Victorian Bills Victorian Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Crimes (Amendment) Act 2004
Act No.
Victorian Legislation Parliamentary Documents
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
PART 2--AMENDMENT OF THE CRIMES ACT 1958 3
Division 1--Fingerprints 3
3. Definition inserted 3
4. Taking of fingerprints 3
5. Fingerscanning for identification purposes 3
6. Destruction of records 4
7. Records of juvenile 4
Division 2--Compulsory procedures 4
8. Definition inserted 4
9. Investigation of person already held for another matter 4
10. Forensic procedure on adult 5
11. Informed consent 5
12. New sections 464SA and 464SB inserted 6
464SA. Senior police officer may authorise non-intimate
compulsory procedure for certain adults 6
464SB. Making or refusing authorisation 8
13. Procedure for taking samples 10
14. Execution of authorisation 11
15. Forensic reports to be made available 13
16. Forensic procedure following finding of guilt 13
17. Retention of information following finding of guilt 14
18. Report to Attorney-General 14
19. Immunity of medical practitioners etc. 14
20. Supreme Court--limitation of jurisdiction 15
21. Validation 15
i
551167B.I1-14/5/2004 BILL LA CIRCULATION 14/5/2004
Clause Page
PART 3--AMENDMENT OF THE METROPOLITAN FIRE
BRIGADES ACT 1958 17
22. Deputy President 17
Victorian Legislation Parliamentary Documents
ENDNOTES 18
ii
551167B.I1-14/5/2004 BILL LA CIRCULATION 14/5/2004
PARLIAMENT OF VICTORIA
Initiated in Assembly 11 May 2004
Victorian Legislation Parliamentary Documents
A BILL
to amend the Crimes Act 1958 with respect to fingerprinting and
forensic procedures, to amend the Metropolitan Fire Brigades Act
1958 to provide for a Deputy President and for other purposes.
Crimes (Amendment) Act 2004
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The purposes of this Act are--
(a) to amend the Crimes Act 1958--
(i) to provide for the admissibility of
5
certain fingerscans in court
proceedings; and
1
551167B.I1-14/5/2004 BILL LA CIRCULATION 14/5/2004
Crimes (Amendment) Act 2004
Act No.
Part 1--Preliminary
s. 2
(ii) to provide for non-intimate compulsory
procedures to be conducted on the
authorisation of a senior police officer;
and
Victorian Legislation Parliamentary Documents
(iii) to validate certain orders purported to
5
have been made under section 464ZF
for the taking of forensic samples from
offenders; and
(iv) to clarify an offender's right to notice
and right to be heard on an application
10
under section 464ZF; and
(b) to amend the Metropolitan Fire Brigades
Act 1958 to provide for the appointment of a
Deputy President of the Metropolitan Fire
and Emergency Services Board.
15
2. Commencement
This Act comes into operation on the day after the
day on which it receives the Royal Assent.
__________________
2
551167B.I1-14/5/2004 BILL LA CIRCULATION 14/5/2004
Crimes (Amendment) Act 2004
Act No.
Part 2--Amendment of the Crimes Act 1958
s. 3
See:
PART 2--AMENDMENT OF THE CRIMES ACT 1958
Act No.
6321.
Reprint No. 17
Division 1--Fingerprints as at
Victorian Legislation Parliamentary Documents
17 June 2003
and
3. Definition inserted amending
Act Nos
In section 464(2) of the Crimes Act 1958 insert 63/2003,
the following definition--
5 80/2003,
104/2003 and
' "fingerscan" means fingerprints taken by means 105/2003.
LawToday:
of a device to obtain a record of the www.dms.
fingerprints; dpc.vic.
gov.au
Example
10 Fingerprints may be taken by a scanning device to
obtain a digital record of the fingerprints.'.
4. Taking of fingerprints
(1) After the heading to section 464N of the Crimes
Act 1958 insert--
"(1) Fingerprints may be taken by means of a
15
device to obtain a record of the fingerprints
(a fingerscan) or by any other means.".
(2) In section 464N of the Crimes Act 1958, before
"If--" insert "(2)".
5. Fingerscanning for identification purposes
20
(1) Section 464NA(1) of the Crimes Act 1958 is
repealed.
(2) In section 464NA(6) of the Crimes Act 1958,
after "fingerscan" insert "taken under this
section".
25
(3) In section 464NA(7) of the Crimes Act 1958,
after "fingerscan" insert "taken under this
section".
3
551167B.I1-14/5/2004 BILL LA CIRCULATION 14/5/2004
Crimes (Amendment) Act 2004
Act No.
Part 2--Amendment of the Crimes Act 1958
s. 6
6. Destruction of records
In section 464O(1) of the Crimes Act 1958, in the
definition of "fingerprints", after "464NA" insert
"or any other provision of this Subdivision".
Victorian Legislation Parliamentary Documents
7. Records of juvenile
5
In section 464P(1A) of the Crimes Act 1958,
after "464NA" insert "or any other provision of
this Subdivision".
Division 2--Compulsory procedures
8. Definition inserted
10
In section 464(2) of the Crimes Act 1958 insert
the following definition--
' "senior police officer" means a member of the
police force of or above the rank of senior
sergeant;'.
15
9. Investigation of person already held for another
matter
(1) In section 464B(5G) of the Crimes Act 1958--
(a) in paragraph (b), for "464C(1)." substitute
"464C(1); and";
20
(b) after paragraph (b) insert--
"(c) if the person was held in a prison or
police gaol at the time of the
application, that the making of the
order does not prevent a senior police
25
officer from authorising the conduct of
a non-intimate compulsory procedure
on the person under section 464SA.".
4
551167B.I1-14/5/2004 BILL LA CIRCULATION 14/5/2004
Crimes (Amendment) Act 2004
Act No.
Part 2--Amendment of the Crimes Act 1958
s. 10
(2) After section 464B(9) of the Crimes Act 1958
insert--
"(9A) The making of an order under sub-section (5)
does not prevent a senior police officer from
Victorian Legislation Parliamentary Documents
giving an authorisation under section
5
464SA.".
10. Forensic procedure on adult
In section 464R(2) of the Crimes Act 1958--
(a) in paragraph (b), for "464V(5)." substitute
"464V(5); or";
10
(b) after paragraph (b) insert--
"(c) a senior police officer gives an
authorisation under section 464SA.".
11. Informed consent
In section 464S(1) of the Crimes Act 1958--
15
(a) in paragraph (g), for "procedure." substitute
"procedure; and";
(b) after paragraph (g) insert--
"(h) where the sample or examination
sought may be obtained by a non-
20
intimate compulsory procedure within
the meaning of section 464SA and the
person refuses to consent to the
procedure, that a senior police officer
may authorise the conduct of the
25
procedure.".
5
551167B.I1-14/5/2004 BILL LA CIRCULATION 14/5/2004
Crimes (Amendment) Act 2004
Act No.
Part 2--Amendment of the Crimes Act 1958
s. 12
12. New sections 464SA and 464SB inserted
After section 464S of the Crimes Act 1958
insert--
Victorian Legislation Parliamentary Documents
'464SA. Senior police officer may authorise non-
intimate compulsory procedure for
5
certain adults
(1) In this section and section 464SB, "non-
intimate compulsory procedure" means
the taking of a non-intimate sample or the
conduct of a physical examination of a non-
10
intimate part of the body.
(2) A senior police officer who is not involved
in investigating the offence for which the
compulsory procedure is required may
authorise the conduct of a non-intimate
15
compulsory procedure on a person if the
senior police officer is satisfied that--
(a) the person is a relevant suspect who
is--
(i) under lawful arrest by warrant; or
20
(ii) under lawful arrest under section
458 or 459 or a provision of any
other Act; or
(iii) in the custody of an investigating
official in accordance with an
25
order of the Magistrates' Court
under section 464B(5) and, at the
time of the application for that
order, the person was held in a
prison or police gaol; and
30
(b) the person is not under the age of
17 years; and
(c) the person is not incapable of giving
informed consent by reason of mental
impairment; and
35
6
551167B.I1-14/5/2004 BILL LA CIRCULATION 14/5/2004
Crimes (Amendment) Act 2004
Act No.
Part 2--Amendment of the Crimes Act 1958
s. 12
(d) the person has refused to give consent
to a request under section 464R(1); and
(e) there are reasonable grounds to believe
that the person has committed the
Victorian Legislation Parliamentary Documents
offence in respect of which the
5
authorisation is sought; and
(f) the requirements of section 464T(3)(c),
(d), (e) and (f) are met; and
(g) in all the circumstances, the giving of
the authorisation is justified.
10
(3) A senior police officer must not give an
authorisation for a compulsory procedure on
a person if--
(a) an application to a court for an order
under this Subdivision in respect of that
15
person has been made in relation to the
same matter and on the same grounds
but has been refused; or
(b) a previous application for an
authorisation under this section in
20
respect of that person has been
considered in relation to the same
matter and on the same grounds but has
not been given.
(4) An authorisation given in contravention of
25
sub-section (3) is void.
(5) Nothing in sub-section (3) prevents a later
application for an order under this
Subdivision or an authorisation under this
section on different or further grounds.
30
(6) An authorisation under this section may only
be given to a member of the police force.
7
551167B.I1-14/5/2004 BILL LA CIRCULATION 14/5/2004
Crimes (Amendment) Act 2004
Act No.
Part 2--Amendment of the Crimes Act 1958
s. 12
464SB. Making or refusing authorisation
(1) Before a senior police officer gives or
refuses to give an authorisation under
section 464SA, the senior police officer
Victorian Legislation Parliamentary Documents
must allow the suspect or the suspect's legal
5
practitioner, if any, a reasonable opportunity,
if practicable in person, to inform the senior
police officer whether there is any reason
why the non-intimate compulsory procedure
should not be conducted.
10
(2) An authorisation under section 464SA must
be made in writing signed by the senior
police officer giving it and include--
(a) the date and time when the
authorisation is given; and
15
(b) the grounds for giving the
authorisation; and
(c) the type of sample or examination
authorised.
(3) The senior police officer must give, or cause
20
another member of the police force to give,
to the suspect a copy of the authorisation as
soon as practicable after the authorisation is
made and, in any event, before the conduct
of the compulsory procedure.
25
(4) Before the compulsory procedure is
conducted, a member of the police force
must inform the suspect orally and in person
of the following--
(a) that an authorisation under section
30
464SA has been given; and
(b) the matters referred to in sub-section
(2)(a), (b) and (c); and
8
551167B.I1-14/5/2004 BILL LA CIRCULATION 14/5/2004
Crimes (Amendment) Act 2004
Act No.
Part 2--Amendment of the Crimes Act 1958
s. 12
(c) that a member of the police force may
use reasonable force to enable the
compulsory procedure to be conducted;
and
Victorian Legislation Parliamentary Documents
(d) if the authorisation is to take a sample
5
of hair, that the suspect may elect to
provide instead a scraping taken by the
suspect from his or her mouth, if it is
considered appropriate to do so.
(5) The person who gives the information
10
required to be given by sub-section (4)
must--
(a) record, or cause to be recorded, the
giving of that information by tape-
recording; and
15
(b) give or send by registered post, or cause
to be given or sent by registered post, to
the suspect or his or her legal
practitioner, without charge, a copy of
the tape-recording as soon as
20
practicable, but not more than 7 days
after the conduct of the compulsory
procedure.
(6) If a senior police officer refuses to give an
authorisation under section 464SA in respect
25
of a suspect, the senior police officer must--
(a) inform, or cause another member of the
police force to inform, the suspect
orally of the decision as soon as
practicable after the refusal; and
30
(b) give written notice of the decision to
the suspect within 7 days after the
refusal.
9
551167B.I1-14/5/2004 BILL LA CIRCULATION 14/5/2004
Crimes (Amendment) Act 2004
Act No.
Part 2--Amendment of the Crimes Act 1958
s. 13
(7) A failure of the senior police officer or a
member of the police force to comply with
this section does not invalidate any
authorisation made by the senior police
Victorian Legislation Parliamentary Documents
officer but constitutes non-compliance for
5
the purposes of section 464ZE(1)(a).'.
13. Procedure for taking samples
(1) After section 464Z(3) of the Crimes Act 1958
insert--
"(3AA) Despite sub-section (3), a person from whom
10
a sample of hair, other than pubic hair, is to
be taken in accordance with--
(a) an authorisation given under section
464SA; or
(b) an order made by a court under this
15
Subdivision--
may elect to provide instead a scraping taken
by the person from his or her mouth if a
member of the police force authorised in
accordance with sub-section (1A) considers
20
that--
(c) a scraping is appropriate in the
circumstances; and
(d) it is appropriate for the person to take
the scraping.
25
(3AB) An election made by a person under sub-
section (3AA) must be recorded by tape-
recording or in writing signed by the
person.".
10
551167B.I1-14/5/2004 BILL LA CIRCULATION 14/5/2004
Crimes (Amendment) Act 2004
Act No.
Part 2--Amendment of the Crimes Act 1958
s. 14
(2) In section 464Z(3B) of the Crimes Act 1958--
(a) after "sub-section" insert "(3AA) or";
(b) in paragraph (a)--
Victorian Legislation Parliamentary Documents
(i) before "consent" (where first occuring)
insert "election or";
5
(ii) before "consent" (where secondly
occurring) insert "election is made or
the";
(c) in paragraph (b), before "consent" insert
"election or".
10
(3) In section 464Z(4) of the Crimes Act 1958, after
"taken" (where first occurring) insert "(except a
scraping from a person's mouth to be taken by that
person)".
(4) After section 464Z(7) of the Crimes Act 1958
15
insert--
"(7A) For the purposes of this Subdivision, a
person is authorised to take a sample of hair
by removing the root of the hair only if--
(a) the person takes only so much hair as
20
the person believes is necessary for
analysis of the sample or other
examination of the hair; and
(b) strands of hair are taken using the least
painful technique known and available
25
to the person.".
14. Execution of authorisation
(1) Insert the following heading to section 464ZA of
the Crimes Act 1958--
"Execution of authorisation or order".
30
11
551167B.I1-14/5/2004 BILL LA CIRCULATION 14/5/2004
Crimes (Amendment) Act 2004
Act No.
Part 2--Amendment of the Crimes Act 1958
s. 14
(2) For section 464ZA(1) of the Crimes Act 1958
substitute--
"(1) If--
Victorian Legislation Parliamentary Documents
(a) a senior police officer gives an
authorisation under section 464SA for
5
the conduct of a non-intimate
compulsory procedure; or
(b) a court makes an order under section
464T(3), 464U(7) or 464V(5) for the
conduct of a compulsory procedure; or
10
(c) a court makes an order under section
464ZF for the conduct of a forensic
procedure--
a member of the police force, with such
assistance as he or she considers necessary,
15
may use reasonable force to assist a medical
practitioner, nurse, dentist or person
authorised under section 464Z to conduct the
procedure.".
(3) In section 464ZA(5) of the Crimes Act 1958,
20
after "in accordance with" insert "the
authorisation of a senior police officer or".
(4) In section 464ZA(6) of the Crimes Act 1958--
(a) after "After" insert "an authorisation under
section 464SA or";
25
(b) in paragraphs (a) and (b), after "must endorse
on the" insert "authorisation or".
(5) In section 464ZA(6A) of the Crimes Act 1958,
after "copy of the" insert "authorisation or".
12
551167B.I1-14/5/2004 BILL LA CIRCULATION 14/5/2004
Crimes (Amendment) Act 2004
Act No.
Part 2--Amendment of the Crimes Act 1958
s. 15
(6) In section 464ZA(7) of the Crimes Act 1958--
(a) after "in accordance with" insert "an
authorisation of a senior police officer or";
Victorian Legislation Parliamentary Documents
(b) after "applicant for the" insert "authorisation
or".
5
15. Forensic reports to be made available
In section 464ZD of the Crimes Act 1958, after
"464R," insert "464SA,".
16. Forensic procedure following finding of guilt
For section 464ZF(5) of the Crimes Act 1958
10
substitute--
"(5) If, on or after the commencement of the
Crimes (Amendment) Act 2004, an
application under sub-section (2) or (3) is
made in respect of a person aged 17 years or
15
more--
(a) the application may be made without
notice to any person; and
(b) the person is not a party to the
application; and
20
(c) the person may not call or cross-
examine any witnesses; and
(d) the person may not address the court,
other than in response to inquiries made
by the court under sub-section (8)(c).
25
(5A) If, on or after the commencement of the
Crimes (Amendment) Act 2004, an
application under sub-section (2) or (3) is
made in respect of a child--
(a) notice of the application must be served
30
on the child and a parent or guardian of
the child; and
13
551167B.I1-14/5/2004 BILL LA CIRCULATION 14/5/2004
Crimes (Amendment) Act 2004
Act No.
Part 2--Amendment of the Crimes Act 1958
s. 17
(b) the child is not a party to the
application; and
(c) the child may not call or cross-examine
any witnesses; and
Victorian Legislation Parliamentary Documents
(d) the child may not address the court,
5
other than in respect of any matter
referred to in sub-section (8)(a) or (b)
or in response to inquiries made by the
court under sub-section (8)(c).
(5B) In exercising the right of address under sub-
10
section (5A)(d), a child may be represented
by a legal practitioner, or, with the leave of
the court, a parent or guardian of the child.".
17. Retention of information following finding of guilt
In section 464ZFB(1)(a) of the Crimes Act 1958,
15
after "464R," insert "464SA,".
18. Report to Attorney-General
In section 464ZFE of the Crimes Act 1958--
(a) in paragraph (d), for "it." substitute "it;
and";
20
(b) after paragraph (d) insert--
"(e) the number of authorisations given
under section 464SA within the period
to which the report relates; and
(f) the number of authorisations refused to
25
be given under section 464SA within
the period to which the report relates.".
19. Immunity of medical practitioners etc.
For section 464ZH(a) of the Crimes Act 1958
substitute--
30
"(a) was requested to be conducted on another
person under this Subdivision in accordance
with--
14
551167B.I1-14/5/2004 BILL LA CIRCULATION 14/5/2004
Crimes (Amendment) Act 2004
Act No.
Part 2--Amendment of the Crimes Act 1958
s. 20
(i) a request of a member of the police
force given under section 464R; or
(ii) an authorisation given by a senior
police officer under section 464SA; or
Victorian Legislation Parliamentary Documents
(iii) an order made by a court under this
5
Subdivision; or".
20. Supreme Court--limitation of jurisdiction
At the end of section 464ZI of the Crimes Act
1958 insert--
"(2) It is the intention of section 464ZH as
10
amended by section 19 of the Crimes
(Amendment) Act 2004 to alter or vary
section 85 of the Constitution Act 1975.".
21. Validation
After section 464ZL(2) of the Crimes Act 1958
15
insert--
"(3) An order purporting to have been made
under section 464ZF(2) before the
commencement of the Crimes
(Amendment) Act 2004 in respect of a
20
person is not invalid only because the person
was not given--
(a) notice of the application for the order;
or
(b) an opportunity to be heard on the
25
application.
(4) An order purporting to have been made
under section 464ZF(3) before the
commencement of the Crimes
(Amendment) Act 2004 in respect of a
30
person aged 17 years or more is not invalid
only because the person was not given--
(a) notice of the application for the order;
or
15
551167B.I1-14/5/2004 BILL LA CIRCULATION 14/5/2004
Crimes (Amendment) Act 2004
Act No.
Part 2--Amendment of the Crimes Act 1958
s. 21
(b) an opportunity to be heard on the
application.
(5) Sub-section (4) does not affect the rights of
the parties in the proceeding known as Pavic
Victorian Legislation Parliamentary Documents
v. Magistrates' Court of Victoria and Chief
5
Commissioner of Police (No. 1001 of 2002)
in the Supreme Court of Victoria.".
__________________
16
551167B.I1-14/5/2004 BILL LA CIRCULATION 14/5/2004
Crimes (Amendment) Act 2004
Act No.
Part 3--Amendment of the Metropolitan Fire Brigades Act 1958
s. 22
See:
PART 3--AMENDMENT OF THE METROPOLITAN FIRE Act No.
6315.
BRIGADES ACT 1958
Reprint No. 9
as at
22. Deputy President
Victorian Legislation Parliamentary Documents
3 November
2003 and
(1) After section 9(2) of the Metropolitan Fire amending
Act No.
Brigades Act 1958 insert--
5 50/1989.
LawToday:
"(3) Another of the members is to be appointed as www.dms.
dpc.vic.
Deputy President of the Board.". gov.au
(2) For section 18(2) of the Metropolitan Fire
Brigades Act 1958 substitute--
"(2) The President or, in the absence of the
10
President, the Deputy President must preside
at a meeting of the Board at which he or she
is present.".
(3) In section 18(3) of the Metropolitan Fire
Brigades Act 1958, for "the President is not
15
present" substitute "neither the President nor the
Deputy President is present".
17
551167B.I1-14/5/2004 BILL LA CIRCULATION 14/5/2004
Crimes (Amendment) Act 2004
Act No.
Endnotes
ENDNOTES
Victorian Legislation Parliamentary Documents
By Authority. Government Printer for the State of Victoria.
18
551167B.I1-14/5/2004 BILL LA CIRCULATION 14/5/2004
[Index] [Search] [Download] [Related Items] [Help]