An Act to amend various Acts relating to courts and crimes and other related matters.
1 Name of Act
This Act is the Justice Legislation Amendment Act 2017.
2 Commencement
(1) This Act commences on the date of assent to this Act, except as provided by subsection (2).(2) Schedule 1.10 commences on a day or days to be appointed by proclamation.
Schedule 1 Amendment of Acts
[1] Section 16B Offences to which the show cause requirement applies
Omit section 16B (1) (d) (iii). Insert instead:(iii) a serious indictable offence under the Firearms Act 1996 that involves acquiring, supplying, manufacturing or giving possession of a pistol or prohibited firearm or a firearm part that relates solely to a prohibited firearm,
[2] Section 16B (3)
Omit “firearm, prohibited firearm and pistol, and use, acquire, supply or possession of a firearm, have the same meanings as in the Firearms Act 1996”.Insert instead “firearm, firearm part, prohibited firearm and pistol, and use, acquire, supply or possession of a firearm or firearm part, have the same meanings as in the Firearms Act 1996”.
Section 31 Hearing of charges in the Children’s Court
Insert after section 31 (5):(6) Notwithstanding subsection (1), when the Children’s Court commits to another court for trial or sentence a person who is charged with an indictable offence or a serious children’s indictable offence (the principal indictable offence):(a) the prosecutor must, if the person has been charged with any back up or related offence to the principal indictable offence, produce to the Children’s Court a certificate specifying the back up or related offence, and(b) the Children’s Court may transfer to the other court proceedings for any such back up or related offence.(7) If a back up or related offence is transferred to another court under subsection (6), the proceedings for such an offence are to be dealt with in accordance with sections 167–169 of the Criminal Procedure Act 1986. For that purpose, a reference in those sections to the Local Court is to be construed as a reference to the Children’s Court.(8) In this section:back up offence, in relation to a principal indictable offence, means an offence:(a) that is a summary offence or an indictable offence that is capable of being dealt with summarily by the Children’s Court, and(b) all the elements of which are elements that are necessary to constitute the principal indictable offence, and(c) that is to be prosecuted on the same facts as the principal indictable offence., in relation to a principal indictable offence, means an offence:(a) that is a summary offence or an indictable offence that is capable of being dealt with summarily by the Children’s Court, andbut does not include a back up offence.(b) that arises from substantially the same circumstances as those from which the principal indictable offence has arisen,
[1] Section 4 Definitions
Omit “the day on which the person was convicted of the offence” from paragraph (a) of the definition of relevant period in section 4 (1).Insert instead “the day on which the person was sentenced for the offence”.
[2] Section 4 (10)
Insert after section 4 (9):(10) Notes included in this Act do not form part of this Act.
[3] Section 25 Assessment of pecuniary penalty
Insert at the end of section 25 (5):Note—For example, in the case of an illegal activity involving the trafficking of drugs, in determining the value of benefits derived by the defendant from the trafficking of drugs there is to be no reduction on account of any expenditure by the defendant in acquiring the drugs.
[4] Sections 26 (2) and 83 (1) (d)
Omit “Service and Execution of Process Act 1901” wherever occurring.Insert instead “Service and Execution of Process Act 1992”.
[5] Section 30 Assessment of proceeds of drug trafficking
Insert after section 30 (6):Note—For example, in the case of an illegal activity involving the trafficking of drugs, in determining the value of the proceeds derived by the defendant from the trafficking of drugs there is to be no reduction on account of any expenditure by the defendant in acquiring the drugs.
[6] Schedule 1 Savings, transitional and other provisions
Insert at the end of the Schedule, with appropriate Part and clause numbering:Part Provision consequent on the enactment of Justice Legislation Amendment Act 2017Application of amendmentSection 4, as amended by the Justice Legislation Amendment Act 2017, extends to a person:(a) who has been convicted of, but not sentenced for, a serious offence before the commencement of that amendment, or(b) who was sentenced for a serious offence within the period of 6 months before the commencement of that amendment.
Section 8 Possession of restricted items in court premises
Omit paragraph (b) of the maximum penalty to section 8 (1). Insert instead:(b) in the case of a knife that is not a prohibited weapon within the meaning of the Weapons Prohibition Act 1998—20 penalty units or imprisonment for 2 years (or both).
[1] Section 47 Using etc explosive substance or corrosive fluid etc
Insert “(including petrol)” after “any destructive or explosive substance”.
[2] Section 193E Alternative verdicts
Insert after section 193E (2A):(2B) If on the trial of a person for an offence under section 193C (1), the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 193C (2), it may find the accused not guilty of the offence charged but guilty of the other offence, and the accused is liable to punishment accordingly.
Section 30A Reading out victim impact statements in court
Insert after section 30A (3):(3A) If the proceedings are for a prescribed sexual offence, the part of the proceedings in which the statement is read out is to be held in camera unless:(a) the court directs (subject to subsection (3)), at the request of a party to the proceedings, that the proceedings are to be held in open court, and(b) the court is satisfied that:(i) special reasons in the interests of justice require the part of the proceedings to be held in open court, or(ii) the victim to whom the statement relates consents to the statement being read out in open court.(3B) The principle that proceedings for an offence should generally be open or public in nature, or that justice should be seen to be done, does not of itself constitute special reasons in the interests of justice requiring the part of the proceedings to be held in open court.(3C) If the proceedings are for a prescribed sexual offence, the victim to whom the statement relates is entitled to have a person or persons chosen by the victim to be present near the victim, and within the victim’s sight, when the statement is read out, whether the statement is read in open court, in camera or in accordance with any closed-circuit television arrangements. Any such person or persons chosen by the victim may include a parent, guardian, relative, friend or support person of the victim or a person assisting the victim in a professional capacity.
Section 5AA Appeal in criminal cases dealt with by courts in their summary jurisdictions
Omit section 5AA (4). Insert instead:(4) The Court of Criminal Appeal in proceedings before it on an appeal under this section may:(a) confirm the determination made by the Supreme Court in its summary jurisdiction, or(b) order that the determination made by the Supreme Court in its summary jurisdiction be vacated and:(i) make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal, or(ii) order a new trial in such manner as the Court of Criminal Appeal thinks fit.
[1] Section 6 Meaning of “serious crime related activity”
Insert after paragraph (a) of the definition of drug trafficking offence in section 6 (3):(a1) section 23A (Offences with respect to enhanced indoor cultivation of prohibited plants in presence of children),
[2] Section 10B Contents and effect of restraining orders
Insert “(or during the time that it is in force)” after “a restraining order” in section 10B (2).
[1] Schedule 2 Savings, transitional and other provisions
Omit “evidence is given” from clause 84 (1).Insert instead “accused person was committed for trial or sentence”.
[2] Schedule 2, clause 84 (2)
Omit “order is made”. Insert instead “accused person was committed for trial or sentence”.
[1] Section 32 Persons suffering from mental illness or condition or cognitive impairment
Omit section 32 (1) (a) (i). Insert instead:(i) cognitively impaired, or
[2] Section 32 (3) (b)
Omit the paragraph. Insert instead:(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate:(i) for assessment or treatment (or both) of the defendant’s mental condition or cognitive impairment, or(ii) to enable the provision of support in relation to the defendant’s cognitive impairment, or
[3] Section 32 (6)
Insert after section 32 (5):(6) In this section:cognitive impairment means ongoing impairment of a person’s comprehension, reasoning, adaptive functioning, judgment, learning or memory that materially affects the person’s ability to function in daily life and is the result of damage to, or dysfunction, developmental delay or deterioration of, the person’s brain or mind, and includes (without limitation) any of the following:(a) intellectual disability,(b) borderline intellectual functioning,(c) dementia,(d) acquired brain injury,(e) drug or alcohol related brain damage, including foetal alcohol spectrum disorder,(f) autism spectrum disorder.
[1] Section 51 Particulars of warrants sought under Part 3 to be notified to Attorney General
Omit section 51 (3).
[2] Section 54
Omit the section. Insert instead:54 Service of documents(1) A document that is authorised or required by this Act or the regulations to be served on any person may be served by any of the following methods:(a) in the case of an individual—by personal delivery to the person,(b) by post to the address specified by the person for the service of documents of that kind,(c) in the case of an individual who has not specified such an address—by post to the residential or business address of the person last known to the person serving the document,(d) in the case of a corporation—by post to the registered office or any other office of the corporation or by leaving it at any such office with a person apparently over the age of 16 years,(e) by fax to a fax number specified by the person for the service of documents of that kind,(f) by email to an email address specified by the person for the service of documents of that kind,(g) by any other method authorised by the regulations for the service of documents of that kind.(2) Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on a person by any other method.(3) In this section, serve includes give or send.
[1] Section 17 Power to search persons
Omit the note to section 17 (2).
[2] Section 26V Power to search persons for seizable items
Omit the note to section 26V (5).
[3] Schedule 1 Conduct of personal searches
Omit “(Section 17)”. Insert instead “(Sections 17 and 26V)”.
[4] Schedule 1, clause 2
Omit the definitions of frisk search and ordinary search.
[5] Schedule 1, clause 3
Omit the clause. Insert instead:3 Searches generallyA police officer who is authorised to search a person may, in conducting the search:(a) quickly run his or her hands over the person’s outer clothing, and(b) require the person to remove his or her coat or jacket or similar article of clothing and any gloves, shoes, socks and hat (but not, except in the case of a strip search, all of the person’s clothes), and(c) examine anything in the possession of the person, and(d) pass an electronic metal detection device over or in close proximity to the person’s outer clothing or anything removed from the person, and(e) do any other thing authorised by this Act for the purposes of the search.