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Criminal Organisations Control and Other Acts Amendment Act 2014

No. 55 of 2014

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purposes 12 Commencement 4

PART 2—CONFISCATION 6

Division 1—Amendments relating to civil forfeiture 6

3 Definitions 64 Property may be subject to both civil forfeiture restraining order

and restraining order 65 Application for civil forfeiture restraining order 66 Determination of application for civil forfeiture restraining order 77 Court directions to provide information 78 Application for exclusion from civil forfeiture restraining order 79 Determination of application for exclusion from civil forfeiture

restraining order 810 Priority given to payment of restitution or compensation 911 Application for civil forfeiture order 912 Application for exclusion from civil forfeiture order 913 Determination of application for exclusion from civil forfeiture

order 10

Division 2—Amendments relating to hardship 11

14 Determination of application for forfeiture order 1115 Determination of application for civil forfeiture order 1116 Relief from hardship 11

Division 3—Amendments relating to serious drug offender regime 12

Subdivision 1—Amendment of Confiscation Act 1997 12

17 Definitions 1218 Purposes for which a restraining order may be made 1419 New section 15A inserted 14

15A Property may be subject to both restraining order and civil forfeiture restraining order 14

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20 Application for restraining order 1521 Procedure on application 1622 Determination of application 1623 Court directions to provide information 1724 Application for exclusion from restraining order 1725 New section 22A inserted 18

22A Determination of exclusion application—serious drug offence restraining order 18

26 New section 24 inserted 1924 Protected property not to be included in serious drug

offence restraining order 1927 Duration and setting aside of restraining order 2028 Application for freezing order 2229 New Division 4 of Part 3 inserted 23

Division 4—Automatic forfeiture of property of serious drug ffender 23

36GA Automatic forfeiture of restrained property on declaration that person is serious drug offender 23

36GB Declaration that property has been forfeited 2530 Property may be subject to both civil forfeiture restraining order

and restraining order 2531 Effect of forfeiture 2632 Disposal of forfeited property 2633 New section 45A inserted 27

45A Relief from automatic forfeiture of property of serious drug offender 27

34 Discharge of automatic forfeiture in respect of an interest 2935 New sections 53 and 54 inserted 30

53 Application for exclusion from automatic forfeiture of property of serious drug offender 30

54 Determination of application from exclusion from automatic forfeiture of property of serious drug offender 32

36 Application to the Minister for return of property or payment of value 33

37 Liability under forfeiture or pecuniary penalty order to be satisfied by trustee 33

38 Order for examination 3339 Application for production order 3440 Application for search warrant for property-tracking documents 3441 Application for monitoring order 3442 Issuing information notices—authorised member of police force 3543 Interstate orders and search warrants 3544 Crime Prevention and Victims' Aid Fund 3545 Conversion costs 3546 Appeals 35

47 New section 188 inserted 36188 Transitional—Criminal Organisations Control and

Other Acts Amendment Act 2014 36

Subdivision 2—Amendment of Sentencing Act 1991 37

48 Sentencing guidelines 3749 New Division 5 of Part 4 inserted 37

Division 5—Serious drug offender 37

89DI Declaration by court that person is serious drug offender 37

Subdivision 3—Amendment of Drugs, Poisons and Controlled Substances Act 1981 38

50 Trafficking in a drug or drugs of dependence—large commercial quantity 38

51 Cultivation of narcotic plants—large commercial quantity 3852 Conspiring 3853 Aiding and abetting etc. 39

Division 4—Amendments relating to management of restrained property 39

54 Restraining orders 3955 Further orders 4056 Civil forfeiture restraining orders 4057 Further orders 4158 Liability under forfeiture or pecuniary penalty order to be

satisfied by trustee 4159 Provisions concerning trustee 41

PART 3—CRIMINAL ORGANISATIONS CONTROL 43

Division 1—Amendment of Criminal Organisations Control Act 2012 43

60 Definitions 4361 Section 4 repealed 4462 Meaning of prospective member 4463 Form and content of application 4464 Objection to application for declaration 4565 Court may make declarations 4566 New section 21 substituted 48

21 Objections to be disregarded if respondent consents to declaration 48

67 Form of declaration 4868 Duration of declaration 4869 Application for revocation of declaration 48

70 Section 29 substituted 4929 Determination of application for revocation of

declaration in respect of organisation 4971 New section 29A inserted 51

29A Determination of application for revocation of declaration in respect of individual 51

72 When revocation of declaration takes effect 5173 Court may make control order 5274 Content of control orders—declared organisations 5575 Winding up of incorporated associations that are prohibited

from operating under a control order 5676 New section 51A inserted 56

51A Objections to be disregarded if respondent consents to control order 56

77 Form of control order 5778 Notice of making of control order that applies to a declared

organisation 5779 Application for variation or revocation of control order or

ancillary order 5880 Section 58 substituted 59

58 Determination of application for variation or revocation—control order 59

81 New section 58A inserted 6058A Determination of application for variation or revocation

—ancillary order 6082 Effect of registration of corresponding declaration 6183 Information to be kept on register 6184 Annual report 6185 New sections 135A, 135B and 135C inserted 61

135A Consent 61135B Costs 63135C Adjournment before costs order made 63

86 Schedule amended 64

Division 2—Amendment of Firearms Act 1996 65

87 Definitions 6588 General discretion of Chief Commissioner to refuse a longarm

or handgun licence 6689 General discretion of Chief Commissioner to refuse a junior

licence 6690 General discretion of Chief Commissioner to refuse a firearms

collectors licence 6691 General discretion of Chief Commissioner to refuse a firearms

heirlooms licence 6792 General discretion of Chief Commissioner to refuse a firearms

ammunition collectors licence 67

93 Review of decision not to issue a licence 6794 General discretion of Chief Commissioner to refuse to renew a

licence or to alter or vary the conditions of a licence 6795 Power of Chief Commissioner to cancel licence under this Part 6896 Provisional general category handgun licences 6897 General discretion of Chief Commissioner to refuse a dealers

licence 6898 General discretion of Chief Commissioner to refuse to renew a

dealers licence 6999 Power of Chief Commissioner to cancel a dealers licence 69100 General discretion of Chief Commissioner to refuse to issue a

permit to acquire 69101 Permit to store handguns 70102 Power of delegation 70

Division 3—Amendment of Fortification Removal Act 2013 70

103 Definitions 70104 Schedule amended 70

Division 4—Amendment of Major Crime (Investigative Powers) Act 2004 71

105 Definitions 71106 New section 3AA inserted 71

3AA Meaning of organised crime offence 71107 Application for order 72

PART 4—CRIMINAL PROCEDURE 73

Division 1—Amendment of Criminal Procedure Act 2009 relating to committal proceedings 73

108 Contents of case direction notice 73109 Leave required to cross-examine other witnesses 74110 Cross-examination of witnesses 75111 New section 132A inserted 75

132A Leave to cross-examine witness on different issue 75

Division 2—Other amendments to Criminal Procedure Act 2009 76

112 Definitions 76113 Summons for summary offence may be served by ordinary

service 77114 New section 17A inserted 77

17A Service of summons for traffic camera offence 77115 When full brief must be served 78116 Documents to be provided by police at first mention hearing 78117 Ordinary service 78118 New section 444 inserted 78

444 Transitional provision—Criminal Organisations Control and Other Acts Amendment Act 2014 78

PART 5—MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED 81

Division 1—Amendment of Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 81

119 Definitions 81120 Application to courts and proceedings 82121 Application to Magistrates' Court 82122 New section 5A inserted 83

5A Application to Children's Court 83123 Orders pending investigation into fitness 83124 Amendment of section heading 84125 New Part 5A inserted 84

PART 5A—PROCEEDINGS IN THE CHILDREN'S COURT AND APPEALS FROM THOSE PROCEEDINGS 84

Division 1—General 84

38G Application of Part 8438H Definitions 8538I Constitution of Children's Court 8638J Remand in custody 87

Division 2—Unfitness to stand trial 87

38K When is a child unfit to stand trial? 8738L Presumptions, standard of proof etc. 8838M Committals 8838N Reservation of question of fitness to stand trial by

Children's Court 8938O Time limit for investigation into fitness 9038P Children's Court may make orders pending

investigation into fitness 9038Q Procedure on investigation 9138R What happens after an investigation? 9238S Abridgment of adjournment 9338T What happens at the end of an adjournment? 9438U Appeal in relation to fitness to stand trial 94

Division 3—Special hearings 96

38V Purpose of special hearings 9638W Procedure at special hearings 9638X Findings at special hearings 9738Y Effect of findings 98

38Z Court may make orders pending making of supervision order 99

Division 4—Defence of mental impairment 99

38ZA Defence of mental impairment 9938ZB Presumptions, standard of proof etc. 10038ZC When may the question of mental impairment be

raised? 10138ZD Effect of finding of not guilty because of mental

impairment 10138ZE Appeal against mental impairment finding 10238ZF Appeal against unconditional release 104

Division 5—Disposition of children declared to be liable to supervision 106

38ZG Application of Division 10638ZH Supervision orders 10638ZI How long does a supervision order last? 10838ZJ Appeal against supervision order 10838ZK Non-compliance with non-custodial supervision order 11138ZL Emergency power of apprehension 11238ZM Warrant to arrest child breaching non-custodial

supervision order who leaves Victoria 11438ZN Application for variation or revocation of supervision

order 11538ZO Variation of custodial supervision orders on

application or review 11538ZP Variation or revocation of non-custodial supervision

orders on application or review 11638ZQ Transfer of supervision order for review by County

Court 117

Division 6—Reports as to supervision and victim impact statements 117

38ZR Court must order report as to supervision 11738ZS Who prepares a report? 11838ZT Contents of report 11838ZU Report to be filed with court 11938ZV Access to reports 11938ZW Victim impact statements 121

126 Principle to be applied 121127 Matters to which the court is to have regard 121128 Certificate of available services 121129 Inadmissibility of evidence in other proceedings 122130 Extension of time for filing notice of appeal 123

131 Transitional provision inserted 12315 Transitional provision—Criminal Organisations

Control and Other Acts Amendment Act 2014 123

Division 2—Amendment of Children, Youth and Families Act 2005 124

132 Release on parole from youth residential centre 124133 Release on parole from youth justice centre 124134 Jurisdiction of Youth Residential Board 125135 Jurisdiction of Youth Parole Board 125136 Governor in Council may establish corrective services 125137 Children in detention 125138 Proceedings in which child is required to be legally

represented 126139 Duties of youth justice officers 126

Division 3—Consequential and other amendments 126

140 Accident Towing Services Act 2007 126141 Appeal Costs Act 1998 126142 Bus Safety Act 2009 127143 Coroners Act 2008 127144 Corrections Act 1986 127145 Criminal Organisations Control Act 2012 128146 Disability Act 2006 128147 Firearms Act 1996 128148 Juries Act 2000 128149 Legal Aid Act 1978 128150 Mental Health Act 2014 128151 Police Regulation Act 1958 129152 Sex Offenders Registration Act 2004 129153 Transport (Compliance and Miscellaneous) Act 1983 130154 Working with Children Act 2005 130155 Amendment consequential on Victoria Police Act 2013 131

PART 6—MAJOR CRIME INVESTIGATIVE POWERS 132

156 Purposes of Major Crime (Investigative Powers) Act 2004 132157 Definition 132158 Confidentiality of witness summons and orders 132159 When Chief Examiner may conduct an examination 133160 Preliminary requirements 133161 Failure of witnesses to attend and answer questions 134162 Privilege against self-incrimination abrogated 134163 Restriction on publication of evidence 135164 New sections 43A and 43B inserted 136

43A Release of restricted evidence to a person charged with an offence 136

43B Release of restricted evidence where person not yet charged 137

165 Warrant for arrest of witness 139166 Contempt of Chief Examiner—removal of sunset 139167 Delegation 140168 Amendment of Criminal Procedure Act 2009 140

PART 7—VARIATION OF ALCOHOL EXCLUSION ORDERS 141

169 Variation of alcohol exclusion orders 141170 New section 153 inserted 142

153 Transitional provision—Criminal Organisations Control and Other Acts Amendment Act 2014—alcohol exclusion orders 142

PART 8—MISCELLANEOUS AMENDMENTS 143

Division 1—Amendment of Criminal Procedure Act 2009 143

171 Schedule 3 amended 143

Division 2—Amendment of Evidence (Miscellaneous Provisions) Act 1958 143

172 List of persons who may witness statutory declarations 143173 Affidavits in Victoria how sworn and taken 144

Division 3—Amendment of Mental Health Act 2014 144

174 Definitions 144175 Apprehension of person by police officer or protective

services officer 145

Division 4—Amendment of Open Courts Act 2013 146

176 Notice of applications for suppression orders 146177 Magistrates' Court may make order prohibiting publication of

specified material 147

Division 5—Amendment of Personal Safety Intervention Orders Act 2010 147

178 New section 16A inserted 14716A Registrar must refuse to accept application 147

Division 6—Amendment of Summary Offences Act 1966 149

179 Requirement to give name and address 149

Division 7—Amendment of Victorian Institute of Forensic Medicine Act 1985 150

180 The Council 150181 Members of the Council 150

Division 8—Amendments relating to Victoria Police 151

182 Promotion of police officers and protective services officers 151183 Unauthorised manufacture etc of Victoria Police identification

or equipment 151184 Subject matter for regulations 151185 Transitional provisions 151186 Consequential amendment of Corrections Act 1986 152

PART 9—REPEAL OF AMENDING ACT 153

187 Repeal of amending Act 153═══════════════

ENDNOTES 154

Criminal Organisations Control and Other Acts Amendment Act 2014†

No. 55 of 2014

[Assented to 26 August 2014]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purposes

(1) The main purposes of Part 2 of this Act are to amend the Confiscation Act 1997—

(a) to modify the operation of the civil forfeiture regime to allow an application for a civil forfeiture restraining order to be made in relation to more than one Schedule 2 offence; and

Victoria

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(b) to modify the provisions relating to hardship so that a court may only take into account hardship that is undue hardship; and

(c) to introduce a regime for the automatic forfeiture of all property owned or controlled by a person convicted of a serious drug offence; and

(d) to permit the holders of prescribed positions within the Department of Justice to take control of restrained property and exercise the powers of a trustee in relation to that property.

(2) The main purposes of Part 3 of this Act are—

(a) to amend the Criminal Organisations Control Act 2012—

(i) to change the standard of proof that applies in relation to the making of declarations applying to individuals; and

(ii) to provide for the making of different kinds of declarations applying to organisations; and

(iii) to make further provision in relation to former members of declared organisations; and

(iv) to change the matters of which the Court must be satisfied in making control orders; and

(v) to provide for the making of declarations and control orders by consent; and

(vi) to provide for applicants, respondents and objectors to bear their own costs in proceedings under that Act; and

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(vii) to apply that Act in relation to a wider range of offences; and

(b) to amend the Firearms Act 1996 to change how that Act operates in relation to declared individuals and declared organisation members; and

(c) to amend the Fortification Removal Act 2013 to apply that Act in relation to a wider range of offences; and

(d) to amend the Major Crime (Investigative Powers) Act 2004 to change how that Act operates in relation to organised crime offences involving a declared individual or a declared organisation member.

(3) The main purpose of Part 4 of this Act is to amend the Criminal Procedure Act 2009 in relation to—

(a) the cross-examination of a witness at a committal hearing; and

(b) the service of documents relating to traffic camera offences.


(a) to amend the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and the Children, Youth and Families Act 2005—

(i) to enable the Children's Court to determine the issue of fitness to stand trial in relation to offences within the jurisdiction of the Children's Court; and

(ii) if the Children's Court finds that a child is unfit to stand trial and committed the offence charged, to enable the Children's Court to declare the child liable to supervision; and

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s. 1

(iii) after a finding of not guilty because of mental impairment for offences within the jurisdiction of the Children's Court, to enable the Children's Court to declare a child liable to supervision; and

(b) to amend the Working with Children Act 2005 to include in the definition of finding of guilt a finding of not guilty on account of insanity.


(a) to amend the Major Crime (Investigative Powers) Act 2004 to improve the operation of that Act; and

(b) to make a related amendment to the Criminal Procedure Act 2009.

(6) The main purpose of Part 7 of this Act is to amend the Sentencing Act 1991 in relation to alcohol exclusion orders.

(7) The main purpose of Part 8 of this Act is to make miscellaneous amendments to the Criminal Procedure Act 2009, the Evidence (Miscellaneous Provisions) Act 1958, the Mental Health Act 2014, the Open Courts Act 2013, the Personal Safety Intervention Orders Act 2010, the Summary Offences Act 1966, the Victorian Institute of Forensic Medicine Act 1985 and the Victoria Police Act 2013.

2 Commencement

(1) This Part, Part 2 (except Division 3), Division 4 of Part 5, section 154(2), Part 6 and Part 8 (except Division 5) come into operation on the day after the day on which this Act receives the Royal Assent.

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s. 2

(2) Section 155 comes into operation on the later of—

(a) the day on which section 125 comes into operation; or

(b) the day on which section 278 of the Victoria Police Act 2013 comes into operation.

(3) Subject to subsection (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(4) If a provision referred to in subsection (3) does not come into operation before 1 March 2015, it comes into operation on that day.

__________________

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s. 2

PART 2—CONFISCATION

Division 1—Amendments relating to civil forfeiture

3 Definitionss. 3

See:Act No.108/1997.Reprint No. 6as at1 April 2012and amendingAct Nos20/2012, 82/2012, 77/2013, 17/2014 and 37/2014.LawToday:www.legislation.vic.gov.au

In section 3(1) of the Confiscation Act 1997, in the definition of tainted property—

(a) omit ", in relation to an offence,";

(b) in paragraph (a)(i), (iii) and (iv), for "the Schedule 2 offence" substitute "one or more Schedule 2 offences";

(c) in paragraph (b), after "property that" insert ", in relation to an offence".

4 Property may be subject to both civil forfeiture restraining order and restraining order

In section 36J(2)(a) of the Confiscation Act 1997, for "the Schedule 2 offence" substitute "a Schedule 2 offence".

5 Application for civil forfeiture restraining order

(1) In section 36K(1) and (2)(b) of the Confiscation Act 1997 omit "in relation to a Schedule 2 offence".

Part 9—Repeal of Amending Act

Criminal Organisations Control and Other Acts Amendment Act 2014No. 55 of 2014

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(2) In section 36K(3) of the Confiscation Act 1997, after "the Schedule 2 offence" insert "or any one or more of the Schedule 2 offences".

(3) In section 36K(6) of the Confiscation Act 1997—

(a) in paragraph (a), after "offence" insert "or offences";

(b) in paragraph (b), after "offence" insert "or different Schedule 2 offences".

6 Determination of application for civil forfeiture restraining order

(1) In section 36M(a) of the Confiscation Act 1997 omit "in relation to a Schedule 2 offence".

(2) At the end of section 36M of the Confiscation Act 1997 insert—

"(2) To avoid doubt, if an application under section 36K for a civil forfeiture restraining order in respect of property is made in relation to more than one Schedule 2 offence, the court may be satisfied that the deponent of the affidavit reasonably suspects that the property is tainted property despite the deponent being unable to specify—

(a) in relation to which of the Schedule 2 offence or offences the property is tainted; or

(b) the extent to which the property is tainted in relation to each of the Schedule 2 offences.".

7 Court directions to provide information

In section 36S(2)(a) of the Confiscation Act 1997, for "the Schedule 2 offence" substitute "a Schedule 2 offence".

8 Application for exclusion from civil forfeiture restraining order

s. 6Part 9—Repeal of Amending Act


7

(1) In section 36U(7) of the Confiscation Act 1997—

(a) in paragraph (a) omit "in relation to a Schedule 2 offence";

(b) in paragraph (b), for "the offence or any other offence" substitute "an offence".






(b) in paragraph (b), for "the Schedule 2 offence or a related offence" substitute "a Schedule 2 offence".

9 Determination of application for exclusion from civil forfeiture restraining order

(1) In section 36V(1)(b) of the Confiscation Act 1997—

(a) for subparagraphs (i) and (ii) substitute—

"(i) the applicant was not, in any way, involved in the commission of any relevant Schedule 2 offence; and

(ii) where the applicant acquired the interest before the commission, or alleged commission, of the relevant Schedule 2 offences, the applicant did not know that the property—



8

(A) would be, or was intended to be, used in, or in connection with, the commission of any of those offences; or

(B) was likely to be, or intended to be, used in, or in connection with, the future commission of any of those offences; and";

(b) in subparagraph (iii), for "the Schedule 2 offence" substitute "the relevant Schedule 2 offences".

(2) After section 36V(2) of the Confiscation Act 1997 insert—

"(3) In this section—

relevant Schedule 2 offence means a Schedule 2 offence in relation to which the civil forfeiture restraining order was made.".

10 Priority given to payment of restitution or compensation

In section 36ZA(1) of the Confiscation Act 1997, for "the offence" substitute "an offence".

11 Application for civil forfeiture order

In section 37(7) of the Confiscation Act 1997, after "Schedule 2 offence" insert "or any one or more of the same Schedule 2 offences".

12 Application for exclusion from civil forfeiture order

(1) In section 40A(9) of the Confiscation Act 1997—





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(b) in paragraph (b) for "the Schedule 2 offence or a related offence" substitute "a Schedule 2 offence".

13 Determination of application for exclusion from civil forfeiture order

(1) In section 40B(1)(b) of the Confiscation Act 1997—

(a) for subparagraphs (i) and (ii) substitute—

"(i) the applicant was not, in any way, involved in the commission of any relevant Schedule 2 offence; and

(ii) where the applicant acquired the interest before the commission, or alleged commission, of the relevant Schedule 2 offences, the applicant did not know that the property—

(A) would be, or was intended to be, used in, or in connection with, the commission of any of those offences; or



10

(B) was likely to be, or intended to be, used in, or in connection with, the future commission of any of those offences; and";

(b) in subparagraph (iii), for "the Schedule 2 offence" substitute "the relevant Schedule 2 offences".

(2) After section 40B(2) of the Confiscation Act 1997 insert—

"(3) In this section—

relevant Schedule 2 offence means a Schedule 2 offence in relation to which the civil forfeiture restraining order was made.".

Division 2—Amendments relating to hardship

14 Determination of application for forfeiture order

(1) For section 33(5)(b) of the Confiscation Act 1997 substitute—

"(b) subject to subsection (5A), any undue hardship that may reasonably be likely to be caused to any person by the order; and".

(2) After section 33(5) of the Confiscation Act 1997 insert—

"(5A) For the purposes of subsection (5)(b), when having regard to any hardship caused to the person convicted of the offence in relation to which the forfeiture order is sought, the court must not take into account the impact on that person of the sentence given for that offence.".



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15 Determination of application for civil forfeiture order

In section 38(2) of the Confiscation Act 1997, for "hardship" substitute "undue hardship".

16 Relief from hardship

(1) Insert the following heading to section 45 of the Confiscation Act 1997—

"Relief from undue hardship".

(2) In section 45(1) of the Confiscation Act 1997, for "If a court is satisfied that hardship" substitute "Subject to subsection (1A), if a court is satisfied that undue hardship".

(3) In section 45(1)(a) of the Confiscation Act 1997, for "hardship" substitute "undue hardship".


"(1A) For the purposes of subsection (1), when determining whether undue hardship may be caused by a forfeiture order to the person convicted of the offence in relation to which the forfeiture order has been made, the court must not take into account the impact on that person of the sentence given for that offence.".

Division 3—Amendments relating to serious drug offender regime

Subdivision 1—Amendment of Confiscation Act 1997

17 Definitions

In section 3(1) of the Confiscation Act 1997—

(a) in the definition of automatic forfeiture, after paragraph (a) insert—

"(ab) forfeiture under section 36GA; or";



12

(b) in the definition of restraining order, after "section 18" insert ", including a serious drug offence restraining order";

(c) insert the following definitions—

"protected property has the meaning given by section 24(2);

serious drug offence means an offence against any of the following provisions of the Drugs, Poisons and Controlled Substances Act 1981 committed in the circumstances specified (if any)—

(a) section 71 (trafficking in a drug or drugs of dependence—large commercial quantity);

(b) section 72 (cultivation of narcotic plants—large commercial quantity);

(c) section 79(1) or 80(3)(a) (conspiracy)—where the conspiracy is to commit an offence specified in paragraph (a) or (b);

(d) section 80(1) or 80(3)(b) (aiding and abetting etc.)—where the offence that is aided, abetted, counselled, procured, solicited or incited is an offence specified in paragraph (a) or (b);

serious drug offence restraining order means a restraining order made under section 18 for the purpose referred to in section 15(1)(c);

serious drug offender means a person declared under section 89DI of the



13

Sentencing Act 1991 to be a serious drug offender;".

18 Purposes for which a restraining order may be made

After section 15(1)(b) of the Confiscation Act 1997 insert—

"(c) to satisfy automatic forfeiture of property that may occur under Division 4 of Part 3;".

19 New section 15A inserted

After section 15 of the Confiscation Act 1997 insert—

"15A Property may be subject to both restraining order and civil forfeiture restraining order

(1) Property or an interest in property may be subject to both a restraining order under this Part and a civil forfeiture restraining order.

(2) If both a restraining order under this Part made for the purposes of section 15(1)(a), (b) or (c) and a civil forfeiture restraining order apply in relation to the same property or interest in property, the restraining order under this Part, to the extent that it applies to that property or interest in property, remains in operation until the earliest of—

(a) the property being able to be disposed of in accordance with section 44(2) because a civil forfeiture order under Division 2 of Part 4 has been made in



14

relation to the same property or interest in property to which the restraining order applies; or

(b) the restraining order ceasing to operate or being set aside in whole or in part under section 27; or

(c) the property or interest in property being excluded from the operation of the restraining order by an exclusion order.".

20 Application for restraining order


"(2A) The DPP or a prescribed person, or a person belonging to a prescribed class of persons, may apply, without notice, to the Supreme Court or the County Court for a serious drug offence restraining order in respect of property if—

(a) a member of the police force or a person authorised by or under an Act to prosecute the relevant type of offence believes that—

(i) within the next 48 hours a person will be charged with a serious drug offence; and

(ii) that person has an interest in the property; or

(b) a person has been charged with a serious drug offence and that person has an interest in the property; or



15

(c) a person has been convicted of a serious drug offence and that person has an interest in the property.".

(2) In section 16(3) of the Confiscation Act 1997, after "subsection (2)" insert "or (2A)".

(3) In section 16(4) of the Confiscation Act 1997—

(a) for "subsection (1) or (2)(b), (c) or (d)" substitute "subsection (1), (2) or (2A)";

(b) for paragraph (d) substitute—

"(d) that—

(i) in the case of an application under subsection (1) or (2)—the accused has an interest in the property or the property is tainted property (as the case may be); and

(ii) in the case of an application under subsection (2A)—the accused has an interest in the property; and".

(4) In section 16(6) of the Confiscation Act 1997, for "subsection (1) or (2)" substitute "subsection (1), (2) or (2A)".




"(9) An application under subsection (2A) in relation to property or an interest in property does not preclude an application under subsection (1) or (2) in relation to the same property or interest in property.".



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21 Procedure on application

In section 17(1), (1B) and (1C) of the Confiscation Act 1997, for "section 16(1) or 16(2)" substitute "section 16(1), (2) or (2A)".

22 Determination of application

In section 18(1) of the Confiscation Act 1997—

(a) for "section 16(1) or (2)(b), (c) or (d)" substitute "section 16(1), (2) or (2A)";

(b) for "a Schedule 1 offence or a Schedule 2 offence" substitute "a Schedule 1 offence, a Schedule 2 offence or a serious drug offence".

23 Court directions to provide information

In section 19D(2)(a) of the Confiscation Act 1997, for "Schedule 1 offence or Schedule 2 offence" substitute "Schedule 1 offence, Schedule 2 offence or serious drug offence".

24 Application for exclusion from restraining order

(1) For section 20(1) of the Confiscation Act 1997 substitute—

"(1) If a court makes a restraining order against property under section 18, the following persons may apply to that court for an order under section 21, 22 or 22A—

(a) in the case of an application for an order under section 21 or 22—any person claiming an interest in the property, including the accused;

(b) in the case of an application for an order under section 22A—any person claiming an interest in the property, other than the accused.".

s. 21s. 23Part 9—Repeal of Amending Act


17

(2) In section 20(3) of the Confiscation Act 1997, for "section 21 or 22" (wherever occurring) substitute "section 21, 22 or 22A".


(a) for "section 21 or 22" substitute "section 21, 22 or 22A";

(b) for "the charge referred to in subsection (6)(b)" substitute "the charge for the offence in relation to which the restraining order is made or for any related offence".



"22A Determination of exclusion application—serious drug offence restraining order

(1) On an application made under section 20, the court may make an order excluding the applicant's interest in property from the operation of a serious drug offence restraining order made in relation to a serious drug offence if the court is satisfied that—

(a) the applicant was not, in any way, involved in the commission of the serious drug offence; and

(b) the applicant's interest in the property was not subject to the effective control of the accused on the earlier of—

(i) the date that the accused was charged with the serious drug offence; or

(ii) the date that the serious drug offence restraining order was



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made in relation to the property; and

(c) where the applicant acquired the interest from the accused, directly or indirectly, that it was acquired for sufficient consideration.

(2) If the court makes an order under subsection (1), the court may also make an order declaring the nature, extent and value of the applicant's interest in the property.Note

Property excluded from a serious drug offence restraining order may continue to be restrained if a restraining order has also been made in relation to the property for the purpose referred to in section 15(1)(b).".

26 New section 24 inserted


"24 Protected property not to be included in serious drug offence restraining order

(1) A restraining order made for the purposes of section 15(1)(c) must not include property that is protected property.

(2) For the purposes of subsection (1) and subject to subsection (3), the following property is protected property—

(a) property used by the accused or a dependant of the accused primarily as a means of transport;

(b) any item of necessary clothing of the accused or a dependant of the accused;

(c) any item of ordinary household property of the accused or a dependant of the accused;



19

(d) any tools of trade required by the accused or a dependant of the accused in earning income.

(3) An item or property of a category referred to in subsection (2) is not protected property if the value of the item exceeds the amount prescribed for that category.

(4) Subject to subsection (5), property that is excluded from a serious drug offence restraining order because it is protected property must also be excluded from any other restraining order under which the property is restrained.

(5) Subsection (4) does not apply to property that, for the purposes of the other restraining order, is tainted property.

(6) In this section—

dependant, of the accused, means a person who—

(a) has resided with the accused for a substantial period of time immediately prior to the making of the restraining order; and

(b) is wholly or substantially dependent on the accused for—

(i) financial support; or

(ii) personal care because the person has a severe disability, a medical condition or a condition of frailty;

necessary clothing does not include jewellery, collectible watches or



20

clothing that is kept as part of a collection;

ordinary household items does not include antiques, collections, collectible items and artwork.".

27 Duration and setting aside of restraining order

(1) In section 27(1) of the Confiscation Act 1997, after "restraining order" insert "(other than a serious drug offence restraining order)".


"(2) If—

(a) a serious drug offence restraining order is made in reliance on the proposed charging of an accused with a serious drug offence; and

(b) at the end of the period of 48 hours after the making of the serious drug offence restraining order, the accused has not been charged with the offence or a related offence that is a serious drug offence—

the serious drug offence restraining order ceases to be in force at the end of that period.".

(3) In section 27(3) of the Confiscation Act 1997, after "restraining order" insert "(other than a serious drug offence restraining order)".


"(3A) If—



21

(a) a serious drug offence restraining order is made in reliance on the charging, or proposed charging, of an accused with a serious drug offence; and

(b) the charge is withdrawn and the accused is not charged with a related offence that is a serious drug offence by the time of the withdrawal—

the serious drug offence restraining order ceases to be in force on the expiry of 7 days after the charge is withdrawn.

(3B) If—

(a) a serious drug offence restraining order is made in reliance on the charging, or proposed charging, of an accused with a serious drug offence; and

(b) the accused is acquitted of the charge and the accused is not charged with a related offence that is a serious drug offence by the time of the acquittal—

the serious drug offence restraining order ceases to be in force when the acquittal occurs.

(3C) If—

(a) a serious drug offence restraining order is made in reliance on the conviction of an accused of a serious drug offence; and

(b) the conviction of the accused of the offence is subsequently set aside—

the serious drug offence restraining order ceases to be in force when the appeal period expires unless a new trial has been ordered at



22

the time of the setting aside of the conviction.".

(5) In section 27(5) and (6) of the Confiscation Act 1997, after "restraining order" insert "(other than a serious drug offence restraining order)".

28 Application for freezing order

In section 31D(1)(a) of the Confiscation Act 1997—

(a) in subparagraph (i), for "a Schedule 1 offence or a Schedule 2 offence" substitute "a Schedule 1 offence, a Schedule 2 offence or a serious drug offence";

(b) in subparagraph (iii), for "such an offence" substitute "a Schedule 1 offence or a Schedule 2 offence".

29 New Division 4 of Part 3 inserted

After Division 3 of Part 3 of the Confiscation Act 1997 insert—

"Division 4—Automatic forfeiture of property of serious drug offender

36GA Automatic forfeiture of restrained property on declaration that person is serious drug offender

(1) Property of a person that is the subject of a serious drug offence restraining order is forfeited to the Minister in accordance with this section if—

(a) a declaration is made under section 89DI of the Sentencing Act 1991 that the person is a serious drug offender consequent to the conviction of the person of a serious drug offence; and



23

(b) the serious drug offence restraining order is or was made under Part 2 in reliance on—

(i) the conviction of the person of that offence; or

(ii) the charging or proposed charging of the person with that offence or a related offence that is a serious drug offence; and

(c) the restrained property is not the subject of an exclusion order under section 22A; and

(d) the restrained property is not protected property.

(2) Unless an application under section 20 for an exclusion order in respect of the restrained property is still pending, the restrained property is forfeited to the Minister on the expiry of 60 days after the later of—

(a) the making of the restraining order; or

(b) the conviction of the accused.

(3) If, on the expiry of the 60 days referred to in subsection (2), an application under section 20 for an exclusion order in respect of the restrained property is still pending, the restrained property is forfeited to the Minister—

(a) if the application is refused or dismissed—

(i) at the end of the period during which the person may appeal against the refusal or dismissal; or

(ii) if an appeal against the refusal or dismissal is lodged—when the



24

appeal is abandoned or finally determined without the order having been made; or

(b) if the application is withdrawn or struck out—on that withdrawal or striking out.

(4) For the purposes of subsections (2) and (3), an application under section 20 is not pending unless an application under section 20(1) has been made—

(a) within the period referred to in section 20(1A); or

(b) where, under section 20(1B), the court has extended the period within which the application may be made—within the period as so extended and before the expiry of the period of 60 days referred to in subsection (2).

36GB Declaration that property has been forfeited

(1) If a court makes a serious drug offence restraining order, a person may apply to the court that made the order for a declaration that property that was subject to the serious drug offence restraining order has been forfeited to the Minister under section 36GA and the court, if satisfied that the property has been forfeited to the Minister under that section, must make a declaration accordingly.

(2) An applicant under this section for a declaration that property has been forfeited is not required to give notice of the application to any person who has an interest in the property.

Note



25

Section 14 provides that a restraining order may be made in respect of property or an interest in property.".

30 Property may be subject to both civil forfeiture restraining order and restraining order

(1) In section 36J(2) of the Confiscation Act 1997 for "section 15(1)(a) or (b)" substitute "section 15(1)(a), (b) or (c)".

(2) After section 36J(2)(a) of the Confiscation Act 1997 insert—

"(ab) the property being able to be disposed of in accordance with section 44(2) because the property has been forfeited under section 36GA on the owner of the property being declared to be a serious drug offender;".

31 Effect of forfeiture

In section 41(2)(b), (3) and (4) of the Confiscation Act 1997, after "section 35" insert "or 36GA".

32 Disposal of forfeited property

(1) In section 44(1) of the Confiscation Act 1997, after "section 35" insert "or 36GA".

(2) In section 44(2) of the Confiscation Act 1997 for "section 49 or 51" substitute "section 49, 51 or 53".

(3) In section 44(3)(b) of the Confiscation Act 1997—

(a) after "automatic forfeiture" insert "under section 35";

(b) for "determined." substitute "determined;".

(4) After section 44(3)(b) of the Confiscation Act 1997 insert—



26

"(ba) in the case of automatic forfeiture under section 36GA, when an appeal may no longer be lodged against either the conviction in reliance on which automatic forfeiture occurred or a refusal to make an exclusion order under section 22A or, if such an appeal is lodged, when the appeal is abandoned or finally determined;".

(5) In section 44(3A) of the Confiscation Act 1997—

(a) for "section 49 or 51" substitute "section 49, 51 or 53";

(b) in paragraph (a)(i), for "section 49(2), 51(2) or 40A(2)" substitute "section 49(2), 51(2), 53(2) or 40A(2)";

(c) in paragraph (a)(ii), for "section 49(3), 51(3) or 40A(3)" substitute "section 49(3), 51(3), 53(3) or 40A(3)";

(d) in paragraph (b), for "section 40A(4) or 51(4)" substitute "section 40A(4), 51(4) or 53(4)".

(6) In section 44(4) and (6) of the Confiscation Act 1997, after "section 35" insert "or 36GA".



"45A Relief from automatic forfeiture of property of serious drug offender

(1) If the residence of a serious drug offender is forfeited under section 36GA, an application may be made by a dependant of the serious drug offender to the court that made the serious drug offence restraining order for relief from the forfeiture of the residence.



27

(2) An application under subsection (1) must be made within 30 days after the property is forfeited to the Minister.

(3) On an application under subsection (1), the court may order that the amount referred to in subsection (4) be paid to the dependant out of the proceeds of the sale of the forfeited residence for the purpose of securing new accommodation if the court is satisfied that—

(a) the forfeited residence is the principal place of residence of the dependants; and

(b) the forfeited residence is not tainted property for the purpose of automatic forfeiture under Division 2 of Part 3 or derived property; and

(c) the dependants of the serious drug offender do not have the means to secure accommodation of a value equivalent to the prescribed amount.

(4) The amount that a court may order under subsection (3) be paid to a dependent is—

(a) the prescribed amount; or

(b) in the event that the proceeds of the sale of the forfeited residence are less than the prescribed amount—the amount of those proceeds.

(5) The court may order one payment only from the proceeds of the sale of the forfeited residence.Example

If dependant A and dependant B each apply to the court for an order under this section, the court may order that the prescribed amount be paid to dependant



28

A or to dependant B but not to each of dependant A and dependant B.

(6) An applicant for an order under subsection (1) must give written notice of the application to the Minister or a person prescribed for the purposes of section 44(1).


dependant, of a serious drug offender, means a person who—

(a) has resided with the serious drug offender in the forfeited residence for a substantial period of time immediately prior to the making of the serious drug offence restraining order; and

(b) is wholly or substantially dependent on the serious drug offender for—

(i) financial support; or

(ii) personal care because the person has a severe disability, a medical condition or a condition of frailty.".

34 Discharge of automatic forfeiture in respect of an interest


"(1A) Automatic forfeiture under section 36GA is discharged in respect of an interest in property if—

(a) the conviction in reliance on which the automatic forfeiture occurred is subsequently set aside; or



29

(b) an exclusion order in respect of the interest is made, whether on appeal or otherwise.".

(2) In section 47(2) of the Confiscation Act 1997, after "subsection (1)" insert "or in subsection (1A)".

35 New sections 53 and 54 inserted


"53 Application for exclusion from automatic forfeiture of property of serious drug offender

(1) If property is forfeited to the Minister under section 36GA, a person (other than the accused) who claims to have had an interest in the property immediately before it was forfeited may, subject to subsections (2) and (4), apply to the court that made the relevant serious drug offence restraining order for an order under section 54.

(2) The application must, subject to subsection (3), be made before the end of the period of 60 days commencing on the day on which the property is forfeited to the Minister.

(3) Subject to subsection (6), the court that made the relevant serious drug offence restraining order may grant a person leave to apply after the end of the period referred to in subsection (2) if it is satisfied that the delay



30

in making the application is not due to neglect on the part of the applicant.

(4) An application for an order under section 54 in relation to an interest in property must not be made by a person who was given notice of—

(a) proceedings on the application for the relevant serious drug offence restraining order; or

(b) the making of the relevant serious drug offence restraining order—

except with the leave of the court that made the relevant serious drug offence restraining order.

(5) Subject to subsection (6), the court may grant a person leave under subsection (4) to make an application if the court is satisfied that the person's failure to seek to have that person's interest in the property excluded from the relevant serious drug offence restraining order was not due to neglect on the part of the applicant.

(6) The court may not grant a person leave under subsection (3) or (5) to make an application in respect of property that has been disposed of in accordance with section 44.

(7) An applicant must give written notice of the application, and of the grounds on which it is made—

(a) to the DPP; and

(b) to any person whom the applicant has reason to believe had an interest in the



31

property immediately before it was forfeited; and

(c) to a person prescribed for the purposes of section 44(1).

(8) Any person notified under subsection (7) is entitled to appear and to give evidence at the hearing of the application but the absence of that person does not prevent the court from making an order under section 54.

(9) If the DPP proposes to contest an application for an exclusion order, the DPP must give the applicant written notice of the grounds on which the application is to be contested.

54 Determination of application from exclusion from automatic forfeiture of property of serious drug offender

(1) On an application made under section 53, the court may make an order excluding the applicant's interest in property from the operation of section 36GA if the court is satisfied that—

(a) the applicant was not, in any way, involved in the commission of the serious drug offence in relation to which the relevant serious drug offence restraining order was made; and

(b) the applicant's interest in the property was not subject to the effective control of the accused on the earlier of—

(i) the date that the accused was charged with the serious drug offence; or



32

(ii) the date that the serious drug offence restraining order was made in relation to the property; and

(c) where the applicant acquired the interest from the accused, directly or indirectly, that it was acquired for sufficient consideration.

(2) If the court makes an order under subsection (1), the court may also make an order declaring the nature, extent and value of the applicant's interest in the property.".

36 Application to the Minister for return of property or payment of value

(1) In section 55(1)(b) of the Confiscation Act 1997, after "section 47(1)(a), (b) or (c)" insert "or (1A)(a) or (b)".

(2) In section 55(2) of the Confiscation Act 1997, for "section 50(1) or 52(1)" substitute "section 50(1), 52(1) or 54(1)".

(3) In section 55(4), (6)(b) and (9) of the Confiscation Act 1997, for "section 14(4), 36H(4) or 45" substitute "section 14(4), 36H(4), 45 or 45A".

(4) In section 55(6)(a) and (9)(a) of the Confiscation Act 1997, for "section 50(2) or 52(2)" substitute "section 50(2), 52(2) or 54(2)".

37 Liability under forfeiture or pecuniary penalty order to be satisfied by trustee

In section 75(2) of the Confiscation Act 1997, after "section 35" insert "or 36GA".

38 Order for examination




33

(a) in paragraph (a), for "a Schedule 1 offence or a Schedule 2 offence" substitute "a Schedule 1 offence, a Schedule 2 offence or a serious drug offence";

(b) after paragraph (a)(i) insert—

"(ia) a serious drug offence restraining order against property under section 18; or".

(2) In section 98(2A) of the Confiscation Act 1997, for "a Schedule 1 offence or a Schedule 2 offence" substitute "a Schedule 1 offence, a Schedule 2 offence or a serious drug offence".

(3) In section 98(5) of the Confiscation Act 1997, for "a Schedule 2 offence" substitute "a Schedule 2 offence or a serious drug offence".

39 Application for production order

In section 100(1) of the Confiscation Act 1997, for "a Schedule 1 offence or a Schedule 2 offence" substitute "a Schedule 1 offence, a Schedule 2 offence or a serious drug offence".

40 Application for search warrant for property-tracking documents

(1) In section 109(1) of the Confiscation Act 1997, for "a Schedule 1 offence or a Schedule 2 offence" substitute "a Schedule 1 offence, a Schedule 2 offence or a serious drug offence".

(2) In section 109(2) of the Confiscation Act 1997, for "the Schedule 1 offence or the Schedule 2 offence" substitute "the Schedule 1 offence, the Schedule 2 offence or the serious drug offence".

41 Application for monitoring order

In section 115(2)(a) of the Confiscation Act 1997—

(a) in subparagraph (i), for "a Schedule 1 offence or a Schedule 2 offence" substitute



34

"a Schedule 1 offence, a Schedule 2 offence or a serious drug offence";


42 Issuing information notices—authorised member of police force

In section 118D(2)(a) of the Confiscation Act 1997—

(a) in subparagraph (i), for "a Schedule 1 offence or a Schedule 2 offence" substitute "a Schedule 1 offence, a Schedule 2 offence or a serious drug offence";


43 Interstate orders and search warrants

In section 131(3) of the Confiscation Act 1997, for "a Schedule 1 offence or a Schedule 2 offence" substitute "a Schedule 1 offence, a Schedule 2 offence or a serious drug offence".

44 Crime Prevention and Victims' Aid Fund

In section 134(3) of the Confiscation Act 1997, after "section 35" insert "or 36GA".

45 Conversion costs

In section 135 of the Confiscation Act 1997, after "section 35" insert "or 36GA".



35

46 Appeals

In section 142(1)(b), (4) and (5)(ba) of the Confiscation Act 1997, for "section 21, 22, 50(1) or 52(1)" (wherever occurring) substitute "section 21, 22, 22A, 50(1), 52(1) or 54(1)".



"188 Transitional—Criminal Organisations Control and Other Acts Amendment Act 2014

(1) An application under section 16(2A) for a serious drug offence restraining order may only be made in relation to a serious drug offence that is committed, or alleged to have been committed, after the commencement of section 20 of the Criminal Organisations Control and Other Acts Amendment Act 2014.

(2) For the purposes of subsection (1), if an offence is committed, or alleged to have been committed, between two dates and section 20 of the Criminal Organisations Control and Other Acts Amendment Act 2014 commences on a date between those two dates, the offence is taken to have been committed, or alleged to have been committed, before the commencement of that section.".



36

Subdivision 2—Amendment of Sentencing Act 1991

48 Sentencing guideliness. 48

See:Act No.49/1991.Reprint No. 15as at30 September 2013and amendingAct Nos32/2013, 46/2013, 70/2013, 77/2013, 7/2014, 15/2014, 17/2014, 26/2014 and 37/2014.LawToday:www.legislation.vic.gov.au

(1) In section 5(2A)(ab) of the Sentencing Act 1991 after "under" insert "Division 2 or 3 of Part 3 of".

(2) In section 5(2A)(e) of the Sentencing Act 1991, after "Schedule 2 offence" insert "or a serious drug offence".



37

49 New Division 5 of Part 4 inserted

At the end of Part 4 of the Sentencing Act 1991 insert—

"Division 5—Serious drug offender

89DI Declaration by court that person is serious drug offender

(1) On the conviction of a person by a court for a serious drug offence, the court must make an order declaring the person to be a serious drug offender.


serious drug offence has the same meaning as in section 3(1) of the Confiscation Act 1997.".

Subdivision 3—Amendment of Drugs, Poisons and Controlled Substances Act 1981

50 Trafficking in a drug or drugs of dependence—large commercial quantity

s. 50See:Act No.9719.Reprint No. 10as at30 November 2012and amendingAct Nos57/2012, 82/2012, 70/2013, 9/2014, 13/2014 and 37/2014.LawToday:www.legislation.vic.gov.au



38

At the foot of section 71 of the Drugs, Poisons and Controlled Substances Act 1981 insert—"Note

An offence against this section is a serious drug offence for the purposes of the Confiscation Act 1997. On the conviction of a person for a serious drug offence, the court must make an order under section 89DI of the Sentencing Act 1991 declaring the person to be a serious drug offender.".

51 Cultivation of narcotic plants—large commercial quantity

At the foot of section 72 of the Drugs, Poisons and Controlled Substances Act 1981 insert—"Note

An offence against this section is a serious drug offence for the purposes of the Confiscation Act 1997. On the conviction of a person for a serious drug offence, the court must make an order under section 89DI of the Sentencing Act 1991 declaring the person to be a serious drug offender.".

52 Conspiring

At the foot of section 79(1) of the Drugs, Poisons and Controlled Substances Act 1981 insert—"Note

An offence against this section is a serious drug offence for the purposes of the Confiscation Act 1997 where the conspiracy is to commit an offence against section 71 or 72. On the conviction of a person for a serious drug offence, the court must make an order under section 89DI of the Sentencing Act 1991 declaring the person to be a serious drug offender.".

53 Aiding and abetting etc.



39

(1) At the foot of section 80(1) of the Drugs, Poisons and Controlled Substances Act 1981 insert—"Note

An offence against this section is a serious drug offence for the purposes of the Confiscation Act 1997 where the offence that is aided, abetted, counselled, procured, solicited or incited is an offence against section 71 or 72. On the conviction of a person for a serious drug offence, the court must make an order under section 89DI of the Sentencing Act 1991 declaring the person to be a serious drug offender.".

(2) At the foot of section 80(3) of the Drugs, Poisons and Controlled Substances Act 1981 insert—"Note

An offence against this section is a serious drug offence for the purposes of the Confiscation Act 1997 where the conspiracy is to commit an offence that, if committed in Victoria, would be an offence against section 71 or 72 or the offence that is aided, abetted, counselled, procured, solicited or incited is an offence that, if committed in Victoria, would be an offence against section 71 or 72. On the conviction of a person for a serious drug offence, the court must make an order under section 89DI of the Sentencing Act 1991 declaring the person to be a serious drug offender.".

Division 4—Amendments relating to management of restrained property

54 Restraining orders

For section 14(3) of the Confiscation Act 1997 substitute—

"(3) If the court making a restraining order considers that the circumstances so require, the order may direct one of the following to take control of some or all of the property specified in the order—

(a) a trustee specified in the order;

(b) a person holding a prescribed position within the Department of Justice.".



40

55 Further orders

(1) In section 26(5)(ga) of the Confiscation Act 1997—

(a) for "a trustee" (where first occurring) substitute "a trustee or a person holding a prescribed position referred to in section 14(3)";

(b) for "a trustee" (where secondly occurring) substitute "a trustee or a person holding a prescribed position referred to in that section".

(2) In section 26(5)(h) of the Confiscation Act 1997—

(a) for "a trustee" substitute "a trustee or a person holding a prescribed position referred to in section 14(3)";

(b) in subparagraph (i), for "the trustee" substitute "the trustee or the person holding a prescribed position".

56 Civil forfeiture restraining orders

For section 36H(3) of the Confiscation Act 1997 substitute—

"(3) If the Supreme Court or the County Court, when making a civil forfeiture restraining order, considers that the circumstances so require, the order may direct one of the following to take control of some or all of the property specified in the order—

(a) a trustee specified in the order;

(b) a person holding a prescribed position within the Department of Justice.".

57 Further orders



41

In section 36W(6) of the Confiscation Act 1997—

(a) in paragraph (h), for "a trustee" (wherever occurring) substitute "a trustee or a person holding a prescribed position referred to in section 36H(3)";

(b) in paragraph (i)—

(i) for "a trustee" substitute "a trustee or a person holding a prescribed position referred to in section 36H(3)";

(ii) in subparagraph (i), for "the trustee" substitute "the trustee or the person holding a prescribed position".

58 Liability under forfeiture or pecuniary penalty order to be satisfied by trustee

After section 75(2) of the Confiscation Act 1997 insert—

"(3) If a court, when making a restraining order or a civil forfeiture restraining order, directs a person holding a prescribed position referred to in section 14(3) or 36H(3) (as the case may be) to take control of property, a reference in subsections (1) and (2) to the trustee is to be read as a reference to the person holding the prescribed position.".

59 Provisions concerning trustee

After section 76(7) of the Confiscation Act 1997 insert—

"(8) If a court, when making a restraining order or a civil forfeiture restraining order, directs a person holding a prescribed position referred to in section 14(3) or 36H(3) (as the case may be) to take control of property, a reference in subsections (2) to (7) to the



42

trustee is to be read as a reference to the person holding the prescribed position.".

__________________



43

PART 3—CRIMINAL ORGANISATIONS CONTROL

Division 1—Amendment of Criminal Organisations Control Act 2012

60 Definitionss. 60

See:Act No.80/2012and amendingAct Nos80/2012 and 37/2014.LawToday:www.legislation.vic.gov.au

In section 3(1) of the Criminal Organisations Control Act 2012—

(a) for the definition of applicable offence substitute—

"applicable offence means—

(a) an indictable offence that is punishable by at least 5 years imprisonment; or

(b) an offence against a provision specified in an item of the Schedule, being a provision of the Act specified in the heading to that item; orNote

See also section 10.

(c) an offence against section 321, 321G or 321M of the Crimes Act 1958 in relation to an offence referred to in paragraph (a) or (b);";



44

(b) in the definition of member, in paragraph (c), for "displays" substitute "wears or displays";

(c) for the definition of related organisation substitute—

"related organisation means an organisation specified in an application in accordance with section 15(1)(ba) on which the Court has made a declaration that applies to an individual;";

(d) insert the following definitions—

"prohibitive declaration—see section 19(2);

restrictive declaration—see section 19(2A);".

61 Section 4 repealed

Section 4 of the Criminal Organisations Control Act 2012 is repealed.

62 Meaning of prospective member

In section 8(2)(c) of the Criminal Organisations Control Act 2012, after "wears" insert "or displays".

63 Form and content of application

(1) After section 15(1)(b) of the Criminal Organisations Control Act 2012 insert—

"(ba) in the case of an application in respect of an individual, identify the organisation that is relevant for the purposes of section 19(3)(a) and (b); and".

(2) After section 15(1) of the Criminal Organisations Control Act 2012 insert—

"(1A) An application in respect of an organisation does not need to state whether a prohibitive



45

declaration or a restrictive declaration is sought.".

(3) In section 15(2) of the Criminal Organisations Control Act 2012—

(a) for "In the case of an application in respect of an organisation, the" substitute "An";

(b) for "the application" substitute "an application".

64 Objection to application for declaration

In section 17(2)(b) of the Criminal Organisations Control Act 2012, for "section 15(2)" substitute "section 15(4)".

65 Court may make declarations

(1) For section 19(2) of the Criminal Organisations Control Act 2012 substitute—

"(2) The Court may make a declaration under subsection (1)(a) (a prohibitive declaration) if—

(a) the Court is satisfied beyond reasonable doubt that the matters set out in subsection (2B) apply to the organisation; and

(b) the Court is satisfied on the balance of probabilities that the activities of the organisation pose a serious threat to public safety and order.

(2A) The Court may make a declaration under subsection (1)(a) (a restrictive declaration) if the Court is satisfied on the balance of probabilities that—

(a) the matters set out in subsection (2B) apply to the organisation; and



46

(b) the activities of the organisation pose a serious threat to public safety and order.

(2B) For the purposes of subsection (2)(a) and (2A)(a), the matters that apply to an organisation are, as the case requires—

(a) the organisation—

(i) has engaged in, organised, facilitated or supported serious criminal activity; or

(ii) is engaging in, organising, facilitating or supporting serious criminal activity; or

(b) any 2 or more members, former members or prospective members of the organisation have used or are using—

(i) the organisation; or

(ii) their relationship with that organisation or with that organisation's members, former members or prospective members—

for a criminal purpose; or

(c) any 2 or more members or prospective members of the organisation are also members, former members or prospective members of an organisation to which a control order applies; or

(d) control orders apply to any 2 or more members or prospective members of the organisation.

(2C) The Court may also make a prohibitive declaration or a restrictive declaration if the



47

organisation gives its consent to the declaration being made.Note

Section 135A specifies how consent is to be given.".


(a) after "satisfied" insert "on the balance of probabilities";

(b) in paragraph (a), for "an organisation" substitute "the organisation identified in the application for the declaration in accordance with section 15(1)(ba)".


"(3A) The Court may also make a declaration under subsection (1)(b) if the individual gives his or her consent to the declaration being made.Note


(4) In section 19(4) of the Criminal Organisations Control Act 2012, for "(2)" substitute "(2), (2A)".


(a) for "subsections (2)(a)(ii)" substitute "subsections (2B)(b)";

(b) in paragraph (f)(i), after "wearing" insert "or displaying".

(6) In section 19(6) of the Criminal Organisations Control Act 2012, for "subsections (2)(a)(ii)" substitute "subsections (2A)(b)".



48


"(7) In making a declaration by consent in accordance with subsection (2C) or (3A), the Court is not required to consider the matters set out in subsections (2), (2A) and (3).".

66 New section 21 substituted

For section 21 of the Criminal Organisations Control Act 2012 substitute—

"21 Objections to be disregarded if respondent consents to declaration

The Court must disregard any objection made under section 17 in making a declaration if the respondent gives consent to the declaration being made.

Note


67 Form of declaration

After section 22(a) of the Criminal Organisations Control Act 2012 insert—

"(ab) if the declaration applies to an organisation, whether it is a prohibitive declaration or a restrictive declaration; and".

68 Duration of declaration

In section 24(1) of the Criminal Organisations Control Act 2012, after "section 29" insert "or 29A".

69 Application for revocation of declaration



49

For section 27(3) of the Criminal Organisations Control Act 2012 substitute—

"(3) The Court may grant leave to apply under subsection (2) if—

(a) the Chief Commissioner files with the Court a notice, signed by the Chief Commissioner, stating that the Chief Commissioner supports the granting of leave; or

(b) the Court is satisfied that there has been a substantial change in circumstances since the declaration that applies to the organisation or individual was made.".

70 Section 29 substituted


"29 Determination of application for revocation of declaration in respect of organisation

(1) The Court may, in accordance with this section, revoke a declaration in respect of an organisation on an application under section 27.

(2) The Court may revoke a prohibitive declaration made on the basis that the Court was satisfied of the matters set out in section 19(2) if the Court is—

(a) no longer satisfied beyond reasonable doubt that the matters set out in section 19(2B) apply to the declared organisation; or

(b) no longer satisfied on the balance of probabilities that the activities of the



50

declared organisation pose a serious threat to public safety and order.

(3) The Court may revoke a restrictive declaration made on the basis that the Court was satisfied of the matters set out in section 19(2A) if the Court is no longer satisfied on the balance of probabilities that both—

(a) the matters set out in section 19(2B) apply to the declared organisation; and

(b) the activities of the declared organisation pose a serious threat to public safety and order.

(4) The Court may revoke a prohibitive declaration made by consent in accordance with section 19(2C) if the Court—

(a) is not satisfied beyond reasonable doubt that the matters set out in section 19(2B) apply to the declared organisation; or

(b) is not satisfied on the balance of probabilities that the activities of the declared organisation pose a serious threat to public safety and order.

(5) The Court may revoke a restrictive declaration made by consent in accordance with section 19(2C) if the Court is not satisfied on the balance of probabilities that both—

(a) the matters set out in section 19(2B) apply to the declared organisation; and



51

(b) the activities of the declared organisation pose a serious threat to public safety and order.

(6) The Court may revoke a declaration in respect of an organisation if the respondent gives consent to the revocation.Note



After section 29 of the Criminal Organisations Control Act 2012 insert—

"29A Determination of application for revocation of declaration in respect of individual

(1) The Court may, in accordance with this section, revoke a declaration in respect of an individual on an application under section 27.

(2) The Court may revoke a declaration that was made on the basis that the Court was satisfied of the matters set out in section 19(3) if the Court is no longer satisfied of those matters on the balance of probabilities.

(3) The Court may revoke a declaration that was made by consent in accordance with section 19(3A) if the Court is not satisfied of the matters set out in section 19(3) on the balance of probabilities.

(4) The Court may revoke a declaration if the respondent gives consent to the revocation.



52

Note


72 When revocation of declaration takes effect

In section 30(1) of the Criminal Organisations Control Act 2012, after "section 29" insert "or 29A".

73 Court may make control order


"(1) The Court may make a control order that applies to an organisation if the organisation is a declared organisation and the Court is satisfied that—

(a) if the declaration which applies to the organisation is a prohibitive declaration—the making of the control order is likely to contribute to the purpose of preventing or disrupting serious criminal activity by—


(ii) any members, former members or prospective members of the organisation; or

(b) if the declaration which applies to the organisation is a restrictive declaration—it is necessary or desirable to restrict, or to impose conditions on, the activities of—



53


(ii) any members, former members or prospective members of the organisation—

in order to end, prevent or reduce a serious threat to public safety and order.".


"(1A) The Court may also make a control order that applies to an organisation if—

(a) the organisation is a declared organisation; and

(b) the organisation gives its consent to the control order being made.

Note



"(2) The Court may make a control order that applies to an individual if the Court is satisfied that—

(a) the individual is a member, former member or prospective member of an organisation that is subject to a declaration; and

(b) either—



54

(i) if the declaration is a prohibitive declaration—the making of the control order is likely to contribute to the purpose of preventing or disrupting—

(A) serious criminal activity by the individual; or

(B) serious criminal activity by any other person that is being or may be facilitated by the individual; or

(ii) if the declaration is a restrictive declaration—it is necessary or desirable to restrict, or to impose conditions on, the activities of the individual in order to end, prevent or reduce a serious threat to public safety and order.".


"(2A) The Court may make a control order that applies to an individual if—

(a) the individual is a declared individual; and

(b) the Court is satisfied that it is necessary or desirable to restrict, or to impose conditions on, the activities of the individual in order to end, prevent or reduce a serious threat to public safety and order.

(2B) The Court may also make a control order that applies to an individual if—



55

(a) either—

(i) the Court is satisfied that the individual is a declared organisation member; or

(ii) the individual is a declared individual; and

(b) the individual gives his or her consent to the control order being made.

Note



"(5) In making a control order by consent in accordance with subsection (1A) or (2B), the Court is not required to consider the matters set out in subsections (1), (2) and (2A).".

74 Content of control orders—declared organisations


(a) paragraph (a) is repealed;

(b) in paragraph (b)—

(i) after "prohibit" insert "certain";

(ii) after "declared organisation" insert "(or certain classes of members, former members or prospective members)";

(c) in paragraph (h), for "owns" substitute "owns,".




56

"(2A) The control order may include a condition that prohibits the organisation from doing any of the following only if the declaration applying to the organisation is a prohibitive declaration—

(a) continuing to operate;

(b) carrying on business;

(c) taking on new members.".


"(4) A person who was a member of a declared organisation on the day of the initial application, but who has since become a former member of that organisation, is taken to be both a member and a former member for the purposes of a condition imposed under subsection (2)(b) or (d).


carrying out of an activity does not include being or becoming a party to a proceeding (including an appeal);

day of the initial application, in relation to a declared organisation, means the day on which the Chief Commissioner applied for the declaration that applies to the organisation.".

75 Winding up of incorporated associations that are prohibited from operating under a control order

In section 46(1) of the Criminal Organisations Control Act 2012, for "prohibiting the organisation from continuing to operate" substitute "under section 45(2A)(a)".




57


"51A Objections to be disregarded if respondent consents to control order

The Court must disregard any objection made under section 41 in making a control order if the respondent gives consent to the control order being made.

Note


77 Form of control order

For section 52(b) of the Criminal Organisations Control Act 2012 substitute—

"(b) in the case of an individual—

(i) if the control order was made on the basis that the Court was satisfied of the matters set out in section 43(2)—the declared organisation; or

(ii) if the control order was made on the basis that the Court was satisfied of the matters set out in section 43(2A)—the related organisation; or

(iii) if the control order was made by consent in accordance with section 43(2B)—

(A) whether the order was made on the basis of section 43(2B)(a)(i) or (ii); and



58

(B) the declared organisation or related organisation (as the case requires); and".

78 Notice of making of control order that applies to a declared organisation


"(1) The Chief Commissioner must cause notice of the making of a control order which applies to a declared organisation to be—

(a) published—

(i) in the Government Gazette; and

(ii) in a newspaper circulating generally throughout the State; and

(b) affixed to or near an appropriate place.".

(2) In section 55(2) of the Criminal Organisations Control Act 2012, after "published" insert "and affixed".


"(4) The notice that is to be affixed to or near an appropriate place must be in the prescribed form.".

79 Application for variation or revocation of control order or ancillary order

For section 56(3) of the Criminal Organisations Control Act 2012 substitute—

"(3) The Court may grant leave to apply under subsection (2) if—

(a) the Chief Commissioner files with the Court a notice, signed by the Chief



59

Commissioner, stating that the Chief Commissioner supports the granting of leave; or

(b) the Court is satisfied that there has been a substantial change in circumstances since the control order or ancillary order that applies to the declared organisation or the individual was made.".

80 Section 58 substituted


"58 Determination of application for variation or revocation—control order

(1) The Court may, in accordance with this section, vary or revoke a control order on an application under section 56.

(2) The Court may vary a control order if—

(a) the Court considers there has been a substantial change in circumstances since the order was made; or

(b) the respondent consents to the variation.

(3) The Court may revoke a control order that was made on the basis that the Court was satisfied of the matters set out in section



60

43(1), (2) or (2A) if the Court is no longer satisfied of those matters.

(4) The Court may revoke a control order that was made by consent in accordance with section 43(1A) if the Court is not satisfied of the matters set out in section 43(1).

(5) The Court may revoke a control order that was made by consent in accordance with section 43(2B) if—

(a) in the case of a control order that was made on the basis of section 43(2B)(a)(i), the Court is not satisfied of the matters set out in section 43(2); or

(b) in the case of a control order that was made on the basis of section 43(2B)(a)(ii), either—

(i) the individual is no longer a declared individual; or

(ii) the Court is not satisfied of the matters set out in section 43(2A)(b).

(6) The Court may revoke a control order if the respondent consents to the revocation.

Note




"58A Determination of application for variation or revocation—ancillary order

(1) The Court may, in accordance with this section, vary or revoke an ancillary order on an application under section 56.



61

(2) The Court may vary an ancillary order if—

(a) the Court considers there has been a substantial change in circumstances since the order was made; or

(b) the respondent consents to the variation.

(3) The Court may revoke an ancillary order if—

(a) the Court is satisfied that the basis on which the order was made no longer exists; or

(b) the respondent consents to the revocation.

Note


82 Effect of registration of corresponding declaration

In section 96 of the Criminal Organisations Control Act 2012—

(a) after "section 43(2)" insert "and (2B)";

(b) after "as if it were a" insert "restrictive".

83 Information to be kept on register

After section 131(1)(b) of the Criminal Organisations Control Act 2012 insert—

"(ba) if the declaration applies to an organisation, whether it is a prohibitive declaration or a restrictive declaration;".

84 Annual report

For section 133(1)(c) of the Criminal Organisations Control Act 2012 substitute—



62

"(c) the number of prohibitive declarations that were in effect on the last day of that financial year;

(ca) the number of restrictive declarations that were in effect on the last day of that financial year;".

85 New sections 135A, 135B and 135C inserted


"135A Consent

(1) This section applies in relation to the giving of consent referred to in the following provisions—

(a) section 19(2C) and (3A);

(b) section 21;

(c) section 29(6);

(d) section 29A(4);

(e) section 43(1A)(b) and (2B)(b);

(f) section 51A;

(g) section 58(2)(b) and (6);

(h) section 58A(2)(b) and (3)(b).

(2) Consent is given by filing with the Court a notice of consent that is—

(a) in the case of consent given by an individual—signed by the individual; or

(b) in the case of consent given by a company or a registered foreign company within the meaning of the Corporations Act—executed by the company in accordance with section 127 of that Act; or



63

(c) in the case of consent given by an incorporated association—executed in accordance with section 38 of the Associations Incorporation Reform Act 2012; or

(d) in the case of consent given by an association incorporated under the law of another State or Territory—signed by a person authorised to execute a document on behalf of the association under the law of that State or Territory; or

(e) in the case of consent given by an unincorporated body or association—signed by 2 office holders of the body or association.

135B Costs

(1) In relation to an application referred to in section 9(1)—

(a) the applicant must bear the applicant's own costs; and

(b) the respondent must bear the respondent's own costs; and

(c) a person who, under section 17 or 41, makes an objection to the application must bear their own costs.

(2) Despite subsection (1), the Court may award costs against a person referred to in that subsection if the person has—



64

(a) made an application or objection that the Court considers frivolous or vexatious; or

(b) by an unreasonable act or omission caused the other person to incur costs in relation to the application or objection.

(3) If the Court awards costs against an unincorporated body or association under subsection (2), each member of the body or association is jointly and severally liable for those costs.

135C Adjournment before costs order made

(1) This section applies if, at a hearing for an application referred to in section 9(1)—

(a) the Court decides that there are grounds to award costs against a person under section 135B(2); and

(b) neither the person nor the person's legal representative (if any) is present at the hearing.

(2) The Court may—

(a) adjourn the proceeding; and

(b) give the person notice that an order for costs will be made at the next hearing of the proceeding unless the person contests the making of the order at that hearing.

(3) For the purposes of this section, an organisation is present at a hearing if an office holder of the organisation is present at the hearing.".

86 Schedule amended



65

(1) After the heading to the Schedule to the Criminal Organisations Control Act 2012 insert the following note—"Note

In relation to provisions in the Crimes Act 1958, see paragraph (c) of the definition of applicable offence in section 3(1).".

(2) In the Schedule to the Criminal Organisations Control Act 2012 the following items are repealed—

(a) item 3;

(b) item 5;

(c) items 6.1, 6.6, 6.10, 6.12, 6.14, 6.16, 6.18, 6.39, 6.40, 6.43, 6.44, 6.55, 6.58 and 6.88;

(d) items 7.1, 7.3 and 7.5.

(3) In the Schedule to the Criminal Organisations Control Act 2012—

(a) in item 6.2, after "longarm" insert "without a licence";

(b) in item 6.3, after "longarm" insert "without a licence";

(c) in item 6.4, after "longarm" insert "without a licence";

(d) in item 6.5, after "longarm" insert "without a licence";

(e) in item 6.13, after "pre-1947" insert "general category";

(f) in item 6.21, for "longarm licence for category E longarms" substitute "licence for category E longarms or category E handguns";

(g) in item 6.35, after "longarm" insert "or general category handgun";



66

(h) in item 6.41, for "acquiring a category E handgun from" substitute "disposing of a category A or B longarm to".

Division 2—Amendment of Firearms Act 1996

87 Definitionss. 87

See:Act No.66/1996.Reprint No. 7as at18 March 2013and amendingAct Nos17/2014, 26/2014 and 37/2014.LawToday:www.legislation.vic.gov.au

(1) In section 3(1) of the Firearms Act 1996, in the definition of prohibited person, after paragraph (c) insert—

"(ca) a declared individual within the meaning of the Criminal Organisations Control Act 2012; or

(cb) a person to whom a control order (within the meaning of the Criminal Organisations Control Act 2012) applies; or".

(2) In section 3(1) of the Firearms Act 1996 insert the following definition—

"declared organisation member has the same meaning as it has in the Criminal Organisations Control Act 2012;".

88 General discretion of Chief Commissioner to refuse a longarm or handgun licence

At the end of section 17 of the Firearms Act 1996 insert—



67

"(2) An applicant, or a responsible person in relation to an application, is presumed not to be a fit and proper person for the purposes of subsection (1)(c)(i) if he or she is a declared organisation member.

(3) A presumption under subsection (2) may be rebutted.".

89 General discretion of Chief Commissioner to refuse a junior licence


"(2) An applicant is presumed not to be a fit and proper person for the purposes of subsection (1)(b)(i) if he or she is a declared organisation member.


90 General discretion of Chief Commissioner to refuse a firearms collectors licence




91 General discretion of Chief Commissioner to refuse a firearms heirlooms licence




68

"(2) An applicant, or a responsible person in relation to an application, is presumed not to be a fit and proper person for the purposes of subsection (1)(b)(i) if he or she is a declared organisation member.


92 General discretion of Chief Commissioner to refuse a firearms ammunition collectors licence




93 Review of decision not to issue a licence

In section 34(2) of the Firearms Act 1996, for "section 17(c)(ia)" substitute "section 17(1)(c)(ia)".

94 General discretion of Chief Commissioner to refuse to renew a licence or to alter or vary the conditions of a licence

After section 42(2) of the Firearms Act 1996 insert—





69

95 Power of Chief Commissioner to cancel licence under this Part


"(2A) A holder of a licence, or a responsible person in relation to a licence, is presumed not to be a fit and proper person for the purposes of subsection (1)(f) if he or she is a declared organisation member.

(2B) A presumption under subsection (2A) may be rebutted.".

96 Provisional general category handgun licences

After section 58A(2) of the Firearms Act 1996 insert—

"(2A) An applicant is presumed not to be a fit and proper person for the purposes of subsection (2)(b) if he or she is a declared organisation member.


97 General discretion of Chief Commissioner to refuse a dealers licence


"(2) A person referred to in subsection (1)(c)(i) is presumed not to be a fit and proper person for the purposes of subsection (1)(c)(i)(A) if he or she is a declared organisation member.


98 General discretion of Chief Commissioner to refuse to renew a dealers licence



70


"(2) A person referred to in subsection (1)(b)(i) is presumed not to be a fit and proper person for the purposes of that paragraph if he or she is a declared organisation member.


99 Power of Chief Commissioner to cancel a dealers licence


"(2) A person referred to in subsection (1)(e) is presumed not to be a fit and proper person for the purposes of that paragraph if he or she is a declared organisation member.


100 General discretion of Chief Commissioner to refuse to issue a permit to acquire


"(1A) An applicant or a responsible person in relation to an application is presumed not to be a fit and proper person for the purposes of subsection (1)(b)(i) if he or she is a declared organisation member.


101 Permit to store handguns

After section 121A(2) of the Firearms Act 1996 insert—



71

"(2A) An applicant is presumed not to be a fit and proper person for the purposes of subsection (2)(b) if he or she is a declared organisation member.


102 Power of delegation

In section 176(b) of the Firearms Act 1996, for "section 17(c)(ia)" substitute "section 17(1)(c)(ia)".

Division 3—Amendment of Fortification Removal Act 2013

103 Definitions

In section 3 of the Fortification Removal Act 2013, in the definition of specified offence, in paragraph (a), for "10 years" substitute "5 years".

104 Schedule amended

(1) After the heading to the Schedule to the Fortification Removal Act 2013 insert the following note—"Note

In relation to provisions in the Crimes Act 1958, see paragraph (c) of the definition of specified offence in section 3.".

(2) In the Schedule to the Fortification Removal Act 2013 the following items are repealed—

(a) item 3;

(b) item 5;

(c) items 6.1, 6.6, 6.10, 6.12, 6.14, 6.16, 6.18, 6.39, 6.40, 6.43, 6.44, 6.55, 6.58 and 6.88;

See:Act No.48/2013 and amendingAct No. 37/2014.LawToday:www.legislation.vic.gov.au



72

(d) items 7.1, 7.3 and 7.5.

Division 4—Amendment of Major Crime (Investigative Powers) Act 2004

105 Definitionss. 105

See:Act No.79/2004.Reprint No. 3as at1 March 2013and amendingAct Nos79/2004, 70/2013, 17/2014 and 37/2014.LawToday:www.legislation.vic.gov.au

In section 3 of the Major Crime (Investigative Powers) Act 2004—

(a) for the definition of organised crime offence substitute—

"organised crime offence has the meaning given by section 3AA;";

(b) insert the following definitions—

"declared individual has the same meaning as it has in the Criminal Organisations Control Act 2012;

declared organisation member has the same meaning as it has in the Criminal Organisations Control Act 2012;".

106 New section 3AA inserted

After section 3 of the Major Crime (Investigative Powers) Act 2004 insert—

"3AA Meaning of organised crime offence



73

(1) For the purposes of this Act, organised crime offence means an indictable offence against the law of Victoria that—

(a) is punishable by level 5 imprisonment (10 years maximum) or more; and

(b) involves 2 or more offenders; and

(c) satisfies subsection (2) or (3).

(2) An offence satisfies this subsection if the offence—

(a) involves substantial planning and organisation; and

(b) forms part of systemic and continuing criminal activity; and

(c) has a purpose of obtaining profit, gain, power or influence or of sexual gratification where the victim is a child.

(3) An offence satisfies this subsection if 2 or more of the offenders involved in the offence are, at any time, either declared individuals or a declared organisation members.

(4) It is immaterial that the offence was committed before the commencement of this Act.".

107 Application for order

(1) In section 5(1) of the Major Crime (Investigative Powers) Act 2004, for "subsection (2)" substitute "subsections (2) and (2A)".

(2) After section 5(2) of the Major Crime (Investigative Powers) Act 2004 insert—

"(2A) An offence that is an organised crime offence because it satisfies section 3AA(3) may be the subject of an application under subsection (1) only if 2 or more of the



74

offenders involved in the offence are either declared individuals or declared organisation members at the time that the application is made.".

__________________



75

PART 4—CRIMINAL PROCEDURE

Division 1—Amendment of Criminal Procedure Act 2009 relating to committal proceedings

108 Contents of case direction notices. 108

See:Act No.7/2009.Reprint No. 3as at1 March 2013and amendingAct Nos12/2013, 22/2013, 32/2013, 56/2013, 67/2013, 77/2013, 17/2014, 26/2014 and 37/2014.LawToday:www.legislation.vic.gov.au

(1) For section 119(c) of the Criminal Procedure Act 2009 substitute—

"(c) must state the names of any witnesses that the accused intends to seek leave to cross-examine, and for each witness the accused must specify—

(i) each issue for which leave to cross-examine is sought; and

(ii) the reason why the evidence of the witness is relevant to the issue; and

(iii) the reason why cross-examination of the witness on the issue is justified;

Notes

1 At a committal mention hearing, the Magistrates' Court may grant leave to cross-examine a witness on one or more issues. If the Magistrates' Court grants leave to cross-examine a witness, the court must identify each issue on which the witness may be cross-examined. See section 124(6).



76

2 If leave to cross-examine a witness is granted under section 124, the Magistrates' Court may grant leave, during the committal hearing, for the accused to cross-examine the witness on other issues. See section 132A.".

(2) For section 119(d) of the Criminal Procedure Act 2009 substitute—

"(d) must state, in respect of each issue specified in accordance with paragraph (c)—

(i) whether the informant consents to or opposes leave being granted in respect of that issue; and

(ii) if the informant opposes leave being granted, the reason why leave is opposed;".

109 Leave required to cross-examine other witnesses

(1) For section 124(2) of the Criminal Procedure Act 2009 substitute—

"(2) In determining whether to grant leave to cross-examine a witness, the Magistrates' Court may have regard to whether the informant consents to or opposes leave being granted.".

(2) In section 124(3) of the Criminal Procedure Act 2009—

(a) for "If the informant does not consent to leave to cross-examine a witness being granted, the" substitute "The";

(b) after "grant leave" insert "to cross-examine a witness".



77

(3) At the foot of section 124(4) of the Criminal Procedure Act 2009 insert—"Notes

1 Section 102 of the Evidence Act 2008 provides that credibility evidence about a witness is not admissible (the credibility rule).

2 Section 103(1) of the Evidence Act 2008 provides that the credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness.".

(4) After section 124(5) of the Criminal Procedure Act 2009 insert—

"(6) If the Magistrates' Court grants leave to cross-examine a witness, the court must identify each issue on which the witness may be cross-examined.".

110 Cross-examination of witnesses

(1) For section 132(1) of the Criminal Procedure Act 2009 substitute—

"(1) An accused who obtains leave to cross-examine a witness is limited to cross-examining the witness on—

(a) the issues identified under section 124(6); and

(b) the issues, if any, in relation to which leave has been obtained under section 132A.".

(2) For section 132(2)(a) of the Criminal Procedure Act 2009 substitute—

"(a) the question does not relate to an issue in relation to which leave has been obtained under section 124 or 132A; or".




78

After section 132 of the Criminal Procedure Act 2009 insert—

"132A Leave to cross-examine witness on different issue

(1) This section applies if the Magistrates' Court grants leave for the accused to cross-examine a witness under section 124.

(2) The Magistrates' Court may grant leave for the accused to cross-examine the witness on an issue that was not identified under section 124(6).

(3) In determining whether to grant leave, the Magistrates' Court may have regard to whether the informant consents to or opposes leave being granted.

(4) The Magistrates' Court must not grant leave unless the court is satisfied that—

(a) the accused has identified an issue to which the proposed questioning relates and has provided a reason why the evidence of the witness is relevant to that issue; and

(b) cross-examination of the witness on that issue is justified.

(5) In determining whether cross-examination on an issue is justified, the Magistrates' Court must have regard to the matters referred to in section 124(4) and (5).".

Division 2—Other amendments to Criminal Procedure Act 2009

112 Definitions

In section 3 of the Criminal Procedure Act 2009 insert the following definition—



79

"traffic camera offence means—

(a) an offence under the Road Safety Act 1986 or regulations or rules under that Act that is detected by a road safety camera, a speed detector or a process prescribed for the purposes of that Act; or

(b) an offence under the Melbourne City Link Act 1995 that is detected by a tolling device or a process prescribed for the purposes of Part 4 of that Act; or

(c) an offence under the EastLink Project Act 2004 that is detected by a tolling device or a process prescribed for the purposes of Part 9 of that Act;".

113 Summons for summary offence may be served by ordinary service

(1) In section 17(1) of the Criminal Procedure Act 2009, after "summary offence" insert "(other than a traffic camera offence)".

(2) In section 17(3) of the Criminal Procedure Act 2009, for "394(a)" substitute "394(1)(a)".



"17A Service of summons for traffic camera offence

(1) A summons to answer to a charge for a traffic camera offence may be served personally on the accused in accordance with section 391 or by ordinary service in accordance with section 394.

(2) If a summons is served in accordance with section 394(1)(a) or (ab), evidence of service



80

must state—

(a) how the informant ascertained the address to which the summons was posted; and

(b) the time and place of posting.".

115 When full brief must be served

In section 39(1A)(a) of the Criminal Procedure Act 2009, for "7 days" substitute "21 days".

116 Documents to be provided by police at first mention hearing

For section 53A(3) of the Criminal Procedure Act 2009 substitute—

"(3) This section does not apply to a proceeding for a traffic camera offence.".

117 Ordinary service

After section 394(1)(a) of the Criminal Procedure Act 2009 insert—

"(ab) if the document relates only to a traffic camera offence, by sending a copy of the document by prepaid ordinary post addressed to the person to be served at a post office box address nominated by the person; or".



"444 Transitional provision—Criminal Organisations Control and Other Acts Amendment Act 2014

(1) Sections 17 and 394 as amended by sections 113 and 117 of the Criminal



81

Organisations Control and Other Acts Amendment Act 2014 apply to a criminal proceeding commenced on or after the day on which sections 113 and 117 of that Act come into operation, irrespective of when the offence is alleged to have been committed.

(2) Section 17A as inserted by section 114 of the Criminal Organisations Control and Other Acts Amendment Act 2014 applies to a criminal proceeding commenced on or after the day on which section 114 of that Act comes into operation, irrespective of when the offence is alleged to have been committed.

(3) Section 39 as amended by section 115 of the Criminal Organisations Control and Other Acts Amendment Act 2014 applies to a criminal proceeding commenced on or after the day on which section 115 of that Act comes into operation, irrespective of when the offence is alleged to have been committed.

(4) Section 119 as amended by section 108 of the Criminal Organisations Control and Other Acts Amendment Act 2014 applies to a committal proceeding in which a committal mention hearing is held on or after the day on which section 108 of that Act comes into operation, irrespective of when the committal proceeding commenced.

(5) Sections 124 and 132 as amended by sections 109 and 110 of the Criminal Organisations Control and Other Acts Amendment Act 2014 apply to a committal proceeding in which no committal mention hearing or committal hearing has been held before the day on which sections 109 and



82

110 of that Act come into operation, irrespective of when the committal proceeding commenced.

(6) Section 132A as inserted by section 111 of the Criminal Organisations Control and Other Acts Amendment Act 2014 applies to a committal proceeding in which no committal mention hearing or committal hearing has been held before the day on which section 111 of that Act comes into operation, irrespective of when the committal proceeding commenced.".

__________________



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PART 5—MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED

Division 1—Amendment of Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

119 Definitionss. 119

See:Act No.65/1997.Reprint No. 4as at28 June 2012and amendingAct Nos17/2014, 26/2014 and 37/2014.LawToday:www.legislation.vic.gov.au

In section 3(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997—

(a) for the definition of court substitute—

"court, except in Part 5A, means Supreme Court or County Court and in section 47 includes Magistrates' Court and Children's Court;";

(b) in the definition of custodial supervision order, before "means" insert ", except in Part 5A,";

(c) in paragraph (a) of the definition of forensic patient, after "Act" insert "(other than Part 5A)";

(d) in the definition of forensic resident—

(i) in paragraph (a), after "institution" insert "(other than under Part 5A)";

(ii) in paragraph (b), after "order" insert "(other than under Part 5A)";



84

(e) in the definition of investigation, before "means" insert ", except in Part 5A,";

(f) in the definition of non-custodial supervision order, before "means" insert ", except in Part 5A,";

(g) in the definition of President, before "means" insert ", except in Part 5A,";

(h) in the definition of special hearing, before "means" insert ", except in Part 5A,";

(i) in the definition of supervision order, before "means" insert ", except in Part 5A,";

(j) in the definition of victim, for "the offence." substitute "the offence;";

(k) insert the following definitions—

"child has the same meaning as in the Children, Youth and Families Act 2005;

youth justice centre has the same meaning as in the Children, Youth and Families Act 2005;

youth residential centre has the same meaning as in the Children, Youth and Families Act 2005.".

120 Application to courts and proceedings

In section 4(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997—

(a) after "5" insert ", 5A"; and

(b) after "Parts" insert "5A,".

121 Application to Magistrates' Court



85

After section 5(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert—

"(3) This section does not apply to the Children's Court.".


After section 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert—

"5A Application to Children's Court

(1) If the Children's Court has jurisdiction to hear and determine an indictable offence, the Children's Court may determine in accordance with Part 5A—

(a) the fitness of an accused to stand trial for the offence; and

(b) a defence of mental impairment raised to the offence.

Note

Section 516 of the Children, Youth and Families Act 2005 sets out the jurisdiction of the Criminal Division of the Children's Court.

(2) The defence of mental impairment as provided for in section 38ZA and the presumption in section 38ZB(1) apply to summary offences and to indictable offences heard and determined summarily in the Children's Court.



86

(3) If the Children's Court finds a child not guilty because of mental impairment of a summary offence, the Children's Court must discharge the child.".

123 Orders pending investigation into fitness

(1) After section 10(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert—

"(ba) in the case of an accused who is a child, subject to subsection (2), an order remanding the accused in custody in a youth justice centre or a youth residential centre for a specified period;".

(2) In section 10(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after "place" insert "or a youth justice centre or a youth residential centre".

124 Amendment of section heading

In the heading to section 14A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "plead" substitute "stand trial".

125 New Part 5A inserted

After Part 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert—

"PART 5A—PROCEEDINGS IN THE CHILDREN'S COURT AND APPEALS FROM

THOSE PROCEEDINGS

Division 1—General

38G Application of Part

(1) This Part applies to—

(a) indictable offences heard and determined summarily by the Children's Court; and



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(b) committal proceedings in the Children's Court; and

(c) appeals from—

(i) a finding by the Children's Court that a child is unfit to stand trial; and

(ii) a finding by the Children's Court that a child is not guilty of an indictable offence because of mental impairment; and

(iii) the making of a supervision order by the Children's Court; and

(d) appeals by the Director of Public Prosecutions against an order by the Children's Court for unconditional release of a child found not guilty because of mental impairment of an indictable offence.

(2) Division 4 and this Division apply to—

(a) summary offences heard and determined by the Children's Court; and

(b) appeals from a finding by the Children's Court that a child is not guilty of a summary offence because of mental impairment.

(3) Parts 6 (other than sections 39, 40(1) and 47), 7, 7A and 7B do not apply to an order under this Part.

38H Definitions

In this Part—

Chief Commissioner of Police means the Chief Commissioner of Police appointed under section 4 of the Police Regulation Act 1958;



88

Children's Court means the Children's Court constituted in accordance with section 38I;

custodial supervision order means a supervision order referred to in section 38ZH(5)(a);

custody means detention in a youth justice centre or a youth residential centre;

investigation means investigation under Division 2;

magistrate has the same meaning as in the Children, Youth and Families Act 2005;

non-custodial supervision order means a supervision order referred to in section 38ZH(5)(b);

President has the same meaning as in the Children, Youth and Families Act 2005;

return date, in relation to a proceeding in a court, means any date on which the proceeding is listed before the court;

special hearing means a hearing under Division 3;

supervision order means an order made under section 38ZH.

38I Constitution of Children's Court

(1) If the question of the fitness of a child to stand trial arises or the defence of mental impairment is raised in a proceeding in the Children's Court—

(a) if the offence is punishable by level 2 imprisonment (25 years maximum), the Children's Court must be constituted by



89

the President or, if the President is unavailable, a magistrate nominated by the President; or

(b) in any other case, the Children's Court must be constituted by the

President or a magistrate.

(2) Section 504(8) of the Children, Youth and Families Act 2005 does not apply to a proceeding referred to in subsection (1).

38J Remand in custody

(1) The Children's Court or an appellate court must not remand a child in custody unless it is satisfied that there is no practicable alternative in the circumstances.

(2) The Children's Court or an appellate court must not make an order remanding a child in custody unless it has received a certificate under section 47 stating that the facilities or services necessary for that order are available.

Division 2—Unfitness to stand trial

38K When is a child unfit to stand trial?

(1) A child is unfit to stand trial for an indictable offence if, because the child's mental processes are disordered or impaired, the child is or, at some time during the hearing in the Children's Court, will be—

(a) unable to understand the nature of the charge; or

(b) unable to enter a plea to the charge; or

(c) unable to understand the nature of the hearing (namely that it is an inquiry as



90

to whether the child committed the offence); or

(d) unable to follow the course of the hearing; or

(e) unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or

(f) unable to give instructions to his or her legal practitioner.

(2) A child is not unfit to stand trial only because he or she is suffering from memory loss.

38L Presumptions, standard of proof etc.

(1) A child is presumed to be fit to stand trial.

(2) The presumption is rebutted only if it is established, on an investigation under this Division, that the child is unfit to stand trial.

(3) The question of a child's fitness to stand trial—

(a) is a question of fact; and

(b) is to be determined on the balance of probabilities.

(4) If the question of a child's fitness to stand trial is raised by the prosecution or the defence, the party raising it bears the onus of rebutting the presumption of fitness.

(5) If the question is raised by the Children's Court, the prosecution has carriage of the matter, but no party bears any onus of proof in relation to it.

(6) If the defence intends to raise the question of a child's fitness to stand trial, the defence



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must give reasonable notice of that intention to the prosecution.

38M Committals

(1) If the question of the fitness of a child to stand trial arises in a committal proceeding for an indictable offence—

(a) the committal proceeding must be completed in accordance with Chapter 4 of the Criminal Procedure Act 2009; and

(b) the child must not be discharged only because the question has been raised; and

(c) if the child is committed for trial, the question must be reserved for consideration by the trial judge.

(2) If a child is committed for trial and the question of his or her fitness to stand trial has been reserved under subsection (1)(c)—

(a) an indictment must be filed in respect of the offence; and

(b) the issue of whether there is a real and substantial question as to the fitness of the child to stand trial must be determined by the trial judge; and

(c) if the trial judge determines that there is a real and substantial question, an investigation must be held under Part 2.

38N Reservation of question of fitness to stand trial by Children's Court

(1) At any time after a charge-sheet has been filed against a child, if it appears to the Children's Court that there is a real and substantial question as to the fitness of the



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child to stand trial, the court must reserve for investigation under this Division the question of the fitness of the child to stand trial.

(2) At any time during a hearing in the Children's Court, if it appears to the court that there is a real and substantial question as to the fitness of the child to stand trial, the court must adjourn or discontinue the hearing and proceed with an investigation under this Division.

(3) Nothing in this Act prevents the question of the fitness of a child to stand trial from being raised more than once in the same proceeding.

Note

See section 38L(6) for the requirement that reasonable notice be given to the prosecution if the defence intends to raise the question of fitness to stand trial.

38O Time limit for investigation into fitness

An investigation into the fitness of a child to stand trial must be completed as soon as possible after the question is reserved under section 38N and in any event within 3 months.

38P Children's Court may make orders pending investigation into fitness

If the Children's Court reserves for investigation the question of the fitness of a child to stand trial, it may make any one or more of the following orders—

(a) an order granting the child bail;

(b) an order remanding the child in custody;



93

(c) if it is of the opinion that it is in the interests of justice to do so, an order—

(i) that the child undergo an examination by a registered medical practitioner or registered psychologist; and

(ii) that the results of the examination be put before the court;

(d) any other order the court thinks appropriate.

38Q Procedure on investigation

(1) On an investigation into the fitness of a child to stand trial—

(a) the Children's Court must hear any relevant evidence and submissions put to the court by the prosecution or the defence; and

(b) if it is of the opinion that it is in the interests of justice to do so, the Children's Court may—

(i) call evidence on its own initiative; and

(ii) require the child to undergo an examination by a registered medical practitioner or registered psychologist; and

(iii) require the results of any such examination to be put before the court.

(2) Nothing in subsection (1) prevents the application of Part 3.10 of the Evidence Act 2008 to an investigation, and for the purposes of the application of Part 3.10 the



94

investigation is taken to be a criminal proceeding.

(3) If the Children's Court finds that the child is unfit to stand trial, the court must—

(a) determine, by reference to any relevant evidence and on the balance of probabilities, whether or not the child is likely to become fit to stand trial within the next 6 months; and

(b) if the court determines that the child is likely to become fit within the next 6 months, specify the period by the end of which the child is likely to be fit to stand trial.

(4) For the purposes of subsection (3) the Children's Court may call further evidence on its own initiative.

38R What happens after an investigation?

(1) If the Children's Court finds that a child is fit to stand trial, the hearing must be commenced or resumed in accordance with usual criminal procedures as soon as possible and in any event within 3 months.

(2) If the Children's Court finds that a child is not fit to stand trial and the court determines that the child is likely to become fit within the next 6 months, the court must adjourn the matter for the period specified under section 38Q(3)(b) and may—

(a) grant the child bail; or

(b) remand the child in custody for a specified period (not exceeding the period specified under section 38Q(3)(b)); or



95

(c) make any other order the court thinks appropriate.

(3) If the Children's Court finds that a child is not fit to stand trial and the court determines that the child is not likely to become fit within the next 6 months, the court—

(a) must proceed to hold a special hearing under Division 3 as soon as possible and in any event within 3 months; and

(b) may remand the child in custody or grant bail to the child or make any other order that the court considers appropriate for the safe custody of the child until the special hearing.

38S Abridgment of adjournment

(1) At any time during a period of adjournment under section 38R(2) the child or the prosecutor may apply to the Children's Court—

(a) for an order that the hearing commence or resume, if the child or the prosecutor is of the opinion that the child has become fit to stand trial; or

(b) for an order that the court proceed to hold a special hearing, if the child or the prosecutor is of the opinion that the child will not become fit to stand trial by the end of the period of 6 months after the first finding of unfitness.

(2) An application under subsection (1) must be accompanied by a report on the mental condition of the child by a registered medical practitioner or registered psychologist.

(3) On an application under subsection (1) the Children's Court must—



96

(a) dismiss the application; or

(b) if satisfied that the child has become fit to stand trial, make an order that the hearing commence or resume as soon as possible; or

(c) if satisfied that the child will not become fit to stand trial by the end of the period of 6 months after the first finding of unfitness, make an order that the court proceed to hold a special hearing as soon as possible and in any event within 3 months.

38T What happens at the end of an adjournment?

(1) At the end of the period of adjournment under section 38R(2), the child is presumed to be fit to stand trial unless a real and substantial question of fitness is raised again.

(2) If a real and substantial question of fitness is raised again, the Children's Court—

(a) must proceed to hold a special hearing under Division 3 as soon as possible and in any event within 3 months; and

(b) may remand the child in custody or grant bail to the child or make any other order that the court considers appropriate for the safe custody of the child until the special hearing.

38U Appeal in relation to fitness to stand trial

(1) In a criminal proceeding in the Children's Court, if the question has arisen whether a child is unfit to stand trial and on an investigation under this Division the Children's Court finds that the child is unfit to stand trial, the child may appeal to the



97

County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court against the finding on any ground of appeal.

(2) An appeal under subsection (1) is commenced by filing a notice of appeal with a registrar of the Children's Court at any venue of the Children's Court within 28 days after the day on which the finding is made.

(3) A copy of the notice of appeal must be served on the respondent in accordance with section 392 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice is filed.

(4) A notice of appeal must be in the form prescribed by the rules of the appellate court.

(5) The Children's Court must transmit a notice of appeal filed under this section to the appellate court.

(6) On an appeal under subsection (1), the appellate court must allow the appeal if the child satisfies the court that—

(a) the finding of unfitness to stand trial is unreasonable or cannot be supported having regard to the evidence; or

(b) the Children's Court made a material error of law; or

(c) for any other reason the appellate court considers that the finding should not stand.

(7) In any other case, the appellate court must dismiss an appeal under subsection (1).



98

(8) If the appellate court allows an appeal under subsection (1), it must set aside the finding of unfitness to stand trial and either—

(a) refer the matter to the Children's Court for hearing and determination of the offence charged against the child; or

(b) remit the matter for a rehearing of the investigation under this Division as to whether the child is fit to stand trial.

(9) Despite subsection (8), if the appellate court allows an appeal under subsection (1) but considers that the child is unfit to stand trial, it may affirm the finding and refer the matter to the Children's Court.

(10) If the appellate court remits a matter under subsection (8)(b)—

(a) it may give directions concerning the manner and scope of the rehearing; and

(b) the Children's Court conducting the rehearing must hear and determine the matter in accordance with the directions, if any.

(11) On remitting or referring a matter under this section, the appellate court may remand the child in custody or grant bail to the child or make any other order that the court considers appropriate for the safe custody of the child.

Division 3—Special hearings

38V Purpose of special hearings

The purpose of a special hearing is to determine whether, on the evidence available, the child—



99

(a) is not guilty of the offence; or

(b) is not guilty of the offence because of mental impairment; or

(c) committed the offence charged or an offence available as an alternative.

38W Procedure at special hearings

(1) A special hearing is to be conducted as nearly as possible as if it were a hearing and determination of a charge for an offence.

(2) Without limiting subsection (1), at a special hearing—

(a) the child must be taken to have pleaded not guilty to the offence; and

(b) the child may raise any defence that could be raised if the special hearing were a hearing of the charge, including the defence of mental impairment; and

(c) the rules of evidence apply; and

(d) subject to section 524 of the Children, Youth and Families Act 2005, the child must be legally represented; andNote

See section 525(2) of the Children, Youth and Families Act 2005.

(e) any alternative finding that would be available if the special hearing were a hearing and determination of the charge is available to the Children's Court.

38X Findings at special hearings

(1) The following findings are available to the Children's Court at a special hearing—

(a) not guilty of the offence charged;



100

(b) not guilty of the offence because of mental impairment;

(c) the child committed the offence charged or an offence available as an alternative.

(2) To make a finding under subsection (1)(c) the Children's Court must be satisfied beyond reasonable doubt, on the evidence available, that the child committed the offence charged or an offence available as an alternative.

38Y Effect of findings

(1) If the Children's Court makes a finding under section 38X(1)(a), the child is to be taken for all purposes to have been found not guilty at a hearing and determination of the charge.

(2) A finding under section 38X(1)(b) is to be taken for all purposes to be a finding of not guilty because of mental impairment at a hearing and determination of the charge.Note

Section 38ZE provides for appeals against a finding of not guilty because of mental impairment.

(3) A finding under section 38X(1)(c)—

(a) constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates; and

(b) constitutes a bar to further prosecution in respect of the same circumstances; and

(c) is subject to appeal in the same manner as if the child had been convicted of the offence in a hearing and determination of the charge.



101

(4) If the Children's Court makes a finding under section 38X(1)(c), the court must—

(a) declare that the child is liable to supervision under Division 5; or

(b) order the child to be released unconditionally.

(5) The Children's Court must not declare a child liable to supervision unless the court considers that the declaration is necessary in all the circumstances including—

(a) whether adequate supervision is available in the community; and

(b) whether the child has complied with community supervision and the extent of that compliance; and

(c) whether a declaration is required for the protection of the child or the community.

(6) The Children's Court must not order a child to be released unconditionally unless the court is satisfied that, if necessary, the child is receiving appropriate treatment or support for the child's mental health or disability.

(7) The Children's Court may adjourn a hearing to enable evidence of the matters referred to in subsections (5) and (6) to be obtained.

38Z Court may make orders pending making of supervision order

If the Children's Court declares a child liable to supervision, the court may make any one or more of the following orders pending the making of a supervision order—




102


(c) any other order the court thinks appropriate.

Division 4—Defence of mental impairment

38ZA Defence of mental impairment

(1) The defence of mental impairment is established for a child charged with an offence if, at the time of engaging in conduct constituting the offence, the child was suffering from a mental impairment that had the effect that—

(a) he or she did not know the nature and quality of the conduct; or

(b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

(2) If the defence of mental impairment is established, the child must be found not guilty because of mental impairment.

38ZB Presumptions, standard of proof etc.

(1) A child is presumed not to have been suffering from a mental impairment having the effect referred to in section 38ZA(1) until the contrary is proved.

(2) The question whether a child was suffering from a mental impairment having the effect referred to in section 38ZA(1)—

(a) is a question of fact; and



103

(b) is to be determined on the balance of probabilities.

(3) If the defence of mental impairment is raised by the prosecution or the defence, the party raising it bears the onus of rebutting the presumption.

(4) If the defence intends to raise the question of mental impairment, the defence must give reasonable notice of that intention to the prosecution.

38ZC When may the question of mental impairment be raised?

(1) The question of mental impairment may be raised at any time during a hearing by the defence or, with the leave of the Children's Court, by the prosecution.

(2) A child must not be discharged in a committal proceeding only because the defence of mental impairment has been raised.

38ZD Effect of finding of not guilty because of mental impairment

(1) If a child is found not guilty because of mental impairment of an indictable offence heard and determined summarily in the Children's Court, the court must—

(a) declare that the child is liable to supervision under Division 5; or

(b) order the child to be released unconditionally.

(2) The Children's Court must not declare a child liable to supervision unless the court



104

considers that the declaration is necessary in all the circumstances including—

(a) whether adequate supervision is available in the community; and



(3) The Children's Court must not order a child to be released unconditionally unless the court is satisfied that, if necessary, the child is receiving appropriate treatment or support for the child's mental health or disability.

(4) The Children's Court may adjourn a hearing to enable evidence of the matters referred to in subsections (2) and (3) to be obtained.

38ZE Appeal against mental impairment finding

(1) In a criminal proceeding in the Children's Court, if a finding of not guilty because of mental impairment is recorded against a child, the child may appeal to the County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court against the finding on any ground of appeal.

(2) An appeal under subsection (1) is commenced by filing a notice of appeal with a registrar of the Children's Court at any venue of the Children's Court within 28 days after the day on which the finding is made.

(3) A copy of the notice of appeal must be served on the respondent in accordance with



105

section 392 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice is filed.



(6) On an appeal under subsection (1), the appellate court must allow the appeal if the child satisfies the court that—

(a) the finding of the Children's Court is unreasonable or cannot be supported having regard to the evidence; or

(b) as a result of an error or an irregularity in, or in relation to, the hearing there has been a substantial miscarriage of justice; or

(c) for any other reason there has been a substantial miscarriage of justice.

(7) Despite subsection (6), the appellate court may dismiss an appeal that would otherwise be allowed under that subsection if—

(a) none of the grounds for allowing the appeal relates to the issue of the mental impairment of the appellant; and

(b) the court considers that, but for the mental impairment of the appellant, the proper verdict would have been that the appellant was guilty of an offence other than the offence charged.

(8) In any other case, the appellate court must dismiss an appeal under subsection (1).

(9) If the appellate court—



106

(a) allows an appeal under subsection (1) on a ground that the finding of not guilty because of mental impairment ought not to stand; and

(b) considers that the proper finding would have been guilty of an offence, whether the offence charged or an offence available as an alternative verdict—

the appellate court must substitute for the finding a finding of guilty of that offence and may make any order, or exercise any power, that the Children's Court could have made or exercised.

(10) Subject to subsection (9), if the appellate court allows an appeal under subsection (1), it must set aside the finding and either—

(a) enter a finding of not guilty of the offence charged; or

(b) order a new trial.

(11) If the appellate court orders a new trial, it may remand the child in custody or grant bail to the child or make any other order that the court considers appropriate for the safe custody of the child.

38ZF Appeal against unconditional release

(1) The Director of Public Prosecutions may appeal to the County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court against an order for unconditional release under section 38ZD(1)(b) if he or she considers that—

(a) the order should not have been made; and



107

(b) an appeal should be brought in the public interest.

(2) An appeal under subsection (1) is commenced by filing a notice of appeal with a registrar of the Children's Court at any venue of the Children's Court within 28 days after the day on which the order is made.

(3) A notice of appeal under subsection (2) must be signed by the Director of Public Prosecutions personally.

(4) A copy of the notice of appeal must be served personally on the child in accordance with section 391 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice of appeal is filed.

(5) The Director of Public Prosecutions must provide a copy of the notice of appeal to the legal practitioner who last represented the child in the proceeding to which the appeal relates, if that legal practitioner can reasonably be identified.



(8) On an appeal under subsection (1), the appellate court may—

(a) confirm the order; or

(b) set aside the order and by order declare that the child is liable to supervision under Division 5.

(9) The appellate court must not declare a child liable to supervision unless the court



108

considers that the declaration is necessary in all the circumstances including—

(a) whether supervision is available in the community; and



(10) If the appellate court declares a child liable to supervision, the appellate court may—

(a) remit the matter, with or without directions, to the Children's Court; or

(b) make a supervision order in respect of the child.

(11) If the appellate court remits a matter to the Children's Court under subsection (10)(a), that court must make a supervision order in respect of the person in accordance with this Act and any directions given by the appellate court.

(12) The appellate court may remand the child in custody or grant bail to the child or make any other order that the court considers appropriate for the safe custody of the child pending the making of a supervision order in respect of the child.

Division 5—Disposition of children declared to be liable to supervision

38ZG Application of Division

This Division continues to apply, for the duration of a supervision order made under



109

this Division, to a person who is no longer a child.

Note

Section 516 of the Children, Youth and Families Act 2005 provides for a person who is no longer a child before or during the hearing of a charge for an offence but was a child when the proceeding for the offence was commenced.

38ZH Supervision orders

(1) If the Children's Court declares that a child is liable to supervision under this Division, the court must make a supervision order in respect of the child.

(2) The purpose of a supervision order is to ensure that a child receives treatment, support, guidance and assistance for the child's mental impairment or other condition or disability.

(3) A custodial supervision order has an additional purpose of protecting the child or the community while the child receives the treatment, support, guidance and assistance referred to in subsection (2).

(4) A child may be subject to a custodial supervision order only for as long as is required for the protection of the child or the community.

(5) A supervision order may—

(a) commit the child to custody (custodial supervision order); or

(b) release the child on conditions decided by the Children's Court and specified in the order (non-custodial supervision order).

(6) The Children's Court must not make a supervision order unless it has received—



110

(a) a report under Division 6 as to supervision; and

(b) a certificate under section 47 stating that the facilities or services necessary for the supervision order are available.

(7) The Children's Court must not make a custodial supervision order unless the court finds that—

(a) there is no practicable alternative in the circumstances; and

(b) the order is required for the protection of the child or the community.

38ZI How long does a supervision order last?

(1) A supervision order is for a term not exceeding 6 months that is specified by the Children's Court.

(2) When making a supervision order, the Children's Court must direct that the matter be brought back to the court for review at the end of the period specified by the court.Note

The court's powers on review are contained in section 38ZO (for custodial supervision orders) and section 38ZP (for non-custodial supervision orders).

(3) The term of a supervision order may be extended more than once by a maximum of 6 months but so that the total period of the order (including custodial supervision orders and non-custodial supervision orders) does not exceed—

(a) in the case of a child aged 10 years or more but under 15 years at the time of the making of the supervision order, 12 months; and



111

(b) in the case of a child aged 15 years or more but under 21 years at the time of the making of the supervision order, 24 months.

38ZJ Appeal against supervision order

(1) A child in respect of whom a supervision order is made may appeal to the County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court against the supervision order.

(2) The Director of Public Prosecutions, the Attorney-General, the Secretary to the Department of Human Services or the Secretary to the Department of Health may appeal to the County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court against a supervision order if he or she considers that—

(a) a different supervision order should have been made; and

(b) an appeal should be brought in the public interest.

(3) An appeal under this section is commenced by filing a notice of appeal with a registrar of the Children's Court at any venue of the Children's Court within 28 days after the day on which the order is made.

(4) If the appeal is commenced by a child in respect of whom a supervision order is made, a copy of the notice of appeal must be served on the respondent in accordance with section 392 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice is filed.



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(5) If the appeal is commenced by the Secretary to the Department of Human Services, the Secretary to the Department of Health, the Director of Public Prosecutions or the Attorney-General—

(a) the notice of appeal must be signed by that person personally; and

(b) a copy of the notice of appeal must be served personally on the child in accordance with section 391 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice is filed; and

(c) that person must provide a copy of the notice of appeal to the legal practitioner who last represented the child in the proceeding when the supervision order was made, if that legal practitioner can reasonably be identified.



(8) On an appeal under this section, the appellate court may—

(a) confirm the supervision order; or

(b) set aside the supervision order and make another supervision order in substitution for it; or

(c) set aside the supervision order and remit the matter, with or without directions, to the Children's Court; or

(d) set aside the supervision order and order the child who was subject to the



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supervision order to be released unconditionally.

(9) If the appellate court remits a matter to the Children's Court under subsection (8)(c), the Children's Court must make another supervision order in accordance with this Act and any directions given by the appellate court.

(10) The appellate court may make any one or more of the following orders pending the making of a supervision order in respect of a child under this section—



(c) if it is of the opinion that it is in the interests of justice to do so, an order—

(i) that the child undergo an examination by a registered medical practitioner or registered psychologist; and

(ii) that the results of the examination be put before the court that is to make the supervision order;

(d) any other order the court thinks appropriate.

38ZK Non-compliance with non-custodial supervision order

(1) A person having the supervision of a child under a non-custodial supervision order (the supervisor), the Secretary to the Department of Human Services or the Secretary to the Department of Health may



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apply to the Children's Court for a variation of the order if it appears to the supervisor, the Secretary to the Department of Human Services or the Secretary to the Department of Health that the child has failed to comply with the order.

(2) The Children's Court may order that a warrant to arrest be issued against the child subject to the non-custodial supervision order if the child does not attend before the court on the hearing of the application.

(3) If the Children's Court is satisfied by evidence on oath, whether orally or by affidavit, or by the admission of the child subject to the non-custodial supervision order that the child has failed to comply with the order, the court must, by order—


(b) vary the conditions of the order; or

(c) vary the order to a custodial supervision order.

Note

Section 47 requires that a certificate under that section be provided before a court makes a custodial supervision order.

(4) If the Children's Court varies a non-custodial supervision order to a custodial supervision order before the end of the term of the order, that term continues to run.

38ZL Emergency power of apprehension

(1) A child subject to a non-custodial supervision order may be apprehended by an appropriate person if the appropriate person reasonably believes—



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(a) that the child has failed to comply with the order; and

(b) that the safety of the child or members of the public will be seriously endangered if the child is not apprehended.

(2) Subject to subsection (4), a child who is apprehended under subsection (1) is to be detained in custody and, if necessary, treated or provided with services for his or her condition.

(3) For the purpose of apprehending a child and taking them to a place of detention, the appropriate person may with such assistance as is required and such force as may be reasonably necessary—

(a) enter any premises in which he or she has reasonable grounds for believing that the child may be found; and

(b) if necessary to enable that child to be apprehended and taken safely, use any restraint that may be reasonably necessary.

(4) A child who is apprehended under this section must be released from detention within 48 hours unless, within that period, an application is made under section 38ZK(1) for variation of the child's supervision order.

(5) The Children's Court must hear an application referred to in subsection (4) as soon as possible.


appropriate person, in relation to a child subject to a supervision order, means—



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(a) a person having supervision of the child under the order; or

(b) a member of the police force; or

(c) an ambulance officer; or

(d) a person who is a member of a class prescribed for the purposes of this section.

38ZM Warrant to arrest child breaching non-custodial supervision order who leaves Victoria

(1) If at any time it appears to a person having supervision of a child under a non-custodial supervision order, the Secretary to the Department of Human Services or the Secretary to the Department of Health that the child—

(a) has failed to comply with the order; and

(b) is no longer in Victoria—

the person having supervision, the Secretary to the Department of Human Services or the Secretary to the Department of Health may apply to the Children's Court for a warrant to arrest the child.

(2) If the Children's Court is satisfied by evidence on oath, whether orally or by affidavit, of the matters specified in subsection (1)(a) and (b), the court may order that a warrant to arrest be issued against the child.

(3) When a child arrested under a warrant issued under this section is returned to Victoria, he or she is to be detained in custody and treated or provided with services, if necessary, for his or her condition.



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(4) Despite subsection (3), a child must be released from detention within 48 hours unless, within that period, an application is made under section 38ZK(1) for variation of the child's supervision order.

(5) The Children's Court must hear an application referred to in subsection (4) as soon as possible.

Notes

1 Section 498(1) of the Children, Youth and Families Act 2005 provides an offence of being absent without lawful authority from a youth justice centre or a youth residential centre. Section 498(2) and (3) of that Act provide for apprehension without warrant and the issue of a search warrant.

2 Section 299 of the Mental Health Act 2014 provides for a warrant to arrest a security patient absent without leave who leaves Victoria.

38ZN Application for variation or revocation of supervision order

(1) Any of the following may apply to the Children's Court for a variation of a custodial supervision order or a variation or revocation of a non-custodial supervision order—

(a) the child subject to the order;

(b) a person having the custody, care, control or supervision of that child;

(c) the Chief Commissioner of Police.

(2) If the Children's Court refuses an application under this section by a child who is subject to a custodial supervision order, the court may order that a later application cannot be made by that child until the next review of the order by the court.

38ZO Variation of custodial supervision orders on application or review



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(1) On an application under section 38ZN for variation of a custodial supervision order or on a review of a custodial supervision order directed under section 38ZI(2) or on a further review of a custodial supervision order directed under subsection (3) or section 38ZP(2), the Children's Court must, by order—


(b) vary the place of custody; or

(c) subject to this section, vary the order to a non-custodial supervision order.

(2) The Children's Court must not vary a custodial supervision order to a non-custodial supervision order unless satisfied on the evidence available that the safety of the child subject to the order or members of the public will not be seriously endangered as a result of the release of the child on a non-custodial supervision order.

(3) Unless the Children's Court revokes the order, the court may direct that the matter be brought back to the court for further review at the end of the period not exceeding 6 months specified by the court.

38ZP Variation or revocation of non-custodial supervision orders on application or review

(1) On an application under section 38ZN for variation or revocation of a non-custodial supervision order or on a review of a non-custodial supervision order directed under section 38ZI(2) or on a further review of a non-custodial supervision order directed under subsection (2) or section 38ZO(3), the Children's Court must, by order—




119

(b) vary the conditions of the order; or

(c) vary the order to a custodial supervision order; or

(d) revoke the order.

(2) Unless the Children's Court revokes the order, the court may direct that the matter be brought back to the court for further review at the end of the period not exceeding 6 months specified by the court.

38ZQ Transfer of supervision order for review by County Court

(1) The Children's Court may order that a supervision order made under this Division be transferred to the County Court for review if the person subject to the supervision order is or will be of or above the age of 19 years at the date specified by the Children's Court for review of the supervision order.

(2) Section 38ZN applies to a supervision order transferred under subsection (1) as if a reference to the Children's Court were a reference to the County Court.

(3) On an application under section 38ZN for variation of a supervision order transferred under subsection (1) or on a review of a supervision order transferred under subsection (1), the County Court has and may exercise all the powers and authorities that the Children's Court has under this Division.

Division 6—Reports as to supervision and victim impact statements

38ZR Court must order report as to supervision



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If a court declares that a child is liable to supervision under Division 5, the court—

(a) must, before making a supervision order, order that a report under this Division as to supervision be submitted in respect of the child and adjourn the hearing to enable the report to be prepared; and

(b) may remand the child in custody or grant bail to the child or make any other order that the court considers appropriate for the safe custody of the child until the date to which the hearing is adjourned.

38ZS Who prepares a report?

Depending on the needs of the child and the services that the child may require under a supervision order, a report is to be prepared by—

(a) the Secretary to the Department of Human Services; or

(b) the Secretary to the Department of Health; or

(c) the Secretary to the Department of Health jointly with the Secretary to the Department of Human Services.

38ZT Contents of report

(1) A report must set out the following matters—

(a) whether the child has a mental impairment or other condition or disability and, if so, specify the services which are available and appropriate for the child;



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(b) the services currently being made available to the child, whether or not by a government department, and whether the child has complied with those services;

(c) if the court so requests, the services that would be made available to the child if a custodial supervision order were to be made in respect of the child.

(2) The author of a report may include in the report a recommendation as to whether a non-custodial supervision order or a custodial supervision order is appropriate for the child who is the subject of the report.

(3) If the Secretary to the Department of Human Services has issued a statement in respect of the child that the child has an intellectual disability within the meaning of the Disability Act 2006, a report must

include a copy of the statement.

(4) Division 1 of Part 7.8 of Chapter 7 of the Children, Youth and Families Act 2005 applies, with any necessary modifications, to a report under this Division.

38ZU Report to be filed with court

A report must be filed at least 3 working days before the return date with—

(a) the registrar of the Children's Court at the venue of the court at which the order was made; or

(b) in the case of an appeal under section 38ZF, the prothonotary of the Supreme Court or the registrar of the County Court (as the case requires).

38ZV Access to reports



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(1) The author of a report must, within the period referred to in section 38ZU, send a copy of the report to—

(a) the child who is the subject of the report; and

(b) the legal practitioners representing the child; and

(c) any other person whom the court has ordered is to receive a copy of the report.

(2) The author of a report is not required to send copies of the report in accordance with subsection (1)(a) or (c) if—

(a) he or she is of the opinion that information contained in the report may be prejudicial to the physical or mental health of the child; or

(b) the child notifies him or her that the child objects to the forwarding of copies of the report.

(3) If because of subsection (2) the author of a report is not required to send a copy of the report to a person, the author may send to that person a copy of part of the report.

(4) If because of subsection (2) the author of a report does not send copies of the report in accordance with subsection (1)(a) or (c)—

(a) the author must inform the registrar referred to in section 38ZU(a), the prothonotary of the Supreme Court or the registrar of the County Court (as the case requires) of that fact; and

(b) the Children's Court, the Trial Division of the Supreme Court or the County Court (as the case requires) may by



123

order direct the registrar or prothonotary to forward a copy of the report, or a specified part of the report, together with a copy of the order, to a person named or described in the order as soon as possible and before the hearing.

38ZW Victim impact statements

(1) Before a court makes a supervision order under section 38ZH or varies or revokes a supervision order under section 38ZO or 38ZP, a victim of the offence may make a victim impact statement to the court for the purpose of assisting the court in determining any conditions it may impose on the supervision order.

(2) Sections 359, 359A and 359B of the Children, Youth and Families Act 2005 apply to victim impact statements under this section.

__________________".

126 Principle to be applied

At the end of section 39 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert—

"(2) In subsection (1), supervision order includes an order made under section 38ZH.".

127 Matters to which the court is to have regard

In section 40(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "Part 3, 4 or 5" substitute "Part 3, 4, 5 or 5A".

128 Certificate of available services



124

(1) After section 47(1)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert—

"(ab) imposing a supervision order on a child—

(i) committing the child to custody in a youth justice centre or a youth residential centre; or

(ii) providing for the child to receive services in a youth justice centre or a youth residential centre or from a disability services provider or the Secretary to the Department of Human Services; or".

(2) In section 47(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997—

(a) in subparagraph (ii), for "Human Services." substitute "Human Services; or";

(b) after subparagraph (ii) insert—

"(iii) that a child be placed in custody in a youth justice centre or a youth residential centre.".

(3) After section 47(1A)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert—

"(ab) imposing a supervision order on a child providing for the child to receive services from a mental health service provider within the meaning of the Mental Health Act 2014; or".

129 Inadmissibility of evidence in other proceedings

In section 76(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, in the definition of hearing—



125

(a) in paragraph (a), after "investigation" insert "under Part 2 or Division 2 of Part 5A"; and

(b) in paragraph (b), after "hearing" insert "under Part 3 or Division 3 of Part 5A".

130 Extension of time for filing notice of appeal

(1) In section 76C(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after "Act" insert "(other than Part 5A)".

(2) After section 76C(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert—

"(3) The County Court or the Trial Division of the Supreme Court at any time may extend the time within which a notice of appeal may be filed under Part 5A.".

131 Transitional provision inserted

At the end of Schedule 3 to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert—

"15 Transitional provision—Criminal Organisations Control and Other Acts Amendment Act 2014

This Act as amended by Division 1 of Part 5 of the Criminal Organisations Control and Other Acts Amendment Act 2014 applies to—

(a) a proceeding for an offence that is commenced on or after the commencement of Division 1 of Part 5 of that Act; and



126

(b) a proceeding for an offence that, on the commencement of Division 1 of Part 5 of that Act, is before the Children's Court, irrespective of when the proceeding was commenced.".

Division 2—Amendment of Children, Youth and Families Act 2005

132 Release on parole from youth residential centres. 132

See:Act No.96/2005.Reprint No. 4as at27 March 2013and amendingAct Nos96/2005, 9/2013, 30/2013, 52/2013, 63/2013, 67/2013, 74/2013, 17/2014, 19/2014, 26/2014, 29/2014, 36/2014 and 37/2014.LawToday:www.legislation.vic.gov.au

After section 454(7) of the Children, Youth and Families Act 2005 insert—

"(8) This section does not apply to a person detained in a youth residential centre in accordance with a custodial supervision order under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.".



127

133 Release on parole from youth justice centre

After section 458(7) of the Children, Youth and Families Act 2005 insert—

"(8) This section does not apply to a person detained in a youth justice centre in accordance with a custodial supervision order under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.".

134 Jurisdiction of Youth Residential Board

At the end of section 462 of the Children, Youth and Families Act 2005 insert—

"(2) This section does not apply to a child detained in a youth residential centre in accordance with a custodial supervision order under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.".

135 Jurisdiction of Youth Parole Board

At the end of section 463 of the Children, Youth and Families Act 2005 insert—

"(2) This section does not apply to a person detained in a youth justice centre in accordance with a custodial supervision order under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.".



128

136 Governor in Council may establish corrective services

In section 478(b) and (c) of the Children, Youth and Families Act 2005, for "this Act or the Sentencing Act 1991" substitute "this Act, the Sentencing Act 1991 or the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997".

137 Children in detention

In section 482A of the Children, Youth and Families Act 2005, in the definition of detainee, after "including" insert "a person detained under an order made under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and".

138 Proceedings in which child is required to be legally represented

After section 525(2)(b) of the Children, Youth and Families Act 2005 insert—

"(ba) proceeding or investigation under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997;".

139 Duties of youth justice officers

(1) In section 544(1)(a) of the Children, Youth and Families Act 2005, after "572" insert "or a report prepared under Division 6 of Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997".

(2) In section 544(4) of the Children, Youth and Families Act 2005, after "charged" insert "or is declared liable to supervision under Division 5 of Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997".



129

Division 3—Consequential and other amendments

140 Accident Towing Services Act 2007

In section 3(2)(c) of the Accident Towing Services Act 2007—

(a) in subparagraph (i), after "17(1)(b)" insert "or 38X(1)(b)";

(b) in subparagraph (ii), after "17(1)(c)" insert "or 38X(1)(c)".

141 Appeal Costs Act 1998

(1) In section 14(4)(a) of the Appeal Costs Act 1998, after "17(1)(c)" insert "or 38X(1)(c)".

(2) After section 18(a) of the Appeal Costs Act 1998 insert—

"(ab) an appeal to the County Court or the Trial Division of the Supreme Court—

(i) against a finding under section 38X(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or

(ii) under section 38U, 38ZE or 38ZF of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or".

(3) In section 18(b) of the Appeal Costs Act 1998, after "Part 2" insert "or Division 2 of Part 5A".

(4) In section 18(c) of the Appeal Costs Act 1998, after "Part 3" insert "or Division 3 of Part 5A".

142 Bus Safety Act 2009

In section 3(3)(d) of the Bus Safety Act 2009—




130

(b) in subparagraph (iii), after "17(1)(c)" insert "or 38X(1)(c)".

143 Coroners Act 2008

In section 4(2)(f) of the Coroners Act 2008, after "section 26" insert "or 38ZH".

144 Corrections Act 1986

In section 3(1) of the Corrections Act 1986, in the definition of correctional order, in paragraph (f) after "under" insert "section 26 or 38ZH of".

145 Criminal Organisations Control Act 2012

In section 5(3) of the Criminal Organisations Control Act 2012, after "17(1)(c)" insert "or 38X(1)(c)".

146 Disability Act 2006

In section 152(2)(c) of the Disability Act 2006, after "under" insert "section 26 or 38ZH of".

147 Firearms Act 1996

In section 3(1) of the Firearms Act 1996, in the definition of prohibited person, in paragraph (c)(iii), after "section 26" insert "or 38ZH".

148 Juries Act 2000

In Schedule 2 to the Juries Act 2000, in clause 3(e) after "under" insert "section 26 or 38ZH of".

149 Legal Aid Act 1978

In section 24(2A) of the Legal Aid Act 1978, after "Part 5" insert "or 5A".



131

150 Mental Health Act 2014

(1) In section 276(2)(a) of the Mental Health Act 2014, after "that Act" insert ", other than an order made under Part 5A of that Act".

(2) After section 276(2) of the Mental Health Act 2014 insert—

"(3) Subsection (1) applies to a person who is detained in a youth justice centre or a youth residential centre under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (whether on remand or under a supervision order made under Part 5A of that Act).".

(3) In section 305(1) of the Mental Health Act 2014, in the definition of forensic patient, in paragraphs (a) and (b), after "1997" insert "(other than under Part 5A of that Act)".

151 Police Regulation Act 1958

In section 3(4)(b) of the Police Regulation Act 1958—



152 Sex Offenders Registration Act 2004

(1) In section 3 of the Sex Offenders Registration Act 2004—

(a) in the definition of existing controlled registrable offender, in paragraphs (c) and (g), for "within the meaning of" substitute "made under section 26 of";



132

(b) in the definition of government custody, in paragraph (a)(iii) and (iv), for "within the meaning of" substitute "made under section 26 of";

(c) in the definition of sentence, after paragraph (ab) insert—

"(aba) a declaration under section 38Y(4)(a) or 38ZD(1)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 that the child is liable to supervision under Division 5 of Part 5A of that Act; and";

(d) in the definition of sentence, in paragraph (ac) for "18(4)(b) or 23(b)" substitute "18(4)(b), 23(b), 38Y(4)(b) or 38ZD(1)(b)";

(e) in the definition of supervised sentence, in paragraph (d), for "within the meaning of" substitute "made under section 26(2)(b) or 38ZH(5)(b) of".

(2) In section 4(1)(d) of the Sex Offenders Registration Act 2004—

(a) after "section 17(1)(b) or (c)" insert "or section 38X(1)(b) or (c)";

(b) after "section 17(1)(c)" insert "or 38X(1)(c)".

153 Transport (Compliance and Miscellaneous) Act 1983

(1) In section 130A(2)(d) of the Transport (Compliance and Miscellaneous) Act 1983—





133

(2) In section 163(1)(d) of the Transport (Compliance and Miscellaneous) Act 1983—



154 Working with Children Act 2005

(1) In section 4(1)(d) of the Working with Children Act 2005—

(a) after "section 17(1)(b) or 17(1)(c)" insert "or under section 38X(1)(b) or 38X(1)(c)";

(b) after "section 17(1)(c)" insert "or 38X(1)(c)";

(c) for "Victoria." substitute "Victoria;".

(2) After section 4(1)(d) of the Working with Children Act 2005 insert—

"(e) a verdict of not guilty on account of insanity in relation to the offence returned under—

(i) section 420 of the Crimes Act 1958 (as then in force); or

(ii) an equivalent provision of the laws of a jurisdiction other than Victoria—

before the day on which Schedule 3 to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 came into operation.".

155 Amendment consequential on Victoria Police Act 2013

(1) In section 38H of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for the definition of Chief Commissioner of Police substitute—



134

"Chief Commissioner of Police means the Chief Commissioner of Police appointed under section 17 of the Victoria Police Act 2013;".

(2) For section 38ZL(6)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 substitute—

"(b) a police officer; or".

__________________



135

PART 6—MAJOR CRIME INVESTIGATIVE POWERS

156 Purposes of Major Crime (Investigative Powers) Act 2004

In section 1 of the Major Crime (Investigative Powers) Act 2004—

(a) in paragraph (a), after "investigate" insert "and prosecute";

(b) for paragraph (b) substitute—

"(b) to combat and reduce the incidence of organised crime offences.".

157 Definition

Insert the following definition in section 3 of the Major Crime (Investigative Powers) Act 2004—

"restricted evidence means any evidence, information or thing that is the subject of a direction that is in force under section 43(1);".

158 Confidentiality of witness summons and orders

(1) For section 20(2) and (3) of the Major Crime (Investigative Powers) Act 2004 substitute—

"(2) The Supreme Court or the Chief Examiner must give a notice under subsection (1) if satisfied that failure to do so—

(a) would reasonably be expected to prejudice—

(i) the safety of a person; or

(ii) the fair trial of a person who has been or may be charged with an offence; or

(iii) the effectiveness of an investigation of the organised



136

crime offence in relation to which the summons was issued or the order was made; or

(b) would otherwise be contrary to the public interest.

(3) The Supreme Court or the Chief Examiner may give a notice under subsection (1) if satisfied that failure to do so—

(a) might prejudice the effectiveness of an investigation of the organised crime offence in relation to which the summons was issued or the order was made; or

(b) might otherwise be contrary to the public interest.".

159 When Chief Examiner may conduct an examination

In section 29(2) of the Major Crime (Investigative Powers) Act 2004—

(a) after "proceedings" insert "(whether civil or criminal)";

(b) after "the examination" insert ", including criminal proceedings against the person in respect of that subject-matter".

160 Preliminary requirements

For section 31(2) of the Major Crime (Investigative Powers) Act 2004 substitute—

"(2) If a witness attends an examination solely to produce documents on behalf of a body corporate—

(a) subsection (1) does not apply if the witness elects to produce the documents without the requirements of that subsection having been complied with; or



137

(b) if the witness does not so elect, the Chief Examiner is only required to comply with subsection (1)(d), (e), (f) and (g) in relation to the witness.".

161 Failure of witnesses to attend and answer questions

In section 37(2) of the Major Crime (Investigative Powers) Act 2004—

(a) after "must not" insert ", without reasonable excuse";

(b) in paragraph (b) omit "without reasonable excuse,".

162 Privilege against self-incrimination abrogated


"(1A) Subsection (1) applies whether or not the person has been or may be charged with an offence in respect of the subject-matter of the question, information, document or other thing.".


"(4) Nothing in subsection (3) prevents the admission in a criminal proceeding or proceeding for the imposition of a penalty of any evidence obtained as a direct or indirect consequence of an answer given at an examination or a document or other thing produced at an examination or in answer to a witness summons, and any such evidence is admissible in the proceeding in accordance with the rules of evidence applicable to the proceeding.".



138

163 Restriction on publication of evidence

(1) For section 43(2) of the Major Crime (Investigative Powers) Act 2004 substitute—

"(2) The Chief Examiner must give a direction under subsection (1) if satisfied that failure to do so would reasonably be expected to prejudice—

(a) the safety of a person; or

(b) the fair trial of a person who has been or may be charged with an offence.

(2A) To avoid doubt, a reference in subsection (2)(a) or (b) to a person includes a person who has given, or may be about to give, evidence before the Chief Examiner or produced, or may be about to produce, a document or other thing to the Chief Examiner.".


"(4) If a person is charged with an offence against this Act, nothing in this section or section 43A prevents restricted evidence from being published or communicated by the Chief Examiner or the Chief Commissioner to the court or to the person charged or a legal practitioner representing the person charged.".

(3) Section 43(4A) and (5) of the Major Crime (Investigative Powers) Act 2004 are repealed.

164 New sections 43A and 43B inserted



139

After section 43 of the Major Crime (Investigative Powers) Act 2004 insert—

"43A Release of restricted evidence to a person charged with an offence

(1) If a court considers that it may be desirable in the interests of justice that restricted evidence be made available to a person charged with an offence before the court, or to a legal practitioner representing a person charged, the court, on the application of the Chief Commissioner, the Director of Public Prosecutions or the person charged, may give the Chief Examiner or the Chief Commissioner a certificate to that effect.

(2) If the court gives a certificate under subsection (1), the Chief Examiner or the Chief Commissioner (as the case requires) must make the restricted evidence available to the court.

(3) If restricted evidence is made available to a court under subsection (2), the court must give each person referred to in subsection (4) an opportunity to make submissions to the court as to whether or not the restricted evidence should be made available, in whole or part, to the person charged or a legal practitioner representing the person charged.

(4) For the purposes of subsection (3), the persons are—

(a) the Chief Examiner; and

(b) the Chief Commissioner; and

(c) if the direction under section 43(1) in relation to the restricted evidence



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involves the interests of a witness, the witness.

(5) The court may make the restricted evidence available to the person charged or a legal practitioner representing the person charged, and to the Director of Public Prosecutions, if, after examining the restricted evidence and considering any submissions made under subsection (3), the court is satisfied that the interests of justice so require.

43B Release of restricted evidence where person not yet charged

(1) The Chief Commissioner may apply to a court for an order that restricted evidence be made available to the Director of Public Prosecutions for the purpose of prosecuting a person for an offence if the Chief Commissioner suspects on reasonable grounds that there are reasonable prospects for the conviction of a person for an offence if the evidence is made so available.

(2) On an application under subsection (1), the court may direct the Chief Examiner or the Chief Commissioner to make the restricted evidence available to the court.

(3) If the court gives a direction under subsection (2), the Chief Examiner or the Chief Commissioner (as the case requires) must make the restricted evidence available to the court.

(4) If restricted evidence is made available to the court under subsection (3), the court must give each person referred to in subsection (5) an opportunity to make submissions to the court as to whether or not the restricted evidence should be made available, in whole



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or part, to the Director of Public Prosecutions for the purpose of prosecuting a person for an offence.

(5) For the purposes of subsection (4), the persons are—

(a) the Chief Examiner; and

(b) the Chief Commissioner; and

(c) the Director of Public Prosecutions; and

(d) if the direction under section 43(1) in relation to the restricted evidence involves the interests of a witness, the witness.

(6) The court may, by order, make the restricted evidence available to the Director of Public Prosecutions for the purpose of prosecuting a person for an offence if, after examining the restricted evidence and considering any submissions made under subsection (4), the court is satisfied that—

(a) there are reasonable grounds for the suspicion founding the application for the order; and

(b) the interests of justice require the evidence to be made so available.

(7) If restricted evidence is made available to the Director of Public Prosecutions under this section and a person is subsequently charged with an offence as a result, nothing in this Act prevents the Director of Public Prosecutions from making the evidence available to the person charged or a legal practitioner representing the person charged.




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court means the Supreme Court or the County Court.".

165 Warrant for arrest of witness


"(5) A person arrested under the warrant must be brought, as soon as practicable, before the Court and the Court may—

(a) discharge the person from custody on bail in accordance with the Bail Act 1977 as if the person had been accused of an offence; or

(b) order the continued detention of the person in a prison or police gaol for the purpose of ensuring the person's appearance as a witness before the Chief Examiner until the person has concluded giving evidence; or

(c) order that the person be discharged from custody unconditionally.".

(2) In section 46 of the Major Crime (Investigative Powers) Act 2004—

(a) subsection (7) is repealed;

(b) in subsection (8)—

(i) after "prison" insert "or police gaol";

(ii) for "subsection (5)(c)" substitute "subsection (5)(b)".

166 Contempt of Chief Examiner—removal of sunset

Sections 49(12) and 50(2) of the Major Crime (Investigative Powers) Act 2004 are repealed.

167 Delegation



143

After section 65(1) of the Major Crime (Investigative Powers) Act 2004 insert—

"(1A) The Chief Commissioner may, by instrument, delegate to a police officer of or above the rank of inspector a power of the Chief Commissioner under section 43B.".

168 Amendment of Criminal Procedure Act 2009

In the Criminal Procedure Act 2009—

(a) after section 110(d)(v) insert—

"(va) if a person has been examined under Part 4 of the Major Crime (Investigative Powers) Act 2004 and the informant intends to tender a record of that examination at the committal hearing, a transcript of the recording of the examination; and";

(b) in section 113(1), after "Part 8.2" insert "or of an examination under Part 4 of the Major Crime (Investigative Powers) Act 2004".

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PART 7—VARIATION OF ALCOHOL EXCLUSION ORDERS

169 Variation of alcohol exclusion orders

(1) After section 89DD(4) of the Sentencing Act 1991 insert—

"(5) When making an alcohol exclusion order, the Supreme Court may direct that any application for the variation of that order is to be made to the Magistrates' Court for determination.".

(2) For section 89DG(2) of the Sentencing Act 1991 substitute—

"(2) An application under subsection (1) must be made to the Magistrates' Court if—

(a) the order was made by the County Court or the Magistrates' Court; or

(b) the order was made by the Supreme Court and the Supreme Court has given a direction under section 89DD(5).".

(2A) For the purposes of subsection (2), the order made by the Supreme Court or County Court must be taken to have been made by the Magistrates' Court.

(2B) An application under subsection (1) must be made to the Supreme Court if—

(a) the order was made by the Supreme Court; and

(b) the Supreme Court has not given a direction under section 89DD(5).".

(3) After section 89DG(5) of the Sentencing Act 1991 insert—

"(6) An order of the Supreme Court or County Court that is varied by the Magistrates' Court under this section is taken for the purposes of



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enforcement to be an order of the Magistrates' Court.".


At the end of Part 12 of the Sentencing Act 1991 insert—

"153 Transitional provision—Criminal Organisations Control and Other Acts Amendment Act 2014—alcohol exclusion orders

The amendments made to this Act by Part 7 of the Criminal Organisations Control and Other Acts Amendment Act 2014 apply to the sentencing of a person on or after the commencement of that Part, irrespective of when the offence was committed or the conviction was recorded.".

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PART 8—MISCELLANEOUS AMENDMENTS

Division 1—Amendment of Criminal Procedure Act 2009

171 Schedule 3 amended

In Schedule 3 to the Criminal Procedure Act 2009, after item 23 insert—

"24 A general inspector within the meaning of the Prevention of Cruelty to Animals Act 1986.

24A A specialist inspector within the meaning of the Prevention of Cruelty to Animals Act 1986.".

Division 2—Amendment of Evidence (Miscellaneous Provisions) Act 1958

172 List of persons who may witness statutory declarations

In section 107A(1) of the Evidence (Miscellaneous Provisions) Act 1958—

(a) for paragraph (e) substitute—

"(e) the prothonotary or a deputy prothonotary of the Supreme Court, the registrar or a deputy registrar of the County Court, the principal registrar or a registrar or deputy registrar of the Magistrates' Court or the principal registrar or a registrar or deputy registrar of the Children's Court;";

(b) for paragraph (r) substitute—

"(r) a registered veterinary practitioner within the meaning of the Veterinary Practice Act 1997;";

s. 171

See:Act No.6246.Reprint No. 18as at27 March 2013and amending Act Nos 17/2014 and 37/2014.LawToday:www.legislation.vic.gov.au



147

(c) for paragraph (t) substitute—

"(t) a principal within the meaning of the Education and Training Reform Act 2006;";

(d) for paragraph (v) substitute—

"(v) a person who holds a prescribed membership of a prescribed accounting body or association;".

173 Affidavits in Victoria how sworn and taken

For section 123C(1)(d) of the Evidence (Miscellaneous Provisions) Act 1958 substitute—

"(d) the prothonotary or a deputy prothonotary of the Supreme Court, the registrar or a deputy registrar of the County Court, the principal registrar or a registrar or deputy registrar of the Magistrates' Court or the principal registrar or a registrar or deputy registrar of the Children's Court;".

Division 3—Amendment of Mental Health Act 2014

174 Definitions

In section 3(1) of the Mental Health Act 2014

insert the following definitions—

"designated place has the same meaning as in section 3(1) of the Victoria Police Act 2013;

protective services officer has the same meaning as in section 3(1) of the Victoria Police Act 2013;".

s. 173

See:Act No.26/2014.Statute Book:www.legislation.vic.gov.au



148

175 Apprehension of person by police officer or protective services officer

(1) In the heading to section 351 of the Mental Health Act 2014, after "police" insert "officer or protective services officer".

(2) In section 351(1) of the Mental Health Act 2014, for "A police officer may apprehend a person if the police officer" substitute "A police officer, or a protective services officer on duty at a designated place, may apprehend a person if the police officer or the protective services officer".

(3) In section 351(2) and (3) of the Mental Health Act 2014, after "police officer" insert "or a protective services officer".

(4) In section 351(4) of the Mental Health Act 2014, after "police officer" insert "or the protective services officer, as the case may be,".


"(4A) As soon as practicable after apprehending a person under this section, a protective services officer must—

(a) hand the person into the custody of a police officer; or

(b) for the purposes of enabling the person to be examined in accordance with section 30, arrange for the person to be taken to—

(i) a registered medical practitioner or mental health practitioner; or

(ii) a public hospital, denominational hospital, privately-operated hospital or public health service within the meaning of the Health Services Act 1988.".



149

(6) In section 351(5) of the Mental Health Act 2014, after "this section" insert "or being handed a person apprehended by a protective services officer under subsection (4A)(a)".


"(5A) A person apprehended under this section by a protective services officer is released from the custody of the protective services officer when—

(a) the person enters into the custody of a police officer; or

(b) if subsection (4A)(b)(i) applies, the person is made subject to an Assessment Order; or

(c) if subsection (4A)(b)(ii) applies, the person enters into the care of the public hospital, denominational hospital, privately-operated hospital or public health service within the meaning of the Health Services Act 1988.".

(8) In section 351(7) and (8)(b) of the Mental Health Act 2014, after "police officer" insert "or a protective services officer".

Division 4—Amendment of Open Courts Act 2013

176 Notice of applications for suppression orderss. 176

See:Act No.58/2013and amendingAct No.58/2013.LawToday:www.legislation.vic.gov.au



150

For section 10(1)(b) of the Open Courts Act 2013 substitute—

"(b) the parties on the record in the proceeding to which the application relates.".

177 Magistrates' Court may make order prohibiting publication of specified material

For section 26(1) of the Open Courts Act 2013 substitute—

"(1) The Magistrates' Court may make an order prohibiting the publication of any specified material, or any material of a specified kind, relevant to a proceeding that is pending in the Court if the Court is satisfied that—

(a) the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means; or

(b) the order is necessary in order to protect the safety of any person.".

Division 5—Amendment of Personal Safety Intervention Orders Act 2010


After section 16 of the Personal Safety Intervention Orders Act 2010 insert—

"16A Registrar must refuse to accept application

(1) If an application for a personal safety intervention order is made to the Magistrates' Court, a registrar must refuse to accept the

s. 177

See:Act No.53/2010and amendingAct Nos53/2010, 16/2011, 20/2011, 48/2011, 65/2011, 52/2013, 77/2013 and 37/2014.LawToday:www.legislation.vic.gov.au



151

application for filing if the registrar is satisfied that—

(a) the application is frivolous, vexatious, without substance, made in bad faith, has no reasonable prospect of success or is an abuse of process; or

(b) the matter would be more appropriately dealt with by mediation.

(2) Subsection (1) does not apply to an application for a personal safety intervention order made by a police officer or an application for a variation, revocation or extension of a personal safety intervention order.

(3) In determining whether to refuse to accept the application, the registrar must consider—

(a) whether the matter has been assessed for mediation or has been the subject of attempted mediation, and the outcome of the assessment or mediation; and

(b) whether the applicant has made a report of the matter to police; and

(c) whether the matter is inappropriate for mediation, having regard to any guidelines issued under subsection (4); and

(d) any other relevant matter.

(4) The Attorney-General may issue guidelines relating to matters to which registrars must have regard in determining whether to refuse to accept an application.

(5) Any guidelines issued under this section must be published on the Internet site of the Department of Justice.



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(6) On the application of a person whose application has been refused under subsection (1), the Magistrates' Court may direct the registrar to accept the application for filing.".

Division 6—Amendment of Summary Offences Act 1966

179 Requirement to give name and addresss. 179

See:Act No.7405.Reprint No. 11as at27 April 2012and amendingAct Nos27/2011, 5/2012, 26/2012, 27/2012, 32/2013, 70/2013, 77/2013, 15/2014, 26/2014 and 37/2014.LawToday:www.legislation.vic.gov.au

(1) In section 6B(1) of the Summary Offences Act 1966, before "who intends" insert "or a protective services officer".

(2) In section 6B(2) of the Summary Offences Act 1966—

(a) before "who makes" insert "or a protective services officer";

(b) before "intention" insert "or the protective services officer's".

(3) In section 6B(3) of the Summary Offences Act 1966, before "in accordance" insert "or a protective services officer".



153


(a) before "who made" insert "or the protective services officer";

(b) before "name" insert "or the protective services officer's".


(a) before "must not" insert "or a protective services officer";

(b) in paragraph (c), for "duty." substitute "duty; or";

(c) after paragraph (c) insert—

"(d) in the case of a protective services officer, state as the protective services officer's place of duty a location other than the police station or location of deployment of the protective services officer.".


(a) before "who made" insert "or the protective services officer";

(b) before "may request" insert "or the protective services officer".

(7) In section 6B(8) of the Summary Offences Act 1966, before "who made" insert "or the protective services officer".

Division 7—Amendment of Victorian Institute of Forensic Medicine Act 1985

180 The Councils. 180



154

See:Act No.10257.Reprint No. 7as at1 November 2009and amendingAct Nos13/2010, 31/2013, 70/2013 and 37/2014.LawToday:www.legislation.vic.gov.au

In section 67(2) of the Victorian Institute of Forensic Medicine Act 1985—

(a) in paragraph (k), for "Victoria." substitute "Victoria; and"; and

(b) after paragraph (k) insert—

"(l) one other person who has knowledge of, or experience in, accountancy or financial management.".

181 Members of the Council

After section 69(1) of the Victorian Institute of Forensic Medicine Act 1985 insert—

"(1A) A member of the Council referred to in section 67(2)(l) is to be appointed on the recommendation of the Attorney-General after receiving advice from the Chairperson.".

Division 8—Amendments relating to Victoria Police

182 Promotion of police officers and protective services officers

s. 182See:Act No.



155

81/2013and amendingAct Nos17/2014 and 37/2014Statute Book:www.legislation.vic.gov.au

In sections 31(1) and 40(1) of the Victoria Police Act 2013, after "higher rank" insert "in accordance with this Act and the regulations".

183 Unauthorised manufacture etc of Victoria Police identification or equipment

In section 255(3)(c) of the Victoria Police Act 2013 for "Commissioner" substitute "Chief Commissioner".

184 Subject matter for regulations

(1) For clause 2.9 of Schedule 5 to the Victoria Police Act 2013 substitute—

"2.9 The promotion and transfer of police officers and protective services officers.".

(2) In clause 5.8 of Schedule 5 to the Victoria Police Act 2013, for "handing" substitute "handling".

185 Transitional provisions

(1) In clause 37 of Schedule 6 to the Victoria Police Act 2013, for "to be" substitute "to be a".

(2) In clause 39 of Schedule 6 to the Victoria Police Act 2013, for "under this" substitute "person under this".



156

186 Consequential amendment of Corrections Act 1986

In section 78D(4) of the Corrections Act 1986, for "member of the police force" substitute "police officer".

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PART 9—REPEAL OF AMENDING ACT

187 Repeal of amending Act

This Act is repealed on 1 March 2016.Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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ENDNOTES

Endnotes


159

† Minister's second reading speech—

Legislative Assembly: 26 June 2014

Legislative Council: 7 August 2014

The long title for the Bill for this Act was "A Bill for an Act to amend the Confiscation Act 1997, the Criminal Organisations Control Act 2012, the Criminal Procedure Act 2009, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the Major Crime (Investigative Powers) Act 2004 and the Sentencing Act 1991, to make consequential and miscellaneous amendments to other Acts and for other purposes."