2014
2014
2014-10-24
act
government
publicspecial
act.reprint
allinforce
2014-09-11
2014-09-11
0
2014-10-24
act-1987-015
2014
none
act-2014-059
c4c70549-ea69-4f10-88e6-d64e6be6d568
1e11518c-9e0f-45a2-8946-5bafaca3c095
Repeal:
The Act was repealed by sec 30C of the Interpretation Act 1987 No 15 with
effect from 24.10.2014.
An Act to make miscellaneous amendments to
various Acts with respect to criminal offences and procedure; and for other
purposes.
1Name of
Act
This Act is the Crimes
Legislation Amendment Act 2014.
2Commencement
This Act commences on the date of assent to this
Act.
3Explanatory
notes
The matter appearing under the heading
“Explanatory note” in Schedule 1 does not form part of this
Act.
Schedule 1Amendment of
legislation
1.1Crimes
Act 1900 No 40
[1]Section 61HA Consent in
relation to sexual assault offences
Insert “, or attempts to commit the
offences,” after “the offences” in section 61HA
(1).
[2]Section 61HA (5)
(c)
Omit “medical”. Insert instead
“health”.
[3]Section 93FB Possession of
dangerous articles other than firearms
Insert at the end of section 93FB (1) (c):
or
(d)
a distress signal, or distress flare, that
operates by emitting a bright light,
Explanatory
note
Item [1] applies the statutory definition of
consent to attempts to commit sexual
assault offences.
Item [2] negates consent to sexual intercourse in
circumstances where consent has been given under a mistaken belief that the
sexual intercourse is for health purposes. This expands the circumstances in
section 61HA (5) (c) in which consent is negated, which are currently limited
to medical or hygienic purposes.
Item [3] makes it an offence to possess a
distress signal, or distress flare, that operates by emitting a bright light
in a public place without a reasonable excuse.
1.2Crimes
(Domestic and Personal Violence) Act 2007 No
80
Section 50 Commencement of
proceedings by application notice
Insert at the end of the section:
(2)
The regulations may make provision for the form
of an application notice for an apprehended personal violence order under this
Division (a personal
violence application notice) or for the information to be
included in a personal violence application notice.
(3)
Without limiting subsection (2), the regulations
may require inclusion of the following information in a personal violence
application notice:
(a)
whether there is an existing commercial
relationship between the applicant and the defendant,
(b)
whether there is an outstanding debt owed by the
defendant to the applicant or by the applicant to the
defendant,
(c)
whether there have been previous civil or
criminal proceedings between the applicant and the
defendant,
(d)
that it is an offence under the Act to make a
statement in the application that the applicant knows is false or misleading
in a material particular.
Explanatory
note
The proposed amendment to the Crimes (Domestic and Personal Violence) Act
2007 provides a regulation-making power to prescribe the
form of the application notice to be issued and filed in respect of an
application for an apprehended personal violence order, including the power to
require certain information to be disclosed in the
application.
1.3Crimes
(Forensic Procedures) Act 2000 No 59
Schedule 2 Savings,
transitional and other provisions
Insert after Part 6:
Part 7Crimes
Legislation Amendment Act 2014
15Validation of certain forensic
procedures
(1)
A police officer who had completed a training
course in carrying out forensic procedures conducted by the NSW Police Force
before carrying out a forensic procedure is taken to have been appropriately
qualified to carry out the forensic procedure.
(2)
This clause applies only to forensic procedures
carried out before 24 December 2013.
Explanatory
note
The proposed amendment to the Crimes (Forensic Procedures) Act 2000
gives retrospective authorisation to certain forensic procedures that were
carried out before 24 December 2013. A police officer who carried out such a
forensic procedure who had, before carrying out the procedure, completed a
forensic procedures training course conducted by the NSW Police Force is taken
to have been appropriately qualified to carry out that
procedure.
1.4Crimes
(Sentencing Procedure) Act 1999 No
92
[1]Section 53A Aggregate
sentences of imprisonment
Insert “written” before
“record” in section 53A (2).
[2]Section 54B Consideration of
standard non-parole period in sentencing
Insert “and make a written record of”
after “indicate” in section 54B (4).
Explanatory
note
The proposed amendments to the Crimes (Sentencing Procedure) Act 1999
require a court that imposes an aggregate sentence when sentencing for two or
more offences to make a written record of the sentence that would have been
imposed, and the non-parole period that would have been set for any offence to
which a standard non-parole period applied, for each offence had it imposed
separate sentences.
1.5Criminal Appeal
Rules
Rule 86 Application for
guideline judgment
Omit “section 174 of the Criminal Procedure Act 1986” from
rule 86 (1).
Insert instead “section 37 of the Crimes (Sentencing Procedure) Act
1999”.
Explanatory
note
The proposed amendment to the Criminal Appeal Rules updates a
cross-reference to the section and Act that deals with guideline judgments on
the application of the Attorney General.
1.6Criminal Procedure Act 1986 No
209
[1]Section 190 Time for
hearing
Insert “or at any subsequent mention of the
proceedings” after “date” in section 190
(3).
[2]Section 190
(3)
Omit “the matter on that
day”.
Insert instead “and determine the matter on
the first or a subsequent day on which the matter is listed for
mention”.
[3]Section 190
(4)
Insert after section 190 (3):
(4)
The court may not proceed to hear and determine
the matter unless it is satisfied that the accused person had reasonable
notice of the first return date or the mention date.
[4]Section 282 Scientific
examinations
Omit section 282 (3).
Explanatory
note
Items [1]–[3] clarify that the Local Court
can hear and finally determine a matter in an accused person’s absence
on the first return date or on a subsequent day when the matter is listed for
mention or hearing if satisfied that the accused person had reasonable notice
of the first return date or mention date.
Item [4] removes the requirement that a court
must obtain the consent of an accused person to the summary disposal of
proceedings if a scientific examination certificate is tendered by the
prosecution in the proceedings.
1.7Drug
Misuse and Trafficking Act 1985 No
226
[1]Section 3
Definitions
Insert in alphabetical order in section 3
(1):
Schedule
9 substance means a Schedule 9 substance within the meaning
of the Poisons and Therapeutic Goods Act
1966.
[2]Section
18B
Insert after section 18A:
18BManufacture, production,
possession and supply of certain Schedule 9 substances
(1)
A person who manufactures or produces, or who
knowingly takes part in the manufacture or production of, a Schedule 9
substance (not being a prohibited drug within the meaning of this Act) is
guilty of an offence.
(2)
A person who supplies, or who knowingly takes
part in the supply of, a Schedule 9 substance (not being a prohibited drug
within the meaning of this Act) is guilty of an offence.
(3)
A person who has in his or her possession a
Schedule 9 substance (not being a prohibited drug within the meaning of this
Act) is guilty of an offence.
Maximum penalty (subsection (3)): 20 penalty
units or imprisonment for 12 months, or both.
(4)
Nothing in this section renders unlawful the
manufacture, production, possession or supply of a Schedule 9 substance (not
being a prohibited drug) by:
(a)
a person licensed or authorised to do so under
the Poisons and Therapeutic Goods Act 1966,
or
(b)
a person in accordance with an authorisation
given by the Secretary of the Ministry of Health under section 17D of that
Act,
or renders unlawful the taking part by any other person
in the manufacture, production or supply of such a substance by a person to
whom paragraph (a) or (b) applies or the possession of the substance by the
other person for those purposes.
[3]Section 21
Penalties
Insert “, except as otherwise expressly
provided by this Division” after
“both”.
[4]Section 25B Manufacture,
production, possession and supply of certain Schedule 9
substances
Omit the section.
[5]Section 40 Effect of certain
representations
Insert after section 40 (1):
(1A)
A substance (not being a prohibited drug) which,
for the purpose of its being supplied, is represented (whether verbally, in
writing or by conduct) as being a Schedule 9 substance or a specified Schedule
9 substance is, for the purposes of this Act and the regulations, taken to be
a Schedule 9 substance or the specified Schedule 9 substance, as the case
requires.
[6]Section
46
Insert after section 45:
46Transitional
provision—repeal of section 25B and re-enactment as summary
offence
(1)
An offence under section 25B, and any related
offence, is taken to be, and to always have been, an offence that is required
to be prosecuted summarily before the Local Court.
(2)
Subsection (1) does not apply to an offence if an
indictment for the offence was presented or filed before the commencement of
this section.
(3)
If an indictment for an offence under section
25B, or any related offence, was presented or filed before the commencement of
this section and proceedings on the indictment have not commenced, the court
may remit the matter to the Local Court to be disposed of summarily if it
considers it is in the interests of justice to do so.
(4)
This section does not affect the validity of
anything done or omitted before the commencement of this section in connection
with proceedings for an offence that, but for subsection (1), would have been
validly done or omitted.
(5)
Despite section 179 of the Criminal Procedure Act 1986, proceedings
for an offence to which subsection (1) applies may be commenced not later than
6 months after the commencement of this section.
(6)
A reference to section 25B is a reference to
section 25B, as in force before its repeal by the Crimes
Legislation Amendment Act 2014.
(7)
In this section:
related
offence means:
(a)
an offence under section 26 of conspiring to
commit an offence under section 25B, or
(b)
an offence under section 27 of aiding, abetting,
counselling, procuring, soliciting or inciting the commission of an offence
against section 25B, or
(c)
an offence under section 28 of conspiring to
commit an offence under a provision of a law that corresponds to section 25B,
or
(d)
an offence under section 28 of aiding, abetting,
counselling, procuring, soliciting or inciting the commission of an offence
under a provision of a law that corresponds to section 25B,
or
(e)
an offence under section 43B that is committed if
a corporation commits a corporate offence and the corporate offence is an
offence under section 25B.
Explanatory
note
The proposed amendments to the Drug Misuse and Trafficking Act 1985 in
items [1]–[4] and [6] make offences involving the manufacture,
production, possession or supply of substances listed in Schedule 9 of the
Poisons Standard (within the meaning of Part 6-3 of the Therapeutic Goods Act
1989 of the Commonwealth) (including offences that have
already been committed), summary offences. If an indictment for such an
offence, or any related offence, has already been presented or filed but
proceedings on the indictment have not commenced, the court may remit the
matter to the Local Court to be disposed of summarily if it considers it is in
the interests of justice to do so.
Item [5] provides that a substance that is
represented as being a Schedule 9 substance is taken to be a Schedule 9
substance.
1.8Graffiti Control Act 2008 No
100
Section
20
Omit the section. Insert instead:
20Proceedings for
offences
Proceedings for an offence under this Act:
(a)
may be dealt with summarily before the Local
Court, and
(b)
must be commenced not later than 2 years from
when the offence is alleged to have been committed.
Explanatory
note
The proposed amendment to the Graffiti Control Act 2008 inserts a
2-year limitation period for commencing proceedings for offences under that
Act, displacing the 6-month limitation period for commencing proceedings for
summary offences imposed by section 179 (1) of the Criminal Procedure Act
1986.
1.9Inclosed Lands Protection Act 1901 No
33
Section
4AA
Insert after section 4:
4AAUnlawful re-entry on inclosed
lands
(1)
A person who, without reasonable excuse,
knowingly enters an event venue during an organised event in contravention of
a re-entry prohibition given to the person is guilty of an
offence.
Maximum penalty: 10 penalty
units.
(2)
A re-entry
prohibition is a direction given by a responsible authority
for an organised event, after a person has been directed to leave the
organised event, that directs the person:
(a)
not to re-enter the event venue during the
organised event, or
(b)
not to enter any specified event venue during an
organised event for which the responsible authority is the responsible
authority,
or both.
(3)
A re-entry prohibition may be given orally in
person or in writing.
(4)
The responsible authority must, at the time of
giving the re-entry prohibition:
(a)
specify the event venue or venues, and organised
event or events, to which the re-entry prohibition applies,
and
(b)
specify the duration of the re-entry prohibition,
and
(c)
state the reason why the re-entry prohibition is
being given, and
(d)
warn the person subject to the re-entry
prohibition that it is an offence to contravene the re-entry
prohibition.
(5)
Proof of reasonable excuse under this section
lies on the person charged with the offence.
(6)
If a person who enters an event venue in
contravention of a re-entry prohibition is also prohibited or banned from
entering the event venue under another Act or law, the person cannot be found
guilty of both an offence under this Act and an offence under the other Act or
law in respect of the same conduct.
(7)
In this section:
event
organiser in relation to an organised event means the person
in charge or apparently in charge of the organised event and who has the power
to admit persons to or exclude persons from attending the organised
event.
event
venue means that part of inclosed lands used for an
organised event to which right of entry is conferred by a ticket, membership
or similar arrangement.
organised
event means:
(a)
an organised sporting event, and includes any
performance, ceremony or formalities conducted in conjunction with the event,
or
(b)
an organised public exhibition, fair, convention,
performance, ceremony, festival or similar event, or
(c)
an event of a kind prescribed by the
regulations.
responsible authority for an
organised event means:
(a)
the owner, occupier or person apparently in
charge of the event venue used or to be used for the organised event,
or
(b)
the event organiser.
Explanatory
note
The proposed amendment to the Inclosed Lands Protection Act 1901
creates a new offence of entering inclosed lands in contravention of a
re-entry prohibition. A re-entry
prohibition is a direction by the responsible authority for
an organised event, after a person has been directed to leave the organised
event, that a person must not enter an event venue or venues during an
organised event. The re-entry prohibition can apply just to the event venue
and organised event the person was directed to leave or, instead or as well,
to any other event venue or organised event for which the responsible
authority giving the re-entry prohibition is the responsible authority. The
proposed offence is intended to focus on event venues that are primarily or
exclusively sporting or entertainment venues. Although a re-entry prohibition
could apply to other venues that are not primarily or exclusively used for
sporting or entertainment events, application of the provision will be limited
to that part of such venue that is being used for a ticketed event and only
while the event is taking place, and not to the whole of the
venue.
1.10Telecommunications (Interception and Access) (New South
Wales) Act 1987 No 290
[1]Section 3
Definitions
Omit the definition of certifying officer from section 3
(1). Insert instead:
certifying officer, in relation to
an eligible authority, means:
(a)
in the case of the Police Force:
(i)
the Commissioner of Police,
or
(ii)
a Deputy Commissioner of Police,
or
(iii)
an officer whose rank is equivalent to that of
Assistant Commissioner of the Australian Federal Police,
or
(iv)
an officer who is authorised to be a certifying
officer of the Police Force under section 5AC (4) of the Commonwealth Act,
or
(b)
in the case of the New South Wales Crime
Commission:
(i)
an executive officer of that Commission,
or
(ii)
a member of the staff of that Commission who is
authorised to be a certifying officer of the Commission under section 5AC (5)
of the Commonwealth Act, or
(c)
in the case of the Independent Commission Against
Corruption:
(i)
the Commissioner of that Commission,
or
(ii)
an Assistant Commissioner of that Commission,
or
(iii)
an officer who is authorised to be a certifying
officer of that Commission under section 5AC (9A) of the Commonwealth Act,
or
(d)
in the case of the Police Integrity
Commission:
(i)
the Commissioner of that Commission,
or
(ii)
an Assistant Commissioner of that Commission,
or
(iii)
an officer who is authorised to be a certifying
officer of that Commission under section 5AC (8) of the Commonwealth Act,
or
(e)
in the case of the Police Royal
Commission—the Police Royal Commissioner.
[2]Section 3 (1), definition of
“chief officer”
Omit “Chairperson” from paragraph
(b). Insert instead “Commissioner”.
[3]Section 3 (1), definition of
“officer”
Omit “a member, or” from paragraph
(b). Insert instead “an executive officer,
or”.
Explanatory
note
Item [1] substitutes the definition of certifying officerto make it
consistent with the Telecommunications (Interception and Access) Act
1979 of the Commonwealth and items [2] and [3] update
certain references relating to the NSW Crime Commission.
1.11Terrorism (Police Powers) Act 2002 No
115
[1]Section 26ZI Monitoring
contact with family members, lawyers etc under sections 26ZE, 26ZG, 26ZGA and
26ZH
Omit section 26ZI (6) (c). Insert instead:
(c)
the information is protected information,
and
[2]Section 26ZI (7)
(a)
Omit “information communicated between the
detainee and the detainee’s lawyer for one of the purposes referred to
in section 26ZG”.
Insert instead “protected
information”.
[3]Section 26ZI (8) and
(9)
Insert after section 26ZI (7):
(8)
A person commits an offence if:
(a)
the person is a lawyer whose advice has been
sought under subsection (7) by a monitor, and
(b)
protected information is disclosed to the lawyer
by the monitor, and
(c)
the lawyer discloses that protected information
to another person.
Maximum penalty: Imprisonment for 5
years.
(9)
In this section:
protected
information means information communicated between a
detainee and the detainee’s lawyer for a purpose referred to in section
26ZG.
[4]Section 34 Proceedings for
offences
Insert “or (8)” after “26ZI
(6)”.
Explanatory
note
The proposed amendments to the Terrorism (Police Powers) Act 2002
prevent the disclosure of certain communications made between a detained
person and the detained person’s lawyer. A person who is detained under
a preventative detention order is entitled to consult a lawyer, but only in
relation to certain matters relating to that order. The communication that is
permitted is protected
information. To ensure that only protected information is
communicated between the detained person and the person’s lawyer, the
communication is monitored by a police officer. The police officer is not
permitted to disclose any protected information and commits an offence if he
or she does so. In order to determine whether information is protected
information (and to determine the police officer’s obligations in
relation to that information), the police officer is entitled to consult a
lawyer. A lawyer who discloses the protected information commits an offence
carrying a maximum penalty of 5 years imprisonment.
Historical
notes
Table of amending
instruments
Crimes
Legislation Amendment Act 2014 No 59. Assented to
23.10.2014. Date of commencement, assent, sec 2.