2)
This section does not apply to designated
terrorism evidence that is in the possession of an accused person if:
(a)
a terrorism evidence notice has been served on
the accused person requiring the person to return the designated terrorism
evidence to the prosecuting authority, and
(b)
the period within which the designated terrorism
evidence must be returned has not ended.
281NProsecuting authority entitled
to retain possession of terrorism evidence during criminal
proceedings
(1)
If, during any criminal proceedings, an
unrepresented accused person is given terrorism evidence, or a copy of
terrorism evidence, by the prosecuting authority in the proceedings, the court
must, on application by the prosecuting authority, direct the unrepresented
accused person to return the terrorism evidence or copy to the custody of the
prosecuting authority at or before the end of each day during which the
proceedings are heard.
(2)
At the completion of any criminal proceedings in
which terrorism evidence is tendered by the prosecuting authority, or
terrorism evidence given to the unrepresented accused person by the
prosecuting authority is tendered by the unrepresented accused person, the
court must, on application by the prosecuting authority, direct that the
terrorism evidence, and any copies of the terrorism evidence made for the
purposes of the proceedings, be returned to the custody of the prosecuting
authority.
[15]Section
298A
Insert after section 298:
298AVictim cannot be required to
identify counsellor
(1)
A person cannot seek to compel (whether by
subpoena or any other procedure) a victim or alleged victim of a sexual
assault offence to produce a document or give evidence that would disclose the
identity of the victim or alleged victim’s counsellor in, or in
connection with, criminal proceedings or preliminary criminal
proceedings.
(2)
In this section:
counsellor of a victim or alleged
victim of a sexual assault offence means a counsellor (within the meaning of
section 296 (4)) to whom or by whom a counselling communication that is a
protected confidence is made.
[16]Schedule 2 Savings,
transitional and other provisions
Omit “to continue” from clause 84
(7).
[17]Schedule 2, clause 92
(3)
Insert after clause 92 (2):
(3)
To avoid doubt, section 20 applies to an
indictment presented at a pre-recorded evidence hearing.
[18]Schedule
2
Insert at the end of the Schedule, with
appropriate Part and clause numbering:
PartProvisions consequent on
enactment of Justice Legislation Amendment Act (No
2) 2018
Definition
In this Part, amending Act means the Justice Legislation Amendment Act (No 2)
2018.
Compellability of family
members
Section 279, as amended by the amending Act, does
not apply in relation to proceedings the hearing of which began before the
section was amended. Section 279, as in force before it was amended, continues
to apply in relation to such proceedings.
Terrorism
evidence
Part 2B of Chapter 6, as inserted by the amending
Act, extends to a criminal investigation or criminal proceedings commenced but
not finally determined before the commencement of that
Part.
Sexual assault communications
privilege
Section 298A, as inserted by the amending Act,
extends to proceedings commenced but not finally determined before the
commencement of that section.
Explanatory
note
Item [1] of the proposed amendments provides that
an exhibit detail sheet that is issued under the NSW Police Force exhibits
management system and that is certified by a member of the NSW Police Force is
prima facie evidence of the dealings with the exhibit that are listed in the
sheet.
Item [5] extends the current provision that
compels the spouse or de facto partner of an accused person to give evidence
in proceedings for a domestic violence or child assault offence so that a
parent or child of an accused person is also compellable to give evidence in
those proceedings. Item [8] provides that family members of an accused person
(other than the spouse) are not compellable in domestic violence proceedings,
if the accused person is under the age of 18 years. They may still be
compellable under the Evidence Act 1995.
Items [2]–[4], [6], [7] and [9]–[13] are consequential
amendments.
Item [14] inserts a new scheme that restricts
access to evidence in a criminal investigation or criminal proceedings that
the prosecuting authority reasonably considers to be terrorism
evidence.
Proposed section 281G contains relevant
definitions. A prosecuting authority means the
Director of Public Prosecutions, a police officer or other public official who
is responsible for a criminal investigation or criminal proceedings. Terrorism
evidence means any thing that contains or displays material
that:
(a)
advocates support for engaging in any terrorist
acts or violent extremism, or
(b)
relates to planning or preparing for, or engaging
in, any terrorist acts or violent extremism, or
(c)
advocates joining or associating with a terrorist
organisation.
Proposed section 281H provides that a prosecuting
authority is not required, in or in connection with a criminal investigation
or criminal proceedings, to give evidence to an accused person that it
designates as terrorism evidence. A prosecuting authority may designate a
thing as terrorism evidence only if it reasonably considers it to be terrorism
evidence.
Proposed section 281I requires a prosecuting
authority to notify an unrepresented accused person, or the Australian legal
practitioner representing an accused person, that evidence has been designated
as terrorism evidence and will not be provided to the accused person. The
notice must also specify how the unrepresented accused person may view the
evidence under the supervision of the prosecuting authority and indicate that
an accused person who is represented will be able to view the evidence under
the supervision of the accused person’s Australian legal practitioner,
who will be given the evidence.
Proposed section 281J enables a prosecuting
authority to require an accused person to return any terrorism evidence in the
accused person’s possession that the prosecuting authority has later
designated as terrorism evidence.
Proposed section 281K sets out how an
unrepresented accused person will be given access to designated terrorism
evidence. It will be an offence for a person who is given access to designated
terrorism evidence by a prosecuting authority to copy or publish the evidence,
to give the evidence to another person or to remove the evidence from the
custody of the prosecuting authority. The maximum penalty is 100 penalty units
or imprisonment for 2 years, or both.
Proposed section 281L makes it an offence for a
person who has possession of designated terrorism evidence and who knows, or
ought reasonably to know, it is designated terrorism evidence to copy or
publish the evidence or to give the evidence to another person, except for the
legitimate purposes of a criminal investigation or criminal proceedings or in
the proper exercise of a public official’s function. The maximum penalty
is 100 penalty units or imprisonment for 2 years, or both. The proposed
section makes it clear that an Australian legal practitioner is not permitted
to give designated terrorism evidence to an accused person and that an accused
person must not copy or publish designated terrorism evidence or give the
evidence to any person except the accused person’s Australian legal
practitioner or the prosecuting authority.
Proposed section 281M makes it an offence for an
accused person who knows, or ought reasonably to know, that evidence is
designated terrorism evidence to be in possession of that evidence. The
maximum penalty is 100 penalty units or imprisonment for 2 years, or
both.
Proposed section 281N relates to terrorism
evidence that has not been designated as terrorism evidence and that is given
to an accused person or tendered to the court during criminal proceedings. The
court must, on request by the prosecuting authority, require such evidence to
be returned to the prosecuting authority at the end of each day of criminal
proceedings or at the completion of the proceedings.
Item [15] amends the current prohibition on the
disclosure of certain confidential sexual assault counselling communications
to provide that a person cannot seek to compel (whether by subpoena or any
other procedure) a victim of a sexual assault offence to disclose the identity
of the victim’s counsellor.
Items [16] and [17] amend provisions relating to
a pilot scheme that enables a child who is a complainant or witness in child
sexual assault proceedings to give evidence by means of a pre-recorded
hearing. Item [16] clarifies that a child complainant or witness is able to
give evidence by means of a pre-recorded hearing even if the child becomes an
adult before the proceedings are finalised. Item [17] clarifies that an
indictment presented at a pre-recorded hearing cannot be amended after it has
been presented, except in certain circumstances.
Item [18] contains transitional
provisions.
1.11Criminal Records Act 1991 No
8
Section 7 Which convictions
are capable of becoming spent?
Insert after section 7 (4):
(5)
A reference in this section to a prison sentence
means, in the case of an aggregate sentence of imprisonment (within the
meaning of the Crimes (Sentencing Procedure) Act
1999) imposed in respect of more than 1 offence, each
prison sentence that would have been imposed for each offence had separate
sentences been imposed instead of an aggregate sentence, as recorded by the
court that imposed the sentence.
Explanatory
note
The proposed amendment makes it clear that if an
aggregate sentence is imposed on a person for a series of offences, it is the
individual prison sentences that would have been imposed for each offence that
are to be used for the purpose of determining whether each of the
person’s convictions is capable of becoming spent. Only prison sentences
of 6 months or less are capable of becoming spent.
1.12Drug
Misuse and Trafficking Act 1985 No
226
[1]Section
39CA
Insert after section 39C:
39CATesting of
substances
After determining the quantity of a substance to
which this Part applies, the identity of the substance may be determined on
the basis of the testing and analysis of a representative sample of the
substance in accordance with the regulations.
[2]Schedule
1
Insert “(excluding any exception listed
under the matter relating to Tetrahydrocannabinol and its alkyl
homologues)” after “Cannabis leaf”.
[3]Schedule 3,
heading
Omit “and transitional”.
Insert instead “, transitional and
other”.
[4]Schedule 3, clause
4
Insert after clause 3:
4Testing of
substances
Section 39CA, as inserted by the Justice Legislation Amendment Act (No 2)
2018, extends to a substance to which Part 3A applies that
was in the custody of a member of the NSW Police Force on the commencement of
that section.
Explanatory
note
Item [1] of the proposed amendments provides that
the identity of a substance that is in the custody of the NSW Police Force
(such as a prohibited plant or prohibited drug) may be determined by using
testing and analysis of a representative sample of the substance. Item [4] is
a transitional provision and item [3] is a consequential
amendment.
Item [2] is a law revision amendment consequent
on an amendment made to the Drug Misuse and
Trafficking Act 1985 by Schedule 1.11 to the Justice Legislation Amendment Act (No 2)
2017. The amendment makes it clear that certain hemp seed
food products that have a low concentration of tetrahydrocannabinol are not a
prohibited drug, whether in the form of cannabis oil or cannabis leaf (which
is defined to include cannabis seeds).
1.13Government Information (Public Access) Act 2009
No 52
Schedule 1 Information for
which there is conclusive presumption of overriding public interest against
disclosure
Insert after clause 15:
16Information provided to High
Risk Offenders Assessment Committee
It is to be conclusively presumed that there is
an overriding public interest against disclosure of information contained in
any document prepared for the purposes of the High Risk Offenders Assessment
Committee established by the Crimes (High Risk
Offenders) Act 2006 or any of its
subcommittees.
Explanatory
note
The proposed amendment provides for a conclusive
presumption under the Government Information (Public Access)
Act 2009 that there is an overriding public interest
against disclosure of information contained in any document prepared for the
purposes of the High Risk Offenders Assessment Committee established by the
Crimes (High Risk Offenders) Act 2006 or
any of its subcommittees.
1.14Guardianship Act 1987 No
257
[1]Section 3F Persons who are
“parties” to proceedings under this Act
Insert after section 3F (3) (e):
(e1)
the Public
Guardian,
[2]Section 3F (4) (e1) and
(e2)
Insert after section 3F (4) (e):
(e1)
the Public Guardian,
(e2)
the NSW Trustee,
Explanatory
note
Item [1] of the proposed amendments extends the
list of persons who are parties to proceedings in the NSW Civil and
Administrative Tribunal relating to a review of a guardianship order to
include the Public Guardian. Item [2] includes the Public Guardian and the NSW
Trustee and Guardian as parties to proceedings relating to a review of an
appointment of an enduring guardian.
1.15Industrial Relations Act 1996 No
17
[1]Section 383
Procedure
Insert “, the Civil
Procedure Act 2005” after “Criminal Procedure Act 1986” in
section 383 (1).
[2]Section 383
(1)
Omit “(but not the Civil
Procedure Act 2005)”.
Explanatory
note
Items [1] and [2] of the proposed amendments
apply the Civil Procedure Act
2005 to proceedings in the Local Court before the Chief
Industrial Magistrate or other Industrial Magistrate.
1.16Land
and Environment Court Act 1979 No
204
[1]Section 20 Class
4—environmental planning and protection, development contract and strata
renewal plan civil enforcement
Insert in alphabetical order in section 20 (3)
(a):
Coal Mine
Subsidence Compensation Act
2017,
[2]Section 21 Class
5—environmental planning and protection summary
enforcement
Insert after section 21 (hf):
(hg)
proceedings under section 55 of the Coal Mine Subsidence Compensation Act
2017,
Explanatory
note
Item [1] of the proposed amendments provides that
certain civil proceedings under the Coal Mine
Subsidence Compensation Act 2017 are to be dealt with in
Class 4 of the Court’s jurisdiction. Item [2] provides that summary
proceedings under that Act are to be dealt with in Class 5 of the
Court’s jurisdiction.
1.17Law
Enforcement (Powers and Responsibilities) Act 2002 No
103
[1]Section 3
Interpretation
Insert “(including a knife blade, razor
blade or any other blade)” after “knife” in paragraph (b) of
the definition of dangerous
implement in section 3 (1).
[2]Section
23
Insert in Division 1 of Part 4, after section
22:
23Power to search persons for
dangerous implements without warrant in public places and
schools
(1)
A police officer may, without a warrant, stop,
search and detain a person who is in a public place or a school, and anything
in the possession of or under the control of the person, if the police officer
suspects on reasonable grounds that the person has a dangerous implement
unlawfully in the person’s possession or under the person’s
control.
(2)
To avoid doubt, if the person is in a school and
is a student at the school, the police officer may also search the
person’s locker at the school and examine any bag or other personal
effect that is inside the locker.
(3)
For the purposes of this section, the fact that a
person is present in a location with a high incidence of violent crime may be
taken into account in determining whether there are reasonable grounds to
suspect that the person has a dangerous implement in the person’s
possession or under the person’s control.
(4)
In conducting a search of a student in a school
under this section, a police officer must, if reasonably possible to do so,
allow the student to nominate an adult who is on the school premises to be
present during the search.
(5)
A police officer may seize and detain anything
found as a result of a search under this section that the police officer has
reasonable grounds to suspect is a dangerous implement that is unlawfully in
the person’s possession or under the person’s
control.
(6)
For the purposes of this section:
(a)
locker includes any facility for the
storage of a student’s personal effects, and
(b)
anything inside a person’s locker is taken
to be under the control of the person.
[3]Part 4, Division 2 Additional
personal search and seizure powers in public places and
schools
Omit the Division.
[4]Section 82 Entry by
invitation
Omit “subsection (1)” from section 82
(3A). Insert instead “this section”.
[5]Section 94A Application by
occupier for review by a Magistrate of crime scene
warrant
Omit “an authorised officer” from
section 94A (2). Insert instead “a
Magistrate”.
[6]Section 94A
(4)
Omit “the authorised officer”. Insert
instead “the Magistrate”.
[7]Section 117 Certain times to
be disregarded in calculating investigation period
Insert after section 117 (1) (n):
(o)
any time that is reasonably required for the
person to undertake a breath test or breath analysis or to provide a blood or
urine sample under Division 4 of Part 10.
[8]Section 198A Giving of
directions to groups of persons
Insert “(or the warning referred to in
section 198 (6) in the case of a direction given under section 198)”
after “the direction” in section 198A (2).
Explanatory
note
Item [2] of the proposed amendments amends an
existing police power to require a person in a public place or a school to
submit to a search of the person (or a student’s locker) if the police
officer suspects on reasonable grounds that the person has a dangerous
implement. A police officer will be able to stop, search and detain a person
who is in a public place or a school (and to search a school student’s
locker) in those circumstances. The police officer will also be able to seize
and detain any dangerous implement found during a search, instead of the
existing power to require the person to produce any dangerous implement or
other metal object. Item [3] removes the offence of failing to comply with a
police officer’s requirements relating to a search and removes a power
to confiscate dangerous implements, which are no longer necessary because of
the amended powers. Item [1] is a consequential amendment.
Item [5] provides that an occupier of premises in
respect of which a crime scene warrant is issued may apply to a Magistrate
(and no longer to a registrar of the Local Court) for a review of the warrant.
Item [6] is a consequential amendment.
Item [7] provides that the time taken for a
person to undertake a breath test or breath analysis or to provide a blood or
urine sample under Division 4 of Part 10 (which applies in relation to an
alleged offence under section 25A (2) of the Crimes Act
1900) is not to be included when calculating the
investigation period that begins when a person is arrested and is limited to 6
hours (unless extended by a warrant).
Item [8] provides that when a police officer
gives a move on direction to a group of intoxicated persons in a public place,
the police officer is not required to repeat the associated warning (a warning
that it is an offence to be intoxicated and disorderly in a public place at
any time within 6 hours after the move on direction is given) to each person
in the group.
Item [4] corrects a
cross-reference.
1.18Mental
Health (Forensic Provisions) Act 1990 No
10
[1]Section 33 Mentally ill
persons
Omit “employed in the Department of
Justice” from section 33 (5A) (a).
[2]Section 33 (5AA) and
(5AB)
Insert after section 33 (5A):
(5AA)
A function conferred on a juvenile justice
officer by an order under this section is taken to be a function under the
Children (Detention Centres) Act 1987
and the juvenile justice officer has the same functions in respect of the
defendant as the officer has in respect of a detainee under that Act and the
regulations under that Act.
(5AB)
If a correctional officer has power under an
order under this section to take a defendant to or from a place, that power is
taken to be a function under the Crimes
(Administration of Sentences) Act 1999 and the
correctional officer has the same functions in respect of the defendant as the
officer has in respect of an inmate under that Act and the regulations under
that Act.
[3]Section 33 (5C) and
(5D)
Insert after section 33 (5B):
(5C)
An order under subsection (1) (b) or (1D) (b)
that a defendant be brought back before a Magistrate or authorised officer may
be satisfied by taking the defendant to an appropriate police officer for the
making of a bail decision in respect of the defendant.
(5D)
An appropriate police officer may make a bail
decision in respect of a defendant brought before the appropriate police
officer under this section (despite section 43 (3) of the Bail
Act 2013).
[4]Section 33
(6)
Omit the subsection. Insert instead:
(6)
In this section:
appropriate police officer means a
police officer who may make a bail decision under the Bail
Act 2013 in respect of a person accused of an offence who
is present at a police station.
authorised officer has the same
meaning as in the Criminal Procedure Act
1986.
correctional officer has the same
meaning as in the Crimes Administration of Sentences) Act
1999.
juvenile
justice officer has the same meaning as in the Children (Detention Centres) Act
1987.
[5]Section 39 Effect of finding
and declaration of mental illness
Omit “the Minister for Health and”
from section 39 (3).
Explanatory
note
Item [2] provides that a juvenile justice officer
or correctional officer who is ordered to take a defendant to a mental health
facility for a mental health assessment has the same functions in respect of
the defendant (including powers to restrain, search and use reasonable force
and safeguards applying to the use of those powers) as the officer otherwise
has in respect of a juvenile detainee or adult inmate.
Item [3] enables a defendant, following a mental
health assessment, to be taken to a police station for a police officer to
decide whether or not to grant the defendant bail, instead of being taken
before a Magistrate or authorised officer.
Item [4] inserts relevant definitions and item
[1] is a consequential amendment.
Item [5] removes the requirement for the District
or Supreme Court to notify the Minister for Health of the making of an order
detaining or releasing an accused person following a jury’s return of a
special verdict that the person was not guilty of an offence by reason of
mental illness.
1.19Powers
of Attorney Act 2003 No 53
Section 35 Who are interested
persons and parties in relation to applications
Insert after section 35 (2) (c):
(c1)
the NSW Trustee and
Guardian,
Explanatory
note
The proposed amendment extends the list of
persons who are parties to proceedings in the Supreme Court or the NSW Civil
and Administrative Tribunal relating to a review of an enduring power of
attorney to include the NSW Trustee and Guardian.
1.20Succession Act 2006 No
80
[1]Section 22 Court must be
satisfied about certain matters
Omit “allow representation of all
persons” from section 22 (e).
Insert instead “allow representation, as
the Court considers appropriate, of persons”.
[2]Section 91 Grant of probate or
administration to enable application to be dealt with
Omit “the applicant” from section 91
(2).
Insert instead “any person the Court
considers appropriate”.
Explanatory
note
Item [1] of the proposed amendments clarifies an
existing provision that applies in an application by a person to make, alter
or revoke a will of a person who lacks testamentary capacity. The Supreme
Court (the Court) is currently required to be
satisfied that adequate steps have been taken to allow representation of all
persons with a legitimate interest in the application. The amendment makes it
clear that the Court can determine the appropriate level of representation of
those persons.
Item [2] provides that, when there is an
application before the Court for a family provision order or a notional estate
order in respect of an estate, the Court may grant interim administration of
the estate to any person the Court considers appropriate, rather than only to
the person applying for the family provision order or notional estate
order.
1.21Supreme Court Act 1970 No
52
Section 69 Proceedings in lieu
of writs
Omit section 69 (3). Insert instead:
(3)
The jurisdiction of the Court to grant any relief
or remedy in the nature of a writ of certiorari includes, if the Court is
satisfied that the ultimate determination of a court or tribunal in any
proceedings has been made on the basis of an error of law that appears on the
face of the record of the proceedings:
(a)
jurisdiction to quash the ultimate determination
of the court or tribunal, and
(b)
if the Court determines that, as a matter of law,
only one particular determination should have been made by the court or
tribunal, jurisdiction to make such judgment or orders as are required for the
purpose of finally determining the proceedings.
Explanatory
note
The proposed amendment makes it clear that the
Supreme Court may, if it determines that a court or tribunal has made its
ultimate determination on the basis of an error of law that appears on the
face of the record of the proceedings:
(a)
quash the determination of the court or tribunal,
and
(b)
if the Supreme Court determines that, as a matter
of law, only one particular determination should have been made by the court
or tribunal, make such judgment or orders as are required to finally determine
the proceedings.
The amendment addresses a concern raised in
Morgan v District Court of New
South Wales[2017] NSWCA 105 relating
to the limitation on the power of the Court of Appeal to make orders finally
disposing of a matter (rather than remitting the matter to the lower court
concerned).
1.22Terrorism (High Risk Offenders) Act 2017 No
68
[1]Section 4
Definitions
Insert “or the capacity of intelligence
agencies (for example, the Australian Security Intelligence Organisation) to
carry out their functions” after “such acts” in paragraph
(a) of the definition of terrorism
intelligence in section 4 (1).
[2]Section 4 (1), paragraph (b)
of the definition of “terrorism
intelligence”
Insert “or investigations by intelligence
agencies” after “investigations”.
[3]Section 4 (1), paragraph (c)
of the definition of “terrorism
intelligence”
Insert “or the functions of intelligence
agencies” after “enforcement”.
[4]Section
12A
Insert after section 12:
12APersons under suspended orders
to be treated as being supervised or detained under this
Act
A person in respect of whom an order under Part 2
or 3 has been made is to continue to be treated as being supervised or
detained under this Act for the purposes of any definition for this Act set
out in a provision of this Division that uses that expression even if the
person’s obligations under the order have been
suspended.
[5]Section
17A
Insert after section 17:
17APublic interest immunity not
abrogated
Nothing in this Act operates to abrogate public
interest immunity.
[6]Section 20 Supreme Court may
make extended supervision orders against eligible offenders if unacceptable
risk
Insert “(or was in custody or under
supervision at the time the original application for the order was
filed)” after “under supervision” in section 20
(a).
[7]Section 34 Supreme Court may
make continuing detention orders against eligible offenders if unacceptable
risk
Insert “(or was a detained offender or
supervised offender at the time the original application for the order was
filed)” after “supervised offender” in section 34 (1)
(a).
[8]Section
60
Omit the section. Insert instead:
60Use of information involving
terrorism intelligence
(1)Making of terrorism
intelligence applications
The Attorney General or a prescribed terrorism
intelligence authority may make an application (a terrorism
intelligence application) to the Supreme Court in any
proceedings before the Court under this Act (the substantive proceedings) for
particular information to be dealt with as terrorism intelligence in those
proceedings.
(2)
The Supreme Court must grant a terrorism
intelligence application if the Court is satisfied that:
(a)
the information to which the application relates
was provided to the Attorney General under this Part, and
(b)
the information is terrorism
intelligence.
(3)
If the Supreme Court is not satisfied that
information to which a terrorism intelligence application relates is terrorism
intelligence, the Court must, before determining the application, give each of
the following an opportunity to withdraw the information from consideration by
the Court:
(a)
the applicant for the terrorism intelligence
application,
(b)
any prescribed terrorism intelligence authority
that provided the information.
(4)
Any information that is withdrawn from
consideration by the Supreme Court must not be:
(a)
disclosed to a party to the substantive
proceedings who is an eligible offender or the offender’s legal
representatives, or
(b)
taken into consideration by the Supreme Court in
determining the substantive proceedings.
(5)Unrepresented eligible
offenders
If a party to the substantive proceedings is an
eligible offender who does not have any legal representatives in those
proceedings, the Supreme Court is to appoint a qualified person (an independent third party
representative) to represent the party for the purposes of a
terrorism intelligence application made in the proceedings or the granting of
access to terrorism intelligence under this section.
(6)
A person is a qualified person for the purposes
of subsection (5) if the person is a person of a kind prescribed by the
regulations as being qualified to provide independent and impartial
representation for eligible offenders for the purposes of this
section.
(7)
An independent third party representative for an
eligible offender:
(a)
is to be allowed access to information or
terrorism intelligence in respect of which the representative has been
appointed by being provided with either a copy of the information or
intelligence or being allowed to view it, and
(b)
may make such submissions to the Court on behalf
of the eligible offender as the representative considers to be in the best
interests of the offender concerning:
(i)
whether or not information is terrorism
intelligence, or
(ii)
the level of access to terrorism intelligence
that should be given to the offender under this
section.
(8)
The applicant in the terrorism intelligence
application concerning the information or terrorism intelligence in respect of
which an independent third party representative has been appointed is
responsible for the payment of the costs of the services provided by the
representative.
(9)Steps to maintain
confidentiality
If the Supreme Court grants a terrorism
intelligence application, the Supreme Court is to take steps to maintain the
confidentiality of the terrorism intelligence concerned in the substantive
proceedings, including steps to receive evidence and hear argument about the
intelligence in private.
(10)
The Supreme Court is to allow one of the
following forms of access to the terrorism intelligence to be given to a party
to the substantive proceedings and the party’s legal representatives in
those proceedings (having regard to what the Court considers appropriate
because of the nature of the intelligence and the degree of risk of disclosure
to non-parties by the party or the legal representatives and any other matter
the Court considers relevant):
(a)
providing both the party and the party’s
legal representatives with a copy of the intelligence,
(b)
providing the party’s legal representatives
with a copy of the intelligence and allowing the party to view (but not have a
copy of) that intelligence,
(c)
providing the party’s legal representatives
with a copy of the intelligence, but denying the party any form of access to
that intelligence,
(d)
allowing both the party and the party’s
legal representatives to view (but not have a copy of) the
intelligence,
(e)
allowing the party’s legal representatives
to view (but not have a copy of) the intelligence, but denying the party any
form of access to that intelligence.
(11)
Without limiting subsection (10), the Supreme
Court may allow one of the following forms of access to be given to a party to
the substantive proceedings who is an eligible offender without any legal
representatives in those proceedings instead of a form of access specified by
subsection (10) (having regard to what the Court considers appropriate because
of the nature of the intelligence and the degree of risk of disclosure to
non-parties by the party and any other matter the Court considers
relevant):
(a)
providing the party with access to or a copy of
the document containing the intelligence that has been redacted to the extent
necessary to prevent the disclosure of the intelligence,
(b)
providing the party with both access to or a copy
of the document containing the intelligence that has been redacted to the
extent necessary to prevent the disclosure of the intelligence and a written
summary of the nature of the redacted intelligence,
(c)
providing the party with both access to or a copy
of the document containing the intelligence that has been redacted to the
extent necessary to prevent the disclosure of the intelligence and a written
statement of the facts that the intelligence would (or would be likely) to
establish.
(12)
Subsections (10) and (11) are subject to any
agreement under subsection (13) and the regulations.
(13)Agreements concerning dealing
with terrorism intelligence under section
An agreement may be entered at any time in the
substantive proceedings by the following persons as to arrangements about the
disclosure, protection, storage, handling or destruction of the terrorism
intelligence in the proceedings:
(a)
the Attorney General on behalf of the
State,
(b)
if the terrorism intelligence is provided by a
prescribed terrorism intelligence authority—the
authority,
(c)
one or more other parties to the proceedings (or
their legal representatives on their behalf).
(14)Orders by Supreme Court for
purposes of section
The Supreme Court may make such orders that it
considers appropriate:
(a)
to prohibit or restrict access to, or the
disclosure or publication of, the terrorism intelligence for the purposes of
this section, or
(b)
to give effect to an agreement under subsection
(13).
(15)
A person is guilty of an offence if the person
contravenes an order under this section.
Maximum penalty:
(a)
in the case of a corporation—100 penalty
units, or
(b)
in the case of an individual—100 penalty
units or imprisonment for 2 years (or both).
(16)
A person is guilty of an offence against this
subsection if the person commits an offence against subsection (15) in
circumstances in which the person:
(a)
intends to endanger the health or safety of any
person or prejudice the effective conduct of an investigation into a relevant
indictable offence, or
(b)
knows that, or is reckless as to whether, the
disclosure of the information:
(i)
endangers or will endanger the health or safety
of any person, or
(ii)
prejudices or will prejudice the effective
conduct of an investigation into a relevant indictable
offence.
Maximum penalty: imprisonment for 7
years.
(17)Regulations concerning dealing
with terrorism intelligence under section
The regulations may make provision for or with
respect to:
(a)
the ways in which terrorism intelligence to which
this section applies is to be stored, handled or destroyed,
and
(b)
the ways in which, and places at which, terrorism
intelligence to which this section applies may be accessed and documents or
records relating to such intelligence may be
prepared.
(18)Definition
In this section:
relevant
indictable offence means an offence against a law of this
State or any other Australian jurisdiction that may be prosecuted on
indictment.
[9]Section
60A
Insert after section 60:
60AWithdrawal from consideration
of documents or reports for which public interest immunity
claimed
(1)
This section applies in respect of a document or
report provided to the Attorney General under this Part if the State, or a
prescribed terrorism intelligence authority that provided it, makes a claim in
proceedings before the Supreme Court under this Act that the document or
report is subject to public interest immunity.
(2)
If the Supreme Court is not satisfied that the
document or report is subject to public interest immunity, the Court must,
before determining the claim for immunity, give the claimant an opportunity to
withdraw the document or report from consideration by the Court in the
proceedings.
(3)
However, the Supreme Court is not required to
allow the document or report to be withdrawn from consideration in the
proceedings if the Court considers that its withdrawal would be manifestly
unfair to a party to the proceedings who is an eligible
offender.
(4)
A document that is withdrawn from consideration
by the Supreme Court must not be:
(a)
disclosed to a party to the proceedings who is an
eligible offender or the offender’s legal representatives,
or
(b)
taken into consideration by the Supreme Court in
determining any proceedings under this Act.
[10]Section 68 Proceedings for
offences
Omit “60 (7) or (8)” wherever
occurring. Insert instead “60 (15) or
(16)”.
[11]Schedule 1 Savings,
transitional and other proceedings
Insert at the end of the Schedule, with
appropriate Part and clause numbering:
PartProvisions consequent on
enactment of Justice Legislation Amendment Act (No
2) 2018
Application of
amendments
(1)
An amendment to this Act made by the amending Act
extends to proceedings that were begun (but had not yet been determined)
before the amendment commenced.
(2)
Without limiting subclause (1):
(a)
an application that was made under section 60
(but had not yet been determined) before the substitution of that section by
the amending Act may be determined by reference to the section as substituted
and the definition of terrorism
intelligence in section 4 (1) (as amended by the amending
Act), and
(b)
if access to terrorism intelligence had not yet
been provided under section 60 before its substitution, it may be provided by
reference to section 60 as substituted, and
(c)
any order made by the Supreme Court under section
60 in force immediately before the substitution of the section continues in
force as an order under that section as substituted, and
(d)
any agreement in force under section 60
immediately before the substitution of the section continues in force as an
agreement under that section as substituted.
(3)
However, section 68 and clause 10H in Part 6 of
Table 2 of Schedule 1 to the Criminal
Procedure Act 1986, as in force immediately before the
amendment of section 68 by the amending Act, continue to apply in respect of
offences against section 60 committed before the commencement of the
amendment.
(4)
In this clause:
amending
Act means the Justice
Legislation Amendment Act (No 2)
2018.
Explanatory
note
Items [1]–[3] of the proposed amendments
make it clear that terrorism intelligence for the purposes of the Terrorism (High Risk Offenders) Act
2017 includes information relating to actual or suspected
terrorism activity (whether in the State or elsewhere) the disclosure of which
could reasonably be expected to have certain impacts on the operations of
intelligence agencies.
Item [4] makes it clear that a person in respect
of whom an order under Part 2 or 3 of the Act has been made is to continue to
be treated as being supervised or detained under this Act for the purposes of
any definition for this Act set out in a provision of Division 1.3 of the Act
that uses that expression even if the person’s obligations under the
order have been suspended.
Item [5] makes it clear that the Act does not
abrogate public interest immunity.
Items [6] and [7] provide that an extended
supervision order or a continuing detention order can be made in respect of an
eligible offender who was in custody or under supervision at the time the
application for the order was filed, but has since ceased to be in custody or
under supervision.
Item [8] substitutes section 60 of the Act with
the following changes:
(a)
an application to the Supreme Court (a terrorism
intelligence application) for information in proceedings
before the Supreme Court under the Act (the substantive proceedings) to be dealt
with as terrorism intelligence will not be limited to information that is
offender information,
(b)
the Supreme Court must grant a terrorism
intelligence application if the Court is satisfied that the information to
which the application relates was provided under Part 5 of the Act and the
information was terrorism intelligence,
(c)
the Supreme Court will be required to allow an
applicant in a terrorism intelligence application, or the prescribed terrorism
intelligence authority providing the information to which the application
relates, to withdraw the information from consideration by the Court if the
Court is not satisfied that the information is terrorism
intelligence,
(d)
the Supreme Court will be required to appoint a
representative for a party to the substantive proceedings who is an eligible
offender without any legal representatives in those proceedings for the
purposes of making representations for the offender concerning the
classification of information as terrorism intelligence and access to such
intelligence,
(e)
the Supreme Court will be permitted to allow more
limited forms of access to terrorism intelligence to be given to a party to
the substantive proceedings who is an eligible offender with no legal
representatives in those proceedings.
Item [9] requires the Supreme Court to allow the
State or a prescribed terrorism intelligence authority to withdraw a document
or report provided under Part 5 of the Act from consideration by the Court if
public interest immunity is claimed over it and the Court is not satisfied
that the document or report is subject to the immunity.
Item [10] is a consequential amendment and item
[11] contains savings and transitional provisions.
1.23Young
Offenders Act 1997 No 54
Section 66 Disclosure of
records
Insert after section 66 (2A):
(2B)
Despite subsection (1), information (including
records) referred to in that subsection that is in the form of statistical
data and does not identify any person to whom the information relates
may:
(a)
be divulged to the Minister or a person employed
in the Department of Justice who is involved in the administration or
execution of this Act, and
(b)
be included in any report to
Parliament.
Explanatory
note
The proposed amendment allows statistical
information about warnings, cautions and conferences given to young people
under the Young Offenders Act
1997 to be divulged to the Attorney General and persons
employed in the Department of Justice involved in the administration or
execution of that Act and to be included in reports to
Parliament.
Schedule 2Consequential and statute law
revision amendments
2.1Children (Community Service Orders) Act 1987 No
56
Section 3
Definitions
Omit the definition of officer from section 3 (1). Insert
instead:
officer means a person employed in
Juvenile Justice NSW, Department of Justice.
Explanatory
note
The proposed amendment clarifies that only those
persons employed within Juvenile Justice NSW within the Department of Justice
may perform the functions of officers under the Children (Community Service Orders) Act
1987 (rather than persons employed in the Department of
Justice generally), as a consequence of past administrative changes
orders.
2.2Court
Security Act 2005 No 1
[1]Section 12 Power to confiscate
restricted items and other things
Omit “Local Area Commander of Police”
wherever occurring in section 12 (2) (b), (3), (4), (7) and
(11).
Insert instead “Police Area Commander or
Police District Commander”.
[2]Section 12 (2)
(b)
Insert “or district” after “for
the area”.
Explanatory
note
Item [1] of the proposed amendments updates
references to a police commander as a consequence of changes to the NSW Police
Force. Item [2] is a consequential amendment.
2.3Crimes
Act 1900 No 40
[1]Section 428B Offences of
specific intent to which Part applies
Omit the matter relating to sections 38, 41, 48,
55, 158, 172, 174, 175, 176, 178BB, 179, 180, 181, 184, 185, 298, 300, 301,
302 and 302A from paragraph (a) of the Table.
Insert in appropriate order:
38
Using
intoxicating substance to commit an indictable offence
38A
Spiking
drink or food
41
Using
poison etc to injure or to cause distress or pain
48
Causing
explosives to be placed in or near building, conveyance or public
place
51A
Predatory
driving
55
Possessing
or making explosives or other things with intent to
injure
60C
Obtaining
of personal information about law enforcement officers
91M
Installing
device to facilitate observation or filming
93L
Threatening
to contaminate goods with intent to cause public alarm or economic
loss
93M
Making
false statements concerning contamination of goods with intent to cause public
alarm or economic loss
93R
Leaving or
sending an article with intent to cause alarm
192F
Intention
to defraud by destroying or concealing accounting records
192G
Intention
to defraud by false or misleading statement
192H
Intention
to deceive members or creditors by false or misleading statement of officer of
organisation
192J
Dealing
with identification information
192K
Possession
of identification information
192L
Possession
of equipment etc to make identification documents or
things
193B
(1)
Money
laundering
193D
(1)
Dealing
with property that subsequently becomes an instrument of
crime
203B
Sabotage
203C
Threaten
sabotage
249K
Blackmail
offence
253
Forgery—making false document
254
Using false
document
255
Possession
of false document
256 (1) and
(3)
Making or
possession of equipment etc for making false documents
308C
Unauthorised access, modification or impairment with intent
to commit serious indictable offence
308D
Unauthorised modification of data with intent to cause
impairment
308F
Possession
of data with intent to commit serious computer offence
308G
Producing,
supplying or obtaining data with intent to commit serious computer
offence
308H
Unauthorised access to or modification of restricted data
held in computer
308I
Unauthorised impairment of data held in computer disk, credit
card or other device
530
(1)
Serious
animal cruelty
[2]Section 428B,
Table
Omit the matter relating to sections 78I, 78L,
78O and 91 from paragraph (b).
Explanatory
note
Items [1] and [2] of the proposed amendments omit
references to repealed offences and update references to current offences in
the Crimes Act 1900, being offences that are
examples of offences of specific intent for the purpose of provisions relating
to the use of intoxication as a defence.
2.4Crimes
(Domestic and Personal Violence) Act 2007 No
80
Sections 28A (3) and 33A
(4)
Omit “Local Area Commander of Police”
wherever occurring.
Insert instead “Police Area Commander or
Police District Commander”.
Explanatory
note
The proposed amendment updates references to a
police commander as a consequence of changes to the NSW Police
Force.
2.5Crimes
(Forensic Procedures) Act 2000 No 59
Section 3
Interpretation
Omit the definition of under arrest in section 3
(1).
Explanatory
note
The proposed amendment removes a redundant
definition.
2.6Criminal Procedure Act 1986 No
209
[1]Section 332
Definitions
Omit paragraph (a) of the definition of senior
police officer in section 332 (1).
Insert instead:
(a)
a Police Area Commander, or
(a1)
a Police District Commander,
or
[2]Schedule 1 Indictable offences
triable summarily
Omit “60 (7) or (8)” from clause 10H
in Part 6 of Table 2. Insert instead “60 (15) or
(16)”.
Explanatory
note
Item [1] of the proposed amendments updates a
reference to a police commander as a consequence of changes to the NSW Police
Force.
Item [2] is consequential on the amendments made
to the Terrorism (High Risk Offenders) Act
2017 by Schedule 1 to the proposed
Act.
2.7Criminal Procedure Regulation
2017
[1]Clause 28,
heading
Omit “spouses”. Insert instead
“family members”.
[2]Schedule 1
Forms
Omit “a spouse” from Form 2. Insert
instead “a family member”.
[3]Schedule 1, Form
2
Omit “the spouse of the accused
person”.
Insert instead “a member of the accused
person’s family”.
Explanatory
note
Items [1]–[3] of the proposed amendments
update terminology as a consequence of the amendments to the Criminal Procedure Act 1986 in Schedule
1 to the proposed Act. Those amendments make a parent or child of an accused
person compellable to give evidence in proceedings for a domestic violence or
child assault offence (other than where the accused person is under the age of
18 years), as is currently the case for the spouse or de facto partner of an
accused person.
2.8Evidence Act 1995 No
25
Section 19 Compellability of
spouses and others in certain criminal proceedings
Omit “spouses” from section 19 (b).
Insert instead “family members”.
Explanatory
note
The proposed amendment updates a reference to a
provision of the Criminal Procedure Act
1986 amended by Schedule 1 to the proposed
Act.
2.9Gaming
and Liquor Administration Act 2007 No
91
Section 3
Definitions
Omit “Local Area Commander” from
paragraph (f) of the definition of key
official in section 3 (1).
Insert instead “Police Area Commander or
Police District Commander”.
Explanatory
note
The proposed amendment updates a reference to a
police commander as a consequence of changes to the NSW Police
Force.
2.10Law
Enforcement (Powers and Responsibilities) Act 2002 No
103
[1]Section 3
Interpretation
Omit paragraph (a) of the definition of senior
police officer in section 3 (1).
Insert instead:
(a)
a Police Area Commander, or
(a1)
a Police District Commander,
or
[2]Sections 45C (2), 212 (1), 213
(1) and 214 (2)
Omit “Local Area Commander of Police”
wherever occurring.
Insert instead “Police Area Commander or
Police District Commander”.
[3]Section 212
(1)
Insert “or district” after
“area”.
[4]Section 212
(4)
Omit “Local Area
Commander”.
Insert instead “Police Area Commander or
Police District Commander”.
Explanatory
note
Items [1], [2] and [4] of the proposed amendments
update references to a police commander as a consequence of changes to the NSW
Police Force. Item [3] is a consequential amendment.
2.11Law Enforcement (Powers and Responsibilities) Regulation
2016
Schedule 1
Forms
Omit “to apply to an authorised
officer” from Form 26.
Insert instead “to apply to a
Magistrate”.
Explanatory
note
The proposed amendment updates a form as a
consequence of an amendment to section 94A of the Law
Enforcement (Powers and Responsibilities) Act 2002 in
Schedule 1 to the proposed Act, which allows an occupier of premises in
respect of which a crime scene warrant is issued to apply to a Magistrate (and
no longer to a registrar of the Local Court) for a review of the
warrant.
2.12Local
Government Act 1993 No 30
[1]Section 632A Confiscation of
alcohol in certain public and other places
Omit “Local Area Commander of Police”
from section 632A (8).
Insert instead “Police Area Commander or
Police District Commander”.
[2]Section 632A
(8)
Insert “or district” after “for
the area”.
Explanatory
note—
Item [1] of the proposed amendments updates a
reference to a police commander as a consequence of changes to the NSW Police
Force. Item [2] is a consequential amendment.
2.13Mental Health (Forensic Provisions) Regulation
2017
[1]Clause 14 Transport of
defendants in Local Court proceedings
Omit clause 14 (1) (b).
[2]Clause 14
(2)
Omit the subclause.
Explanatory
note
Items [1] and [2] of the proposed amendments omit
redundant provisions as a consequence of amendments to the Mental Health (Forensic Provisions) Act
1990 in Schedule 1 to the proposed Act, which provide for
the functions of correctional officers and juvenile justice officers in
relation to a defendant who has been ordered to be detained and taken to a
mental health facility for a mental health assessment.
Historical
notes
Table of amending
instruments
Justice
Legislation Amendment Act (No 2) 2018 No 29. Assented to
21.6.2018. Date of commencement (except Sch 1.10 [14], 1.14, 1.16, 1.17
[1]–[4] and [8], 1.18 [1]–[4], 1.19 and 1.20), assent, sec 2 (1);
date of commencement of Sch 1.10 [14], 1.14, 1.16, 1.17 [1]–[4] and [8],
1.18 [1]–[4], 1.19 and 1.20: not in force.