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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Criminal Law Amendment (Simple Offences)
Bill 2004
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- The Criminal Code amended
3. The Criminal Code amended 3
4. Section 1 amended 3
5. Sections 63 to 67 replaced 4
6. Sections 70A and 70B inserted 5
7. Section 74A inserted 7
8. Section 85 amended 8
9. Section 87 replaced 8
10. Chapter XIV replaced 9
11. Sections 136 and 137 replaced 19
12. Section 138 replaced 19
13. Sections 145 and 146 replaced 20
14. Section 148 replaced 21
15. Section 171 inserted 21
16. Section 172 replaced 23
17. Section 186 amended 23
18. Section 190 inserted 23
19. Section 191 amended and Evidence Act 1906
consequentially amended 25
20. Section 192 amended 25
21. Sections 202, 203 and 204 replaced 26
22. Section 206 inserted 27
341--2 page i
Criminal Law Amendment (Simple Offences) Bill 2004
Contents
23. Sections 209 and 213 repealed and consequential
amendment 28
24. Sections 339 to 342 repealed and consequential
amendment 28
25. Section 390A inserted 28
26. Section 390B repealed 29
27. Heading to Chapter XLIV replaced 29
28. Sections 428 to 435 replaced 30
29. Sections 439 and 440 repealed 31
30. Section 440A replaced 31
31. Sections 445 and 446 inserted 32
32. Section 557 amended 34
33. Chapter LVIIA inserted 34
34. "Misdemeanour" changed to "crime" 41
35. Summary conviction penalties, changes to 42
36. Amendments about alternative verdicts and
Interpretation Act 1984 consequentially amended 47
37. Chapter XI (if not amended by Criminal Code
Amendment (Racial Vilification) Act 2004) amended 55
38. Amendments to Code if Criminal Code Amendment
(Racial Vilification) Act 2004 comes into operation 56
39. Amendments to Code if Oaths, Affidavits and
Statutory Declarations (Consequential Provisions)
Act 2004 comes into operation 57
Part 3 -- Police Act 1892 amended
Division 1 -- Amendments
40. The Act amended in this Division 58
41. Section 16 replaced 58
42. Section 18 repealed 59
43. Section 20 repealed 59
44. Section 34 amended 59
45. Section 41 amended 59
46. Section 42 amended 59
47. Section 43 amended 60
48. Section 44 amended 60
49. Section 45 amended 60
50. Section 46 repealed 61
51. Section 47 repealed 61
52. Section 50 inserted 61
page ii
Criminal Law Amendment (Simple Offences) Bill 2004
Contents
53. Section 51 amended 63
54. Section 52 repealed 63
55. Heading to Part VI deleted 63
56. Heading to Part VI Division 1 deleted 63
57. Sections 54 to 67A repealed 63
58. Section 67B repealed 63
59. Section 69 repealed 63
60. Section 71 repealed 64
61. Heading inserted 64
62. Section 74 amended 64
63. Sections 76A to 76I repealed 64
64. Sections 79A to 84 repealed 64
65. Heading to Part VI Division 7 deleted 64
66. Sections 90 and 90A repealed 64
67. Section 90B amended 64
68. Part VII repealed 65
69. Section 122 repealed 65
70. Sections 125 and 126 repealed 65
71. Sections 133 and 134 repealed 65
72. Second Schedule repealed 65
Division 2 -- Transitional provisions
73. Repealed offences may be investigated etc. 65
Part 4 -- Public Meetings and
Processions Act 1984 amended
74. Act amended by this Part 67
75. Long title replaced 67
76. Short title amended 67
77. Section 4 amended 67
78. Section 9A inserted 68
79. Section 12 repealed 68
Part 5 -- Constitution Acts Amendment
Act 1899 amended
80. Act amended by this Part 69
81. Section 32 amended and saving provision 69
Part 6 -- Various Acts amended
82. Various Acts amended (Sch. 1) 71
page iii
Criminal Law Amendment (Simple Offences) Bill 2004
Contents
Schedule 1 -- Various Acts amended 72
1. Aboriginal Affairs Planning Authority Act 1972 72
2. Anatomy Act 1930 72
3. Boxing Control Act 1987 72
4. Builders' Registration Act 1939 72
5. Community Services Act 1972 72
6. Companies (Co-operative) Act 1943 72
7. Co-operative and Provident Societies Act 1903 73
8. Corruption and Crime Commission Act 2003 73
9. Country Towns Sewerage Act 1948 73
10. Dental Act 1939 73
11. Energy Operators (Powers) Act 1979 74
12. Evidence Act 1906 74
13. Forrest Place and City Station Development Act 1985 74
14. Gaming and Wagering Commission Act 1987 74
15. Licensed Surveyors Act 1909 74
16. Life Assurance Companies Act 1889 74
17. Limited Partnerships Act 1909 75
18. Liquor Licensing Act 1988 75
19. Medical Act 1894 75
20. Mining Act 1978 75
21. Optometrists Act 1940 75
22. Parliamentary Privileges Act 1891 75
23. Pharmacy Act 1964 75
24. Pig Industry Compensation Act 1942 76
25. Prostitution Act 2000 76
26. Public Transport Authority Act 2003 76
27. Road Traffic Act 1974 76
28. Street Alignment Act 1844 76
29. Sunday Entertainments Act 1979 76
30. Trustee Ordinance 1854 77
31. Trustees Act 1962 77
32. Veterinary Preparations and Animal Feeding Stuffs
Act 1976 77
33. Water Boards Act 1904 77
34. Wildlife Conservation Act 1950 77
page iv
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during consideration in detail)
Criminal Law Amendment (Simple Offences)
Bill 2004
A Bill for
An Act to amend --
· The Criminal Code;
· the Police Act 1892;
· the Public Meetings and Processions Act 1984;
· the Constitution Acts Amendment Act 1899,
and various other Acts and for related matters.
The Parliament of Western Australia enacts as follows:
page 1
Criminal Law Amendment (Simple Offences) Bill 2004
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Criminal Law Amendment (Simple
Offences) Act 2004.
5 2. Commencement
(1) Subject to subsections (4) and (5), this Act comes into operation
on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
10 (3) For the purposes of subsection (2), each amendment in a Table
to a provision of this Act or in a Schedule to this Act is to be
taken to be a separate provision of this Act.
(4) A provision of section 37 is not to come into operation if the
Criminal Code Amendment (Racial Vilification) Act 2004 has
15 come into operation.
(5) A provision of section 38 is not to come into operation before
the day on which the Criminal Code Amendment (Racial
Vilification) Act 2004 comes into operation and, if such a
provision comes into operation on that day, it comes into
20 operation immediately after that Act comes into operation.
(6) Despite section 2 of the Criminal Code Amendment (Racial
Vilification) Act 2004, section 6 of that Act is not to come into
operation if section 36(11) of this Act has come into operation.
(7) A provision of section 39 is not to come into operation before
25 the day on which Part 6 of the Oaths, Affidavits and Statutory
Declarations (Consequential Provisions) Bill 2004 comes into
operation and, if such a provision comes into operation on that
day, it comes into operation immediately after that Part comes
into operation.
page 2
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 3
Part 2 -- The Criminal Code amended
3. The Criminal Code amended
The amendments in this Part are to The Criminal Code*.
[* Reprint 11 as at 3 September 2004 (see the Schedule to the
5 Criminal Code Act 1913 appearing as Appendix B to the
Criminal Code Compilation Act 1913).]
4. Section 1 amended
(1) Section 1(1) is amended in the definition of the term "public
officer" as follows:
10 (a) by deleting "a person exercising authority under a
written law, and includes -- " and inserting instead --
" any of the following -- ";
(b) by inserting after paragraph (ac) the following
paragraph --
15 "
(ad) a person exercising authority under a written
law;
";
(c) by deleting "or" after paragraph (d).
20 (2) Section 1(1) is amended by inserting in the appropriate
alphabetical positions --
"
The term "public place" includes --
(a) a place to which the public, or any section of
25 the public, has or is permitted to have access,
whether on payment or otherwise;
(b) a privately owned place to which the public
has access with the express or implied
approval of, or without interference from, the
30 owner, occupier or person who has the
control or management of the place; and
page 3
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 5
(c) a school, university or other place of
education, other than a part of it to which
neither students nor the public usually have
access;
5 ".
5. Sections 63 to 67 replaced
Sections 63 to 67 are repealed and the following sections are
inserted instead --
"
10 63. Taking part in an unlawful assembly
Any person who takes part in an unlawful assembly is
guilty of an offence and is liable to imprisonment for
12 months and a fine of $12 000.
64. Unlawful assembly may be ordered to disperse
15 (1) If 3 or more persons form an unlawful assembly, a
justice or a police officer may orally order them to
disperse within a time that is reasonable and that is
stated in the order.
(2) Any person who does not disperse in accordance with
20 an order given under subsection (1) is guilty of a crime
and is liable to imprisonment for 3 years.
Summary conviction penalty: imprisonment for 2 years
and a fine of $24 000.
65. Taking part in a riot
25 Any person who takes part in a riot is guilty of a crime
and is liable to imprisonment for 5 years.
Summary conviction penalty: imprisonment for 2 years
and a fine of $24 000.
page 4
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 6
66. Rioters may be ordered to disperse
(1) If 12 or more persons are riotously assembled, a justice
or a police officer may orally order them to disperse
within a time that is reasonable and that is stated in the
5 order.
(2) Any person who does not disperse in accordance with
an order given under subsection (1) is guilty of a crime.
(3) Any person who forcibly prevents a person from giving
an order under subsection (1) is guilty of a crime.
10 (4) If 12 or more persons are riotously assembled, each
person who continues to be so assembled knowing that
a person has been forcibly prevented from ordering
them to disperse is guilty of a crime.
(5) A person who is guilty of a crime under this section is
15 liable to imprisonment for 10 years.
67. Rioters causing damage
(1) If as a result of persons being riotously assembled any
property is unlawfully destroyed or damaged, each
person among those so assembled is guilty of a crime
20 and is liable to imprisonment for 10 years.
(2) If the property is destroyed or damaged by fire, each
person is liable to imprisonment for 14 years.
".
6. Sections 70A and 70B inserted
25 After section 70 the following sections are inserted --
"
70A. Trespass
(1) In this section --
"person in authority", in relation to a place, means --
30 (a) in the case of a place owned by the Crown,
or an agency or instrumentality of the
page 5
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 6
Crown -- the occupier or person having
control or management of the place or a
police officer; or
(b) in any other case --
5 (i) the owner, occupier or person having
control or management of the place; or
(ii) a police officer acting on a request by a
person referred to in subparagraph (i);
"police officer" means a person who holds an
10 appointment under Part I, III or IIIA of the Police
Act 1892, other than a police cadet;
"trespass" on a place, means --
(a) to enter or be in the place without the
consent of the owner, occupier or person
15 having control or management of the place;
(b) to remain in the place after being requested
by a person in authority to leave the place; or
(c) to remain in a part of the place after being
requested by a person in authority to leave
20 that part of the place.
(2) A person who, without lawful excuse, trespasses on a
place is guilty of an offence and is liable to
imprisonment for 12 months and a fine of $12 000.
(3) In a prosecution for an offence under subsection (2),
25 the accused has the onus of proving that the accused
had a lawful excuse.
70B. Trespassers may be asked for name and address
(1) In this section --
"enclosed land" means land that is visibly enclosed,
30 whether by means of artificial structures alone or a
combination of artificial structures and natural
page 6
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 7
features, but does not include a road on the land
that is open to or used by the public;
"owner", in relation to land, includes the occupier and
a person who has the control or management of the
5 land.
(2) If the owner of any enclosed land finds a person on the
land who has entered the land without the owner's
consent, the owner may request the person to give the
person's name and address to the owner.
10 (3) A person who does not comply with such a request is
guilty of an offence and is liable to a fine of $500.
(4) A person who in response to such a request gives a
name or address that is false is guilty of an offence and
is liable to a fine of $500.
15 ".
7. Section 74A inserted
After section 74 the following section is inserted in
Chapter IX --
"
20 74A. Disorderly behaviour in public
(1) In this section --
"behave in a disorderly manner" includes --
(a) to use insulting, offensive or threatening
language; and
25 (b) to behave in an insulting, offensive or
threatening manner.
(2) A person who behaves in a disorderly manner --
(a) in a public place or in the sight or hearing of
any person who is in a public place; or
30 (b) in a police station or lock-up,
is guilty of an offence and is liable to a fine of $6 000.
page 7
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 8
(3) A person who has the control or management of a
place where food or refreshments are sold to or
consumed by the public and who permits a person to
behave in a disorderly manner in that place is guilty of
5 an offence and is liable to a fine of $4 000.
(4) It is lawful for any person to arrest without warrant any
person who is, or whom the person suspects, on
reasonable grounds, to be, in the course of committing
an offence under this section.
10 ".
8. Section 85 amended
Section 85 is amended by inserting after "who" --
"
, in the performance or discharge of the functions of his
15 office or employment,
".
9. Section 87 replaced
Section 87 is repealed and the following section is inserted
instead --
20 "
87. Impersonating a public officer
(1) For the purposes of this section a person impersonates
a public officer if the person --
(a) wears what is or purports to be the uniform of a
25 public officer; or
(b) represents himself or herself by word or
conduct to be a public officer,
when the person is not such a public officer.
page 8
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 10
(2) A person who impersonates a public officer and
who --
(a) purports to do or exercise; or
(b) attends any place for the purposes of doing or
5 exercising,
any act or power of such a public officer is guilty of a
crime and is liable to imprisonment for 2 years.
Summary conviction penalty: imprisonment for
12 months and a fine of $12 000.
10 (3) For the purposes of subsection (2) it is immaterial
whether the power referred to exists at law.
(4) An allegation in a charge of an offence under this
section that at the material time the accused was not a
public officer, or not a public officer of the kind that
15 the accused is alleged to have impersonated, must be
taken to be proved, unless the contrary is proved.
".
10. Chapter XIV replaced
Chapter XIV is repealed and the following chapter is inserted
20 instead --
"
Chapter XIV -- Offences at elections
93. Interpretation
In this Chapter --
25 "election" includes an election held under a written
law that provides for the choice of persons to fill a
public office;
"elector" includes any person entitled to vote in an
election;
page 9
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 10
"electoral conduct" means --
(a) candidature in an election;
(b) withdrawal of candidature from an election;
(c) a vote, or an omission to vote, in an election;
5 (d) support of, or opposition to, a candidate in an
election; or
(e) an application for a postal vote in an
election;
"electoral officer" means a person who is authorised
10 to conduct or assist in conducting an election.
94. Application of this Chapter
This Chapter does not apply to or in respect of
parliamentary or local government elections.
95. Liability for acts of others
15 (1) For the purposes of this Chapter, the act of a
candidate's authorised agent is to be taken to be the act
of the candidate unless the candidate proves --
(a) that the act was committed without the
candidate's knowledge or consent; and
20 (b) that the candidate had neither directly nor
indirectly authorised or approved the act.
(2) For the purposes of this Chapter, a person is liable for
an illegal act or omission committed directly or
indirectly by the person, or by another person on the
25 person's behalf, except as provided by subsection (1).
96. Bribery
(1) In this section --
"reward" means a reward in the form of property or
any kind of advantage, benefit, consideration or
30 recompense.
page 10
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 10
(2) A person who --
(a) promises, offers or suggests a reward for, or on
account of, or to induce, electoral conduct or a
promise of electoral conduct; or
5 (b) gives, takes or seeks a reward for, or on account
of, electoral conduct or a promise of electoral
conduct,
is guilty of an offence and is liable to imprisonment for
2 years and a fine of $24 000.
10 (3) The making of a declaration of public policy or a
promise of public action does not give rise to an
offence under this section.
97. Undue influence
(1) In this section --
15 "detriment" means violence, injury, punishment,
damage, loss or disadvantage.
(2) A person who --
(a) threatens, offers or suggests detriment for, or on
account of, or to induce, electoral conduct or a
20 promise of electoral conduct;
(b) uses, causes, inflicts or procures detriment for,
or on account of, electoral conduct; or
(c) interferes with the free exercise of the franchise
of an elector,
25 is guilty of an offence and is liable to imprisonment for
12 months and a fine of $12 000.
(3) The making of a declaration of public policy or a
promise of public action does not give rise to an
offence under this section.
page 11
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 10
98. Electoral material, printing and publication of
(1) In this section --
"electoral material" means any advertisement, article,
handbill, letter, notice, pamphlet, placard or poster
5 the purpose of which is to influence voters in an
election but does not include --
(a) a newspaper advertisement announcing the
holding of a meeting;
(b) articles of apparel, lapel buttons, lapel
10 badges, pens, pencils or balloons;
(c) business or visiting cards that promote the
candidacy of any person in an election;
(d) letters or cards that --
(i) bear the name and address of the sender;
15 and
(ii) do not contain a representation or
purported representation of a ballot
paper for use in an election;
"print" includes to photocopy and to reproduce by any
20 means;
"publish" electoral material, includes to distribute it
and to publish it by radio, television or electronic
means.
(2) A person who prints or publishes electoral material, or
25 who causes electoral material to be printed or
published, is guilty of an offence and is liable to a fine
of $2 000 unless there appears at the end of the
material --
(a) the name and address (not being a post office
30 box or email address) of the person who
authorised the material; and
(b) the name and address (not being a post office
box or email address) of the publisher.
page 12
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 10
99. False or defamatory statements or deceptive
material, publication of
(1) In this section --
"deceptive material" means any matter or thing that is
5 likely to mislead or deceive an elector about how
to vote or for whom to vote in an election;
"print" includes to photocopy and to reproduce by any
means;
"publish" any material or statement, includes to
10 distribute it and to publish it by radio, television or
electronic means;
"relevant period" of an election, means the period
beginning when nominations for the election are
first officially invited and ending when the
15 entitlement to vote in the election ceases.
(2) If during the relevant period of an election deceptive
material is published, a person who made or who
authorised the publishing of the material is guilty of an
offence and is liable to imprisonment for 12 months
20 and a fine of $12 000.
(3) It is a defence to a charge of an offence under
subsection (2) to prove the accused did not know, and
could not reasonably have been expected to know, that
the material was deceptive material.
25 (4) If during the relevant period of an election a false or
defamatory statement in relation to the personal
character or conduct of a candidate in the election is
published, a person who made or who authorised the
publishing of the statement is guilty of an offence and
30 is liable to imprisonment for 12 months and a fine of
$12 000.
(5) It is a defence to a charge of an offence under
subsection (4) to prove the accused believed the
page 13
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 10
statement to be true and had reasonable grounds for
doing so.
100. Postal voting, offences in connection with
A candidate in an election who --
5 (a) interferes with an elector while the elector is
applying for a postal vote in the election;
(b) communicates or interferes with or assists an
elector in the process of completing and
lodging a postal vote in the election; or
10 (c) takes custody of, or causes any other person
other than the elector to take custody of, an
envelope in which there is an elector's postal
vote in the election,
is guilty of an offence and is liable to imprisonment for
15 12 months and a fine of $12 000.
101. Polling place, offences at or near
(1) A person who is in, or within 6 metres from an
entrance to, a polling place on a polling day in an
election and who --
20 (a) canvasses for votes in the election;
(b) solicits the vote of an elector in the election;
(c) attempts to induce an elector not to vote in the
election; or
(d) attempts to induce an elector not to vote for a
25 particular candidate in the election,
is guilty of an offence and is liable to a fine of $2 000.
(2) A person who, at a polling place or at a place where the
votes cast in an election are being counted --
(a) interrupts, disturbs or obstructs proceedings in
30 the place;
page 14
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 10
(b) disobeys the reasonable instructions of an
electoral officer; or
(c) wilfully destroys, damages or removes a notice
or other document that an electoral officer,
5 acting within the scope of his or her authority,
has displayed or caused to be displayed,
is guilty of an offence and is liable to a fine of $2 000.
(3) A person who, while an elector is in a compartment or
booth for the purpose of marking a ballot paper --
10 (a) unlawfully enters the compartment or booth;
(b) unlawfully communicates with the elector; or
(c) unlawfully assists the elector in marking the
ballot paper,
is guilty of an offence and is liable to imprisonment for
15 12 months and a fine of $12 000.
(4) Subsection (3) does not apply to a person who, with the
permission of an electoral officer --
(a) having been nominated by the elector to do so,
assists an elector who is illiterate or who is so
20 disabled as to be unable to vote without
assistance; or
(b) is present to witness the person assisting the
elector.
102. Voting offences
25 (1) A person who votes in an election in the knowledge
that he or she is not entitled to vote in the election is
guilty of an offence and is liable to imprisonment for
12 months and a fine of $12 000.
(2) A person who, in the knowledge that another person is
30 not entitled to vote in the election, procures that person
to vote in the election, is guilty of an offence and is
page 15
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 10
liable to imprisonment for 12 months and a fine of
$12 000.
(3) A person who personates an elector is guilty of an
offence and is liable to imprisonment for 12 months
5 and a fine of $12 000.
(4) A person who votes more often in an election than the
person is entitled is guilty of an offence and is liable to
imprisonment for 12 months and a fine of $12 000.
(5) A person who is entitled to cast more than one vote in
10 an election and who casts more votes in the election
than the person is entitled to cast is guilty of an offence
and is liable to imprisonment for 12 months and a fine
of $12 000.
103. Ballot paper and ballot box offences
15 (1) A person who --
(a) forges a ballot paper;
(b) fraudulently damages or destroys a ballot
paper;
(c) fraudulently puts a ballot paper in a ballot box;
20 or
(d) wilfully and without authority destroys, takes,
opens or otherwise interferes with a ballot
paper or ballot box,
is guilty of an offence and is liable to imprisonment for
25 12 months and a fine of $12 000.
(2) A person who --
(a) supplies a ballot paper without authority;
(b) is in possession of an unauthorised ballot paper;
(c) marks a ballot paper without authority; or
page 16
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 10
(d) takes a ballot paper from a polling place
without authority,
is guilty of an offence and is liable to imprisonment for
12 months and a fine of $12 000.
5 104. Secrecy offences
(1) A person who without authority --
(a) looks at the ballot paper of any particular
elector; or
(b) ascertains how any particular elector voted in
10 an election,
is guilty of an offence and is liable to imprisonment for
12 months and a fine of $12 000.
(2) A person who discloses the vote of any particular
elector is guilty of an offence and is liable to
15 imprisonment for 12 months and a fine of $12 000.
105. Electoral officer, offences by
An electoral officer who --
(a) attempts to influence the vote of an elector;
(b) by any unauthorised act or omission attempts to
20 influence the result of an election; or
(c) discloses, except under compulsion of law,
knowledge officially acquired concerning the
vote of a particular elector,
is guilty of an offence and is liable to imprisonment for
25 12 months and a fine of $12 000.
106. False statements in connection with an election
(1) A person who makes a statement that is false in a
material particular --
(a) in a nomination to be a candidate in an election;
page 17
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 10
(b) in an application to be included on a list of
electors in an election;
(c) in any other application or in any declaration,
form, certificate or other document that the
5 person completes in connection with an
election; or
(d) in an answer to a question in connection with
an election that is put by an electoral officer
with authority to do so,
10 is guilty of an offence and is liable to imprisonment for
12 months and a fine of $12 000.
(2) A person who induces another person to commit an
offence under subsection (1) is also guilty of an offence
under that subsection.
15 107. Evidentiary provision
In a prosecution for an offence under this Chapter in
relation to an election, a certificate purporting to be
signed by the officer responsible for conducting the
election --
20 (a) as to when nominations for the election were
first officially invited and when the entitlement
to vote in the election ceased;
(b) that a person named in the certificate was or
was not a candidate in the election;
25 (c) that a person named in the certificate was or
was not an elector in the election;
(d) that a place was or was not a polling place for
the purpose of the election;
(e) that a day was or was not a polling day for the
30 election; or
page 18
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 11
(f) that the election was duly held,
is admissible without calling the officer and is proof of
its contents in the absence of evidence to the contrary.
".
5 11. Sections 136 and 137 replaced
Sections 136 and 137 are repealed and the following section is
inserted instead --
"
136. Compounding or concealing offences
10 (1) In this section --
"compound", in relation to an offence, includes --
(a) to abstain from, to discontinue, and to delay,
prosecuting the offence; and
(b) to withhold evidence in relation to the
15 offence.
(2) A person who obtains, or who seeks or agrees to
receive, any property or benefit, pecuniary or
otherwise, for any person, upon an agreement or
understanding that the person will compound or
20 conceal an offence is guilty of a crime and is liable to
imprisonment for 7 years.
".
12. Section 138 replaced
Section 138 is repealed and the following section is inserted
25 instead --
"
138. Advertising reward for stolen property
(1) A person who, in any public offer of a reward for the
return of any stolen or lost property, uses any words to
30 the effect that no questions will be asked of, or that no
page 19
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 13
action will be taken against, the person returning the
property is guilty of an offence and is liable to a fine of
$2 000.
(2) A person who offers publicly to pay another person
5 who may have purchased any stolen or lost property or
advanced any money by way of loan on the security of
any such property --
(a) a refund of the purchase price or the money
loaned; or
10 (b) a reward or any other sum of money for the
return of any such property,
is guilty of an offence and is liable to a fine of $2 000.
(3) A person who prints or publishes an offer of the kind
referred to in subsection (1) or (2) is guilty of an
15 offence and is liable to a fine of $2 000.
".
13. Sections 145 and 146 replaced
Sections 145 and 146 are repealed and the following sections
are inserted instead --
20 "
145. Aiding a person to escape from lawful custody
(1) In this section --
"prison" includes any place where a person is or may
be held in lawful custody.
25 (2) A person who conveys anything or causes anything to
be conveyed into a prison with intent to facilitate the
escape of a person from that or another prison is guilty
of a crime and is liable to imprisonment for 7 years.
Summary conviction penalty: imprisonment for 3 years
30 and a fine of $36 000.
page 20
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 14
(3) A person who aids a person in escaping or attempting
to escape from lawful custody is guilty of a crime and
is liable to imprisonment for 7 years.
Summary conviction penalty: imprisonment for 3 years
5 and a fine of $36 000.
146. Escaping from lawful custody
A person who escapes from lawful custody is guilty of
a crime and is liable to imprisonment for 7 years.
Summary conviction penalty: imprisonment for 3 years
10 and a fine of $36 000.
".
14. Section 148 replaced
Section 148 is repealed and the following section is inserted
instead --
15 "
148. Aiding an escapee
(1) In this section --
"aid" includes to harbour, to maintain and to employ.
(2) A person who aids a person who is, to the person's
20 knowledge, a person who has escaped from lawful
custody is guilty of a crime and is liable to
imprisonment for 3 years.
Summary conviction penalty: imprisonment for
12 months and a fine of $12 000.
25 ".
15. Section 171 inserted
After section 170 the following section is inserted --
"
171. Creating false belief
30 (1) In this section --
page 21
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 15
"belief " means a belief or suspicion that --
(a) an offence has been or is about to be
committed;
(b) human safety is or may be endangered;
5 (c) human life has or may have been lost;
(d) property is or may be endangered;
(e) property has or may have been destroyed;
(f) there is a fire that needs to be put out,
and that is of such a nature as would reasonably
10 call for action by the Police Force or by
emergency services.
(2) A person who does or omits to do any act with the
intention of creating a false belief is guilty of a crime
and is liable to imprisonment for 2 years.
15 Summary conviction penalty: imprisonment for
12 months and a fine of $12 000.
(3) A court convicting a person of an offence under this
section may order the person to pay all or some of the
reasonable expenses of or incidental to any action that
20 was reasonably taken as a result of the offence,
whether or not by the Police Force or emergency
services.
(4) The order must specify the person or persons to whom
the amount is to be paid.
25 (5) Part 16 of the Sentencing Act 1995 applies to and in
respect of an order made under subsection (3) as if it
were a compensation order made under that Part.
".
page 22
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 16
16. Section 172 replaced
Section 172 is repealed and the following section is inserted
instead --
"
5 172. Obstructing public officers
(1) In this section --
"obstruct" includes to prevent, to hinder and to resist.
(2) A person who obstructs a public officer, or a person
lawfully assisting a public officer, in the performance
10 of the officer's functions is guilty of a crime and is
liable to imprisonment for 3 years.
Summary conviction penalty: imprisonment for
18 months and a fine of $18 000.
".
15 17. Section 186 amended
After section 186(2) the following subsection is inserted --
"
(3) It is no defence to a charge of an offence against this
section that the act of the accused person by which the
20 offence was committed was done with the consent of
the person with respect to whom the act was done.
".
18. Section 190 inserted
Before section 191 the following section is inserted --
25 "
190. Being involved with prostitution
(1) Any person who --
(a) keeps or manages, or acts, or assists in the
management of any premises for purposes of
30 prostitution;
page 23
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 18
(b) being the tenant, lessee, or occupier of any
premises, permits such premises, or any part
thereof, to be used for purposes of prostitution;
or
5 (c) being the lessor or landlord of any premises, or
the agent of such lessor or landlord, lets the
same, or any part thereof, or collects the rent
with the knowledge that such premises, or some
part thereof, are or is to be used for purposes of
10 prostitution, or is a party to the continued use of
such premises, or any part thereof, for purposes
of prostitution,
is guilty of a crime and is liable to imprisonment for
3 years.
15 Summary conviction penalty: imprisonment for
12 months and a fine of $12 000.
(2) For the purposes of subsection (1)(a), a person who
appears, acts, or behaves as the person having control
of, or the care or management of, any premises is to be
20 taken to be keeping the premises, whether the person is
or is not the real keeper.
(3) Any person who lives wholly or partly on earnings that
the person knows are the earnings of prostitution is
guilty of a crime and is liable to imprisonment for 3
25 years.
Summary conviction penalty: imprisonment for
12 months and a fine of $12 000.
(4) For the purposes of subsection (3), if a person lives
with, or is habitually in the company of a prostitute,
30 and has no visible means of subsistence, the person
shall, unless he or she can satisfy the court to the
contrary, be taken to be living on earnings that the
person knows are the earnings of prostitution.
".
page 24
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 19
19. Section 191 amended and Evidence Act 1906 consequentially
amended
(1) Section 191 is amended as follows:
(a) by inserting before "Any person" the subsection
5 designation "(1)";
(b) by redesignating paragraphs (1), (2), (3), (4) and (5)
respectively as paragraphs (a), (b), (c), (d) and (e).
(2) At the end of section 191 the following subsection is inserted --
"
10 (2) It is no defence to a charge of an offence against this
section that the act of the accused person by which the
offence was committed was done with the consent of
the person with respect to whom the act was done.
".
15 (3) The Evidence Act 1906 section 36A(1) is amended in
paragraph (a) of the definition of "sexual offence" by deleting
"or 191(1)" and inserting instead --
" or 191(1)(a) ".
20. Section 192 amended
20 (1) Section 192 is amended as follows:
(a) by inserting before "Any person" the subsection
designation "(1)";
(b) by redesignating paragraphs (1), (2), (3) and (4)
respectively as paragraphs (a), (b), (c) and (d).
25 (2) At the end of section 192 the following subsection is inserted --
"
(2) It is no defence to a charge of an offence against this
section that the act of the accused person by which the
offence was committed was done with the consent of
30 the person with respect to whom the act was done.
".
page 25
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 21
21. Sections 202, 203 and 204 replaced
Sections 202, 203 and 204 are repealed and the following
sections are inserted instead --
"
5 202. Obscene acts in public
(1) A person who does an obscene act --
(a) in a public place or in the sight of any person
who is in a public place; or
(b) in a police station or lock-up,
10 is guilty of a crime and is liable to imprisonment for 3
years.
Alternative offence: s. 203(1).
Summary conviction penalty: imprisonment for
12 months and a fine of $12 000.
15 (2) A person who owns, or has the control or management
of, a place to which the public is admitted, whether on
payment of consideration or not, and who permits a
person to do an obscene act in that place is guilty of a
crime and is liable to imprisonment for 3 years.
20 Alternative offence: s. 203(2).
Summary conviction penalty: imprisonment for
12 months and a fine of $12 000.
(3) It is a defence to a charge of an offence under this
section to prove that it was for the public benefit that
25 the act complained of should be done.
(4) Whether the doing of any such act is or is not for the
public benefit is a question of fact.
203. Indecent acts in public
(1) A person who does an indecent act --
30 (a) in a public place or in the sight of any person
who is in a public place; or
page 26
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 22
(b) in a police station or lock-up,
is guilty of a crime and is liable to imprisonment for
2 years.
Summary conviction penalty: imprisonment for
5 9 months and a fine of $9 000.
(2) A person who owns, or has the control or management
of, a place to which the public is admitted, whether on
payment of consideration or not, and who permits a
person to do an indecent act in that place is guilty of a
10 crime and is liable to imprisonment for 2 years.
Summary conviction penalty: imprisonment for
9 months and a fine of $9 000.
(3) It is a defence to a charge of an offence under this
section to prove that it was for the public benefit that
15 the act complained of should be done.
(4) Whether the doing of any such act is or is not for the
public benefit is a question of fact.
204. Indecent act with intent to offend
A person who does an indecent act in any place with
20 intent to insult or offend any person is guilty of a crime
and is liable to imprisonment for 3 years.
Summary conviction penalty: imprisonment for
12 months and a fine of $12 000.
".
25 22. Section 206 inserted
After section 205 the following section is inserted in
Chapter XXII --
"
206. Supplying intoxicants to people likely to abuse them
30 (1) In this section --
page 27
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 23
"intoxicant" means a drug, or a volatile or other
substance, capable of intoxicating a person, but
does not include liquor as defined in the Liquor
Licensing Act 1988;
5 "volatile substance" means a substance that produces
a vapour at room temperature.
(2) A person who sells or supplies an intoxicant to another
person in circumstances where the person knows, or
where it is reasonable to suspect, that that or another
10 person will use it to become intoxicated is guilty of an
offence and is liable to imprisonment for 12 months
and a fine of $12 000.
".
23. Sections 209 and 213 repealed and consequential
15 amendment
(1) Sections 209 and 213 are repealed.
(2) The heading to Chapter XXIII is amended by deleting
"Nuisances:".
24. Sections 339 to 342 repealed and consequential amendment
20 (1) Sections 339, 340, 341 and 342 are repealed.
(2) The heading to Chapter XXXIV is amended by deleting
"marriage and".
25. Section 390A inserted
After section 390 the following section is inserted --
25 "
390A. Unlawful use of conveyance
(1) In this section --
"conveyance" does not include a motor vehicle;
"use" a conveyance, includes --
page 28
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 26
(a) to take the conveyance for the purpose of
using it; and
(b) to assume control of the conveyance in any
way.
5 (2) A person who unlawfully uses a conveyance without
the consent of the owner or the person in charge of it is
guilty of a crime and is liable --
(a) if during the commission of the offence, a
person who is not an accomplice of the
10 offender is in the conveyance, to imprisonment
for 10 years;
(b) if immediately before or during or immediately
after the commission of the offence, the
offender --
15 (i) is armed with any dangerous or
offensive weapon or instrument or
pretends to be so armed;
(ii) is in company with another person or
persons; or
20 (iii) does bodily harm to any person,
to imprisonment for 10 years;
(c) in any other case, to imprisonment for 7 years.
Summary conviction penalty in a case to which
paragraph (c) applies: imprisonment for 3 years
25 and a fine of $36 000.
".
26. Section 390B repealed
Section 390B is repealed.
27. Heading to Chapter XLIV replaced
30 The heading to Chapter XLIV is deleted and the following
heading is inserted instead --
page 29
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 28
"
Chapter XLIV -- Simple offences analogous to stealing
".
28. Sections 428 to 435 replaced
5 Sections 428, 429, 430, 431, 432, 434 and 435 are repealed and
the following sections are inserted instead --
"
428. Possessing stolen or unlawfully obtained property
(1) A person who is in possession of any thing capable of
10 being stolen that is reasonably suspected to be stolen or
otherwise unlawfully obtained is guilty of an offence
and is liable to imprisonment for 2 years and a fine of
$24 000.
(2) It is a defence to a charge of an offence under
15 subsection (1) to prove that at the time the accused was
allegedly in possession of the thing, the accused had no
reasonable grounds for suspecting that the thing was
stolen or unlawfully obtained.
429. Unlawfully using another person's animal
20 A person who --
(a) unlawfully uses, or unlawfully takes for the
purpose of using, any animal that is the
property of another person without the consent
of the owner or the person in lawful possession
25 of the animal; or
(b) takes any animal that is the property of another
person for the purpose of secreting it or
obtaining a reward for the return or pretended
finding of it or for any fraudulent purpose,
30 is guilty of an offence and is liable to imprisonment for
2 years and a fine of $24 000.
".
page 30
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 29
29. Sections 439 and 440 repealed
Sections 439 and 440 are repealed.
30. Section 440A replaced
Section 440A is repealed and the following section is inserted
5 instead --
"
440A. Unlawful use of computers
(1) In this section --
"computer system" includes --
10 (a) a part of a computer system;
(b) an application of a computer system;
"password" includes a code, or set of codes, of
electronic impulses;
"restricted-access computer system" means a
15 computer system in respect of which --
(a) the use of a password is necessary in order to
obtain access to information stored in the
system or to operate the system in some
other way; and
20 (b) the person who is entitled to control the use
of the system --
(i) has withheld knowledge of the
password, or the means of producing it,
from all other persons; or
25 (ii) has taken steps to restrict knowledge of
the password, or the means of producing
it, to a particular authorised person or
class of authorised person;
"use" a computer system means --
30 (a) to gain access to information stored in the
system; or
page 31
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 31
(b) to operate the system in some other way.
(2) For the purposes of this section a person unlawfully
uses a restricted-access computer system --
(a) if the person uses it when he or she is not
5 properly authorised to do so; or
(b) if the person, being authorised to use it, uses it
other than in accordance with his or her
authorisation.
(3) A person who unlawfully uses a restricted-access
10 computer system is guilty of a crime and is liable --
(a) if by doing so the person --
(i) gains a benefit, pecuniary or otherwise,
for any person; or
(ii) causes a detriment, pecuniary or
15 otherwise, to any person,
of a value of more than $5 000, to
imprisonment for 10 years;
(b) if by doing so the person --
(i) gains or intends to gain a benefit,
20 pecuniary or otherwise, for any person;
or
(ii) causes or intends to cause a detriment,
pecuniary or otherwise, to any person,
to imprisonment for 5 years;
25 (c) in any other case, to imprisonment for 2 years.
Summary conviction penalty in a case to which
paragraph (c) applies: imprisonment for 12 months
and a fine of $12 000.
".
30 31. Sections 445 and 446 inserted
After section 444 the following sections are inserted --
page 32
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 31
"
445. Damaging property
A person who unlawfully destroys or damages the
property of another person without that other person's
5 consent is guilty of an offence and is liable to
imprisonment for 12 months and a fine of $12 000.
446. Costs of cleaning graffiti
(1) In this section --
"offender" means a person who is guilty of an offence
10 under section 444 or 445 where the damage
consists of --
(a) graffiti that are visible to the public; or
(b) graffiti applied to public property;
"public property" means property owned by, vested
15 in, or under the control or management of --
(a) the State;
(b) the Crown, or an agent or instrumentality of
the Crown;
(c) a body corporate established by a written
20 law; or
(d) a local government or regional local
government.
(2) A court convicting an offender may order the offender
to pay to any person who has obliterated the graffiti, or
25 caused it to be obliterated, a reasonable amount for
doing so.
(3) Such an order is in addition to any penalty imposed for
the offence and may be in addition to a compensation
order made under Part 16 of the Sentencing Act 1995.
30 ".
page 33
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 32
32. Section 557 amended
Section 557 is amended as follows:
(a) by inserting before "Any person" the subsection
designation " (1) ";
5 (b) by inserting before "explosive" in the first 2 places
where it occurs --
" dangerous or ";
(c) by inserting at the foot of the first paragraph the
following --
10 "
Summary conviction penalty: imprisonment for 3 years
and a fine of $36 000.
";
(d) by inserting before "In this section" the subsection
15 designation " (2) ".
33. Chapter LVIIA inserted
After section 557 the following chapter is inserted --
"
Chapter LVIIA -- Offences to do with preparing to
20 commit offences
557A. Presumptions
A person is presumed to have an intention referred to
in this Chapter in relation to a thing in the person's
possession if --
25 (a) the person is in possession of the thing in
circumstances that give rise to a reasonable
suspicion that the person has the intention; and
(b) the contrary is not proved.
page 34
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 33
557B. Investigative powers for offences in this Chapter
(1) It is lawful for any person to arrest without warrant any
person who is, or whom the person suspects, on
reasonable grounds, to be, in the course of committing
5 an offence under this Chapter that is not an arrestable
offence as defined in section 564(1).
(2) A police officer, without warrant, may --
(a) stop, detain and search any person who the
officer suspects on reasonable grounds to be
10 committing an offence under this Chapter; and
(b) seize anything that the officer suspects on
reasonable grounds relates to the commission
of the offence.
(3) Before a police officer searches a person under
15 subsection (2), the officer must explain to the person
that it is an offence to obstruct the search.
557C. Forfeiture
A court that convicts a person of an offence under this
Chapter may order that the thing giving rise to the
20 offence be forfeited to the State.
557D. Possessing stupefying or overpowering drug or
thing
A person who is in possession of a stupefying or
overpowering drug or thing with the intention of using
25 it to facilitate --
(a) the commission of an offence; or
(b) the flight of an offender after the commission
or attempted commission of an offence,
is guilty of an offence and is liable to imprisonment for
30 2 years and a fine of $24 000.
page 35
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 33
557E. Possessing things to assist unlawful entry to places
A person who is in possession of a thing with the
intention of using it to facilitate the unlawful entry of
any place is guilty of an offence and is liable to
5 imprisonment for 12 months and a fine of $12 000.
557F. Possessing things to assist unlawful use of
conveyances
A person who is in possession of a thing with the
intention of using it to facilitate the unlawful use of a
10 conveyance is guilty of an offence and is liable to a
fine of $6 000.
557G. Possessing things for applying graffiti
A person who is in possession of a thing with the
intention of using it to cause damage consisting of
15 graffiti is guilty of an offence and is liable to a fine of
$6 000.
557H. Possessing a disguise
A person who is in possession of a thing with the
intention of using it as a disguise in connection with
20 committing an offence is guilty of an offence and is
liable to a fine of $6 000.
557I. Possessing bulletproof clothing
(1) In this section --
"bulletproof clothing" means a protective jacket, vest,
25 or other article of clothing, designed to resist the
penetration of bullets or other missiles discharged
from firearms;
"Commissioner" means the Commissioner of Police
appointed under the Police Act 1892.
page 36
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 33
(2) A person who is in possession of bulletproof clothing is
guilty of an offence and is liable to a fine of $6 000.
(3) Subsection (2) does not apply to --
(a) a person who --
5 (i) holds an appointment under Part I, III
or IIIA of the Police Act 1892, other
than a police cadet;
(ii) is employed in the department of the
Public Service principally assisting in
10 the administration of the Police
Act 1892;
(iii) is a prison officer within the meaning of
the Prisons Act 1981;
(iv) is employed or appointed under an Act
15 of the Commonwealth, another State or
a Territory,
and who is lawfully in possession of bulletproof
clothing in the course of duty;
(b) a person who is in possession of bulletproof
20 clothing in accordance with a permit given
under subsection (4);
(c) a person who is in possession of bulletproof
clothing in the course of and for the purpose of
supplying it to a person referred to in
25 paragraph (a) or (b) to fulfil a request
previously made for its supply.
(4) The Commissioner, by a written permit, may permit a
person or a class of persons to possess bulletproof
clothing on any conditions (to be specified in the
30 permit) that the Commissioner thinks fit.
(5) The Commissioner may at any time amend or cancel
such a permit.
page 37
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 33
557J. Declared drug traffickers, consorting by
(1) In this section, unless the contrary intention appears --
"consort" includes to communicate in any manner;
"declared drug trafficker" means a person who is
5 declared to be a drug trafficker under
section 32A(1) of the Misuse of Drugs Act 1981.
(2) A person who is a declared drug trafficker and who,
having been warned by a police officer --
(a) that another person is also a declared drug
10 trafficker; and
(b) that consorting with the other person may lead
to the person being charged with an offence
under this section,
habitually consorts with the other person is guilty of an
15 offence and is liable to imprisonment for 2 years and a
fine of $24 000.
(3) It is a defence to a charge of an offence under
subsection (2) to prove that the accused person --
(a) was the spouse or de facto partner of the other
20 person; or
(b) was a de facto child or a lineal relative (as those
terms are defined in section 329(1)) of the other
person.
557K. Child sex offenders, offences by
25 (1) In this section, unless the contrary intention appears --
"child" means a person under 18 years of age;
"child sex offender" means a person who has been
convicted of --
(a) an offence under any of these chapters of this
30 Code that was committed against, in respect
of, or in the sight of, a child --
page 38
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 33
(i) Chapter XXII -- Offences against
morality;
(ii) Chapter XXXI -- Sexual offences;
(iii) Chapter XXXIII -- Offences against
5 liberty;
(b) an offence under Chapter XXXIIIB that was
committed against or in respect of a child;
(c) an offence under any of these repealed
enactments of this Code that was committed
10 against a child --
(i) section 315 (Indecent assault on males);
(ii) Chapter XXXIA -- Sexual assaults;
(iii) Chapter XXXII -- Assaults on females:
Abduction;
15 (d) an offence under section 59 of the
Censorship Act 1996 that was committed in
circumstances in which an indecent or
obscene article was sold, supplied or offered
to a child;
20 (e) an offence under section 60 of the
Censorship Act 1996;
(f) an offence under section 101 of the
Censorship Act 1996 that was committed in
circumstances in which --
25 (i) objectionable material was transmitted
or demonstrated to a child; or
(ii) the objectionable material was child
pornography;
(g) an offence under section 102 of the
30 Censorship Act 1996;
(h) an offence committed under section 5(1),
6(1), 15, 16, 17 or 18 of the Prostitution
page 39
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 33
Act 2000 committed against or in respect of a
child;
(i) an offence under this section;
(j) an offence under the repealed section 66(11)
5 of the Police Act 1892 committed in the sight
of a child; or
(k) an offence against a law of a jurisdiction
other than Western Australia that is
substantially similar to an offence referred to
10 in any of paragraphs (a) to (j);
"consort" includes to communicate in any manner.
(2) A reference in paragraph (a) or (b) of the definition of
"child sex offender" in subsection (1) to a Chapter of
this Code includes a reference to the Chapter as
15 enacted at any time.
(3) A reference in paragraph (c) of the definition of "child
sex offender" in subsection (1) to an enactment of this
Code includes a reference to the enactment as enacted
at any time before it was repealed.
20 (4) A person who is a child sex offender and who, having
been warned by a police officer --
(a) that another person is also a child sex offender;
and
(b) that consorting with the other person may lead
25 to the person being charged with an offence
under this section,
habitually consorts with the other person is guilty of an
offence and is liable to imprisonment for 2 years and a
fine of $24 000.
30 (5) It is a defence to a charge of an offence under
subsection (4) to prove that the accused person --
(a) was the spouse or de facto partner of the other
person; or
page 40
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 34
(b) was a de facto child or a lineal relative (as those
terms are defined in section 329(1)) of the other
person.
(6) A child sex offender who, without reasonable excuse,
5 is in or near a place that is --
(a) a school, kindergarten or child care centre; or
(b) a public place where children are regularly
present,
and where children are at the time is guilty of an
10 offence and is liable to imprisonment for 2 years and a
fine of $24 000.
".
34. "Misdemeanour" changed to "crime"
(1) Each provision listed in the Table to this section is amended by
15 deleting "misdemeanour" in each place where it occurs and in
each place inserting instead --
" crime ".
Table
s. 51(2) s. 149 s. 363
s. 52 s. 150 s. 384
s. 53 s. 151 s. 385
s. 54 s. 173 s. 386
s. 55 s. 176 s. 387
s. 56 s. 177 s. 389
s. 75 s. 178 s. 418
s. 86(1) s. 191 s. 421
s. 123 s. 192 s. 460
s. 128 s. 214 s. 461
s. 131 s. 291 s. 462
s. 133 s. 336 s. 510
s. 139 s. 337 s. 514
page 41
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 35
s. 141 s. 344 s. 547
s. 142 s. 360 s. 548
s. 147 s. 361 s. 549
(2) Section 552(1) is amended as follows:
(a) by deleting "of --" and inserting instead --
" of a crime. ";
(b) by deleting paragraphs (a) and (b).
5 (3) Section 552(2) is amended by deleting "or misdemeanour".
(4) Section 553(1) is amended as follows:
(a) by deleting "of --" and inserting instead --
" of a crime. ";
(b) by deleting paragraphs (a) and (b).
10 (5) Section 553(2) is amended by deleting "or misdemeanour".
(6) Section 558(1) is amended as follows:
(a) by deleting "of --" and inserting instead --
" of a crime. ";
(b) by deleting paragraphs (c) and (d).
15 (7) Section 558(2) is amended by deleting "or misdemeanour".
(8) Section 562(1) is amended as follows:
(a) by deleting "of --" and inserting instead --
" of a crime. ";
(b) by deleting paragraphs (a) and (b).
20 (9) Section 562(2) is amended by deleting "or misdemeanour".
35. Summary conviction penalties, changes to
(1) Each provision listed in the Table to this subsection is amended
by deleting the summary conviction penalty at the foot of the
provision and inserting instead --
page 42
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 35
"
Summary conviction penalty: imprisonment for
12 months and a fine of $12 000.
".
5 Table
s. 56 s. 150 s. 337
s. 74 s. 214 s. 488
s. 75 s. 305(3) s. 549
s. 81(2) s. 305(4)
(2) Each provision listed in the Table to this subsection is amended
by deleting the summary conviction penalty at the foot of the
provision and inserting instead --
"
10 Summary conviction penalty: imprisonment for 2 years
and a fine of $24 000.
".
Table
s. 54 s. 304(1) s. 424
s. 55 s. 323 s. 473(1)
s. 58 s. 407 s. 512
(3) Each provision listed in the Table to this subsection is amended
15 by deleting the summary conviction penalty at the foot of the
provision and inserting instead --
"
Summary conviction penalty: imprisonment for 3 years
and a fine of $36 000.
20 ".
Table
s. 68(1) s. 318(1) s. 324
page 43
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 35
(4) Each provision listed in the first column of the Table to this
subsection is amended by deleting the text opposite it in the
second column and inserting instead the text opposite it in the
third column.
5 Table
Provision Delete Insert instead
s. 59 or to a fine of $8 000 and a fine of $24 000
s. 151 $2 000 $6 000
s. 301 or a fine of $12 000 and a fine of $36 000
s. 301 or a fine of $8 000 and a fine of $24 000
s. 313(1) or a fine of $12 000 and a fine of $36 000
s. 313(1) or a fine of $6 000 and a fine of $18 000
s. 317(1) or a fine of $12 000 and a fine of $36 000
s. 317(1) or a fine of $8 000 and a fine of $24 000
s. 317A or a fine of $12 000 and a fine of $36 000
s. 317A or a fine of $8 000 and a fine of $24 000
s. 360 , and to a fine of $4 000 and a fine of $12 000
s. 360 $1 000 $4 000
s. 360 , and to a fine of $8 000 and a fine of $24 000
s. 360 $2 000 $8 000
s. 361 , and to a fine of $8 000 and a fine of $24 000
s. 361 $2 000 $8 000
s. 401(1) or a fine of $12 000 and a fine of $36 000
(in 2 places)
s. 401(1) or a fine of $8 000 and a fine of $24 000
s. 401(2) or a fine of $12 000 and a fine of $36 000
(in 2 places)
s. 401(2) or a fine of $8 000 and a fine of $24 000
s. 409(1) or a fine of $12 000 and a fine of $36 000
s. 409(1) or a fine of $8 000 and a fine of $24 000
s. 418 or to a fine of $200 and a fine of $12 000
s. 421 , and to a fine of $400 and a fine of $24 000
s. 426(2) or a fine of $8 000 and a fine of $24 000
page 44
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 35
Provision Delete Insert instead
s. 426(3) or a fine of $8 000 and a fine of $24 000
s. 426(4) $2 000 $6 000
s. 427(a) $2 000 $6 000
s. 436 or a fine of $8 000 and a fine of $24 000
s. 437 or a fine of $8 000 and a fine of $24 000
s. 444 or a fine of $12 000 and a fine of $36 000
s. 635A(5) or a fine of $10 000 and a fine of $12 000
(5) Section 338B is amended by deleting "Imprisonment for 18
months or a fine of $6 000." and inserting instead --
" imprisonment for 18 months and a fine of $18 000. ".
(6) Section 338C(3) is amended as follows:
5 (a) by deleting "Imprisonment for 3 years or a fine of
$12 000;" and inserting instead --
" imprisonment for 3 years and a fine of $36 000; ";
(b) by deleting "Imprisonment for 18 months or a fine of
$6 000." and inserting instead --
10 "
imprisonment for 18 months and a fine of $18 000.
".
(7) Section 338E(1) is amended as follows:
(a) by deleting "Imprisonment for 2 years or a fine of
15 $8 000;" and inserting instead --
" imprisonment for 2 years and a fine of $24 000; ";
(b) by deleting "Imprisonment for 18 months or a fine of
$6 000." and inserting instead --
"
20 imprisonment for 18 months and a fine of $18 000.
".
page 45
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 35
(8) Section 338E(2) is amended by deleting "Penalty: Imprisonment
for 12 months or a fine of $4 000." and inserting instead --
"
Penalty: imprisonment for 12 months and a fine of
5 $12 000.
".
(9) Section 343A(1) is amended by deleting "on summary
conviction to imprisonment for one year, or to a fine of $1 000."
and inserting instead --
10 " to imprisonment for 12 months and a fine of $12 000. ".
(10) Section 427 is amended as follows:
(a) by deleting "one year or a fine of $4 000;" and inserting
instead --
" 12 months and a fine of $12 000; ";
15 (b) by deleting "or a fine of $8 000." and inserting
instead --
" and a fine of $24 000. ".
(11) Sections 474(1) and 514 are each amended by deleting the
summary conviction penalty at the foot of the provision and
20 inserting instead --
"
Summary conviction penalty: imprisonment for
18 months and a fine of $18 000.
".
25 (12) Section 527(1) is amended by deleting "Imprisonment for
2 years or a fine of $8 000." and inserting instead --
" imprisonment for 2 years and a fine of $24 000. ".
page 46
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 36
(13) Section 570C is amended by deleting the penalty provision and
inserting instead --
"
Penalty:
5 (a) for an individual, imprisonment for
12 months and a fine of $12 000;
(b) for a body corporate, a fine of $100 000.
".
36. Amendments about alternative verdicts and Interpretation
10 Act 1984 consequentially amended
(1) After section 3(5) the following subsection is inserted --
"
(6) A person may be convicted and punished for an
offence on indictment notwithstanding that the person
15 might have been convicted of and punished for that
offence summarily.
".
(2) After section 10 the following Chapter is inserted --
"
20 Chapter IIA -- Alternative offences
10A. Conviction of alternative offence, when possible
(1) A person charged with an offence cannot be convicted
by the court dealing with the charge of any other
offence instead of that offence unless --
25 (a) the accused is charged with the other offence as
an alternative to that offence; or
(b) this Chapter provides otherwise.
(2) This Chapter does not authorise the conviction of a
person of an offence if the prosecution for the offence
30 was not commenced within the time (if any) limited by
law for commencing a prosecution for the offence.
page 47
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 36
10B. "Alternative offence", meaning and effect of
(1) This section applies if a provision of this Code, or of
another written law, that creates an offence
("offence A") provides one or more alternative
5 offences for offence A.
(2) If a person is charged with an offence ("offence A"),
whether or not on indictment, the person, instead of
being convicted as charged, may be convicted of any
alternative offence that is provided for offence A.
10 (3) This section does not prevent --
(a) this Code, or another written law, from
providing a simple offence as an alternative
offence for an indictable offence; or
(b) a person charged in an indictment with an
15 indictable offence from being found guilty by a
jury, and convicted and punished by a superior
court, for a simple offence that is an alternative
offence for the indictable offence.
(4) This section does not limit the operation of the other
20 sections in this Chapter.
10C. Conviction of alternative offence, consequences of
(1) If a person is charged with an offence and, under this
Code, is convicted by a court of some other offence,
the person is liable to the penalty to which the person
25 would be liable if the person had been charged before
that court with the other offence.
(2) If a person charged in an indictment with an indictable
offence is convicted of a simple offence that is an
alternative offence for the indictable offence, then, for
30 the purposes of any appeal against the conviction, the
person is to be taken to have been convicted of the
simple offence on indictment.
page 48
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 36
10D. Charge of offence, alternative convictions of
attempt etc.
If a person is charged with committing an offence (the
"principal offence"), the person, instead of being
5 convicted as charged, may be convicted of --
(a) attempting to commit;
(b) inciting another person to commit; or
(c) becoming an accessory after the fact to,
the principal offence or any alternative offence of
10 which a person might be convicted instead of the
principal offence.
10E. Charge of attempt, alternative convictions on
If a person is charged with attempting to commit an
offence (the "principal offence") other than an offence
15 under section 283, the person, instead of being
convicted as charged, may be convicted of --
(a) committing the principal offence; or
(b) committing, or attempting to commit, any
alternative offence of which any person
20 charged with the principal offence might be
convicted instead of the principal offence,
but the person shall not be liable to a punishment
greater than the greatest punishment to which the
person would have been liable if convicted of
25 attempting to commit the principal offence.
10F. Charge of conspiracy, alternative convictions on
If a person is charged with conspiring to commit an
offence (the "principal offence"), the person, instead
of being convicted as charged, may be convicted of --
30 (a) committing the principal offence;
(b) attempting to commit the principal offence; or
page 49
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 36
(c) inciting another person to commit the principal
offence,
but the person shall not be liable to a punishment
greater than the greatest punishment to which the
5 person would have been liable if convicted of
conspiring to commit the principal offence.
10G. Charge of procuring, alternative convictions on
(1) If a person is charged with procuring the commission
of an offence (the "principal offence"), the person,
10 instead of being convicted as charged, may be
convicted of --
(a) attempting to procure the commission of the
principal offence; or
(b) procuring the commission of, or attempting to
15 procure the commission of, any offence of
which any person charged with the principal
offence might be convicted instead of the
principal offence.
(2) If a person (the "accused") is charged with procuring
20 another person to do an act or make an omission of
such a nature that if the accused had done the act or
made the omission he or she would be guilty of an
offence (the "principal offence"), the accused, instead
of being convicted as charged, may be convicted of
25 procuring the other person to do any other act or make
any other omission that is of such a nature that if the
accused had done the act or made the omission he or
she would be guilty of an offence of which any person
charged with the principal offence might be convicted
30 instead of the principal offence.
page 50
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 36
10H. Charge of attempting to procure, alternative
convictions on
(1) If a person is charged with attempting to procure the
commission of an offence (the "principal offence"),
5 the person, instead of being convicted as charged, may
be convicted of attempting to procure the commission
of any other offence of which any person charged with
the principal offence might be convicted instead of the
principal offence.
10 (2) If a person (the "accused") is charged with attempting
to procure another person to do an act or make an
omission of such a nature that if the act or omission
had occurred an offence (the "principal offence")
would have been committed, the accused, instead of
15 being convicted as charged, may be convicted of
attempting to procure the other person to do any other
act or make any other omission that is of such a nature
that if the act or omission had occurred an offence
would have been committed of such a nature that any
20 person charged with the principal offence might be
convicted of it instead of the principal offence.
10I. Joined charges of receiving, verdicts on
If 2 or more persons are charged jointly with an
offence of which the receiving of any property is an
25 element and the evidence establishes that any one or
more of them separately received any part or parts of
the property under such circumstances as to constitute
an offence, one or more of the accused persons may be
convicted of the offence or offences so established by
30 the evidence.
".
(3) The Criminal Code is amended by inserting at the foot of, and
above any summary conviction penalty in, each provision listed
page 51
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 36
in the first column of the Table to this subsection the text
opposite the provision in the second column of the Table.
Table
Provision Text to be inserted
s. 186(1) Alternative offence: s. 191(1).
s. 280 Alternative offence: s. 290 or 291 or Road Traffic Act 1974
s. 59.
s. 281A(1) Alternative offence: s. 283, 290 or 291.
s. 283 Alternative offence: s. 292, 294, 297, 304, 305 or 317.
s. 290 Alternative offence: s. 291.
s. 292 Alternative offence: s. 301 or 317A.
s. 294 Alternative offence: s. 297, 304, 317 or 317A.
s. 294A(1) Alternative offence: s. 68 or 451A.
s. 305(3) Alternative offence: s. 305(4)
s. 317(1) Alternative offence: s. 313.
s. 317A Alternative offence: s. 313 or 317.
s. 318A Alternative offence: s. 294A, 297, 304, 313, 317 or 317A.
s. 320(2) Alternative offence: s. 320(4), 321(2) or (4) or 322(2) or (4).
s. 320(3) Alternative offence: s. 320(4) or (5), 321(3), (4) or (5) or
322(3), (4) or (5).
s. 320(4) Alternative offence: s. 321(4) or 322(4).
s. 320(5) Alternative offence: s. 321(5) or 322(5).
s. 320(6) Alternative offence: s. 321(6) or 322(6).
s. 321(2) Alternative offence: s. 321(4) or 322(2) or (4).
s. 321(3) Alternative offence: s. 321(4) or (5) or 322(3), (4) or (5).
s. 321(4) Alternative offence: s. 322(4).
s. 321(5) Alternative offence: s. 322(5).
s. 321(6) Alternative offence: s. 322(6).
s. 322(2) Alternative offence: s. 322(4).
s. 322(3) Alternative offence: s. 322(4) or (5).
s. 324 Alternative offence: s. 321(4), 322(4) or 323.
s. 325 Alternative offence: s. 322(2) or (4), 323 or 324.
page 52
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 36
Provision Text to be inserted
s. 326 Alternative offence: s. 321(2) or (4), 322(2) or (4), 323, 324
or 325.
s. 327 Alternative offence: s. 322(3), (4) or (5).
s. 328 Alternative offence: s. 321(3), (4) or (5), 322(3), (4) or (5)
or 327.
s. 329(2) Alternative offence: s. 321(2) or (4), 322(2) or (4) or 329(4).
s. 329(3) Alternative offence: s. 321(3), (4) or (5), 322(3), (4) or (5) or
329(4) or (5).
s. 329(4) Alternative offence: s. 321(4) or 322(4).
s. 329(5) Alternative offence: s. 321(5) or 322(5).
s. 329(6) Alternative offence: s. 321(6) or 322(6).
s. 330(2) Alternative offence: s. 322(2) or (4), 323, 324, 325, 326
or 330(4).
s. 330(3) Alternative offence: s. 322(3), 322(4), 322(5), 327, 328 or
330(4) or (5).
s. 330(4) Alternative offence: s. 322(4), 323 or 324.
s. 330(5) Alternative offence: s. 322(5).
s. 330(6) Alternative offence: s. 322(6).
s. 332(2) Alternative offence: s. 333.
s. 338A Alternative offence: s. 338B.
s. 338E(1) Alternative offence: s. 338E(2).
s. 379 Alternative offence: s. 424.
s. 388 Alternative offence: s. 378.
s. 392 Alternative offence: s. 68, 297, 313, 317, 317A, 378 or 393.
s. 393 Alternative offence: s. 68, 297, 313, 317 or 317A.
s. 409 Alternative offence: s. 378, 414 or 428.
s. 444 Alternative offence: s. 445.
(4) Section 191 is amended by inserting after the paragraph ending
with "years." the following paragraph --
"
Alternative offence for a charge of an offence under
5 subsection (1)(a): s. 186(1).
".
page 53
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 36
(5) Section 279 is amended by inserting at the foot of the section --
"
Alternative offence: s. 280, 281A, 283, 290 or 291 or
Road Traffic Act 1974 s. 59.
5 ".
(6) Section 297 is amended by inserting after the paragraph
beginning with "Any person" --
"
Alternative offence: s. 304, 313 or 317 or Road Traffic
10 Act 1974 s. 59.
".
(7) Section 343 is amended by inserting before the paragraph
beginning with "It is a defence" --
"
15 Alternative offence for a charge of an offence under
paragraph (1): an offence under paragraph (2).
".
(8) Section 378 is amended by inserting after the paragraph
beginning with "Any person" and before the heading
20 "Punishment in special cases" --
"
Alternative offence: s. 382, 383, 388, 390A, 409, 414,
428 or 429.
".
25 (9) Section 397 is amended by inserting before the paragraph
beginning with "The term" --
"
Alternative offence: s. 338A or 338B.
".
30 (10) Section 414 is amended by inserting after the first paragraph --
"
Alternative offence: s. 378, 409 or 428.
".
page 54
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 37
(11) Chapter LXIII is repealed.
(12) The Interpretation Act 1984 section 5 is amended by inserting
in the appropriate alphabetical position --
"
5 "alternative offence", when used in relation to an
offence, has the meaning given by section 10B of
The Criminal Code;
".
37. Chapter XI (if not amended by Criminal Code Amendment
10 (Racial Vilification) Act 2004) amended
(1) Sections 77 and 78 are each amended by deleting the summary
conviction penalty and inserting instead --
"
Summary conviction penalty: imprisonment for
15 12 months and a fine of $12 000.
".
(2) Sections 79 and 80 are each amended in the summary
conviction penalty by deleting "$1 000" and inserting instead --
" $4 000 ".
20 (3) The Criminal Code is amended by inserting at the foot of, and
above any summary conviction penalty in, each provision listed
in the first column of the Table to this subsection the text
opposite the provision in the second column of the Table.
Table
Provision Text to be inserted
s. 77 Alternative offence: s. 78, 79 or 80.
s. 78 Alternative offence: s. 77, 79 or 80.
s. 79 Alternative offence: s. 80.
s. 80 Alternative offence: s. 79.
page 55
Criminal Law Amendment (Simple Offences) Bill 2004
Part 2 The Criminal Code amended
s. 38
38. Amendments to Code if Criminal Code Amendment (Racial
Vilification) Act 2004 comes into operation
(1) Sections 78, 80, 80A and 80C are each amended by deleting the
summary conviction penalty and inserting instead --
5 "
Summary conviction penalty: imprisonment for 2 years
and a fine of $24 000.
".
(2) Sections 80B and 80D are each amended by deleting the
10 summary conviction penalty and inserting instead --
"
Summary conviction penalty: imprisonment for
12 months and a fine of $12 000.
".
15 (3) The Criminal Code is amended by inserting at the foot of, and
above any summary conviction penalty in, each provision listed
in the first column of the Table to this subsection the text
opposite the provision in the second column of the Table.
Table
Provision Text to be inserted
s. 77 Alternative offence: s. 78, 80A or 80B.
s. 78 Alternative offence: s. 80A or 80B.
s. 79 Alternative offence: s. 80, 80C or 80D.
s. 80 Alternative offence: s. 80C or 80D.
s. 80A Alternative offence: s. 78 or 80B.
s. 80C Alternative offence: s. 80 or 80D.
page 56
Criminal Law Amendment (Simple Offences) Bill 2004
The Criminal Code amended Part 2
s. 39
39. Amendments to Code if Oaths, Affidavits and Statutory
Declarations (Consequential Provisions) Act 2004 comes into
operation
(1) Section 169(1) is amended by deleting the summary conviction
5 penalty and inserting instead --
"
Summary conviction penalty: imprisonment for 3 years
and a fine of $36 000.
".
10 (2) Section 169(2) is amended by deleting the summary conviction
penalty and inserting instead --
"
Summary conviction penalty: imprisonment for 2 years
and a fine of $24 000.
15 ".
(3) Section 170(1) is amended by deleting the summary conviction
penalty and inserting instead --
"
Summary conviction penalty: imprisonment for
20 18 months and a fine of $18 000.
".
page 57
Criminal Law Amendment (Simple Offences) Bill 2004
Part 3 Police Act 1892 amended
Division 1 Amendments
s. 40
Part 3 -- Police Act 1892 amended
Division 1 -- Amendments
40. The Act amended in this Division
The amendments in this Division are to the Police Act 1892*.
5 [* Reprinted as at 12 January 2001.
For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 300 and
Acts Nos. 35 and 50 of 2003 and 4 of 2004.]
41. Section 16 replaced
10 Section 16 is repealed and the following section is inserted
instead --
"
16. Police clothing, unauthorised possession of
(1) In this section --
15 "police clothing" means any article of clothing or any
accessory that is issued to a member of the Police
Force to be worn in the course of the member's
duties.
(2) A person who is not a member of the Police Force must
20 not, without lawful excuse, be in possession of police
clothing.
Penalty: a fine of $9 000 and imprisonment for
9 months.
(3) Subsection (2) does not apply to a person who, with the
25 approval of the Commissioner, possesses police
clothing for use in the course of his or her duties --
(a) as a supervisor of a Police and Citizens' Youth
Club;
(b) as a member of the Police Band; or
30 (c) as a chaplain to the Police Force.
page 58
Criminal Law Amendment (Simple Offences) Bill 2004
Police Act 1892 amended Part 3
Amendments Division 1
s. 42
(4) An allegation in a charge of an offence under this
section that at the material time the accused was not a
member of the Police Force or was not authorised
under subsection (3) must be taken to be proved, unless
5 the contrary is proved.
(5) In a prosecution for an offence under subsection (2),
the accused has the onus of proving that the accused
had a lawful excuse.
".
10 42. Section 18 repealed
Section 18 is repealed.
43. Section 20 repealed
Section 20 is repealed.
44. Section 34 amended
15 Section 34(1) is amended by deleting "felony" and inserting
instead --
" crime ".
45. Section 41 amended
(1) Section 41(1) is amended as follows:
20 (a) by deleting the passage that begins with "; and if the
master" and ends with "an offence";
(b) by deleting the penalty provision at the foot of the
subsection.
(2) Section 41(7) is repealed.
25 46. Section 42 amended
Section 42 is amended by deleting the passage that begins with
", and may order" and ends with "not exceeding $300".
page 59
Criminal Law Amendment (Simple Offences) Bill 2004
Part 3 Police Act 1892 amended
Division 1 Amendments
s. 47
47. Section 43 amended
Section 43(1) is amended as follows:
(a) by deleting the passage that begins with "may find
conducting" and ends with "persons whom he";
5 (b) by deleting the passage that begins with ", or of any
evil" and ends with "for such offence".
48. Section 44 amended
Section 44 is amended as follows:
(a) by deleting ", and without any warrant other than this
10 Act, apprehend any person whom he may find behaving
himself in an indecent or disorderly manner, or using
profane, indecent, or obscene language, or using any
threatening, abusive, or insulting words or behaviour,
with intent or calculated to provoke a breach of the
15 peace";
(b) by deleting "and without any warrant other than this
Act, apprehend any person whom he may find behaving
himself in an indecent or disorderly manner, or using
any such language as aforesaid or words or behaviour as
20 aforesaid, with intent or calculated to provoke a breach
of the peace;";
(c) by deleting the passage that begins with "; and any
person" and ends with "exceeding $300".
49. Section 45 amended
25 Section 45 is amended by deleting the passage that begins with
"any felony" and ends with "in cases" and inserting instead --
" any indictable offence in any case ".
page 60
Criminal Law Amendment (Simple Offences) Bill 2004
Police Act 1892 amended Part 3
Amendments Division 1
s. 50
50. Section 46 repealed
Section 46 is repealed.
51. Section 47 repealed
Section 47 is repealed.
5 52. Section 50 inserted
After section 49 the following section is inserted --
"
50. Suspects and others may be ordered to move on
(1) A police officer may order a person who is in a public
10 place, or in a vehicle, vessel or aircraft used for public
transport, to leave it, or a part of it specified by the
officer, if the officer reasonably suspects that the
person --
(a) is doing an act --
15 (i) that involves the use of violence against
a person;
(ii) that will cause a person to use violence
against another person; or
(iii) that will cause a person to fear violence
20 will be used by a person against another
person;
(b) is just about to do an act that is likely to --
(i) involve the use of violence against a
person;
25 (ii) cause a person to use violence against
another person; or
(iii) cause a person to fear violence will be
used by a person against another person;
(c) is committing any other breach of the peace;
page 61
Criminal Law Amendment (Simple Offences) Bill 2004
Part 3 Police Act 1892 amended
Division 1 Amendments
s. 52
(d) is hindering, obstructing or preventing any
lawful activity that is being, or is about to be,
carried out by another person;
(e) intends to commit an offence; or
5 (f) has just committed or is committing an offence.
(2) A police officer giving an order under subsection (1)
may in addition do either or both of the following --
(a) order the person to go beyond a reasonable
distance from a place, or the part of a place, set
10 by the officer;
(b) order the person to obey the order or orders for
a period set by the officer; but the period must
not be longer than 24 hours.
(3) For the purpose of giving an order under this section to
15 a person whose personal details (as defined in
section 16 of the Criminal Investigation (Identifying
People) Act 2002) are unknown to the officer, a police
officer may request the person to give the officer any
or all of the person's personal details.
20 (4) If a request is made under subsection (3), section 16 of
the Criminal Investigation (Identifying People)
Act 2002 applies to and in relation to the request in the
same way as it applies to a request made under
subsection (2) of that section.
25 (5) Any order given under this section to a person must --
(a) be in writing in a form approved by the
Commissioner of Police; and
(b) be served on the person by giving it to the
person in person or, if the person refuses to
30 accept it, by leaving it near the person and
orally drawing his or her attention to it.
page 62
Criminal Law Amendment (Simple Offences) Bill 2004
Police Act 1892 amended Part 3
Amendments Division 1
s. 53
(6) A person who, without reasonable excuse, does not
comply with an order given by a police officer under
this section commits an offence.
Penalty: imprisonment for 12 months and a fine of
5 $12 000.
(7) This section does not prevent a police officer charging
a person with an offence without having exercised a
power in this section.
".
10 53. Section 51 amended
Section 51 is amended by deleting the passage that begins with
", and the owner" and ends with "more than $20".
54. Section 52 repealed
Section 52 is repealed.
15 55. Heading to Part VI deleted
The heading to Part VI is deleted.
56. Heading to Part VI Division 1 deleted
The heading to Division 1 of Part VI is deleted.
57. Sections 54 to 67A repealed
20 Sections 54, 54A, 57, 58A, 59, 61, 63, 64, 64A, 65, 66, 67 and
67A are repealed.
58. Section 67B repealed
Section 67B is repealed.
59. Section 69 repealed
25 Section 69 is repealed.
page 63
Criminal Law Amendment (Simple Offences) Bill 2004
Part 3 Police Act 1892 amended
Division 1 Amendments
s. 60
60. Section 71 repealed
Section 71 is repealed.
61. Heading inserted
Before section 74 the following heading is inserted --
5 "
Part VI -- As to dealing with property
connected with offences
".
62. Section 74 amended
10 Section 74 is amended by deleting "felony or misdemeanour"
and inserting instead --
" a crime ".
63. Sections 76A to 76I repealed
Sections 76A, 76B, 76C, 76D, 76E, 76F, 76G and 76I are
15 repealed.
64. Sections 79A to 84 repealed
Sections 79A, 80, 80A, 81, 82, 82A, 82B, 83 and 84 are
repealed.
65. Heading to Part VI Division 7 deleted
20 The heading to Division 7 of Part VI is deleted.
66. Sections 90 and 90A repealed
Sections 90 and 90A are repealed.
67. Section 90B amended
(1) Section 90B(1) is amended by deleting "to be forfeited, under
25 this Part," and inserting instead --
page 64
Criminal Law Amendment (Simple Offences) Bill 2004
Police Act 1892 amended Part 3
Transitional provisions Division 2
s. 68
" seized under Part V to be forfeited ".
(2) Section 90B(2) is amended as follows:
(a) by deleting "this Part" and inserting instead --
" Part V ";
5 (b) by deleting "proceedings under this Act or is liable to
forfeiture under this Act" and inserting instead --
" a prosecution or is liable to forfeiture ".
68. Part VII repealed
Part VII is repealed.
10 69. Section 122 repealed
Section 122 is repealed.
70. Sections 125 and 126 repealed
Sections 125 and 126 are repealed.
71. Sections 133 and 134 repealed
15 Sections 133 and 134 are repealed.
72. Second Schedule repealed
The Second Schedule is repealed.
Division 2 -- Transitional provisions
73. Repealed offences may be investigated etc.
20 Despite section 11 of The Criminal Code and section 10 of the
Sentencing Act 1995 and the repeal by Division 1 of an
enactment of the Police Act 1892 that creates an offence --
(a) an investigation or legal proceedings in respect of any
such offence alleged to have been committed before the
25 commencement of Division 1 may be commenced or
continued; and
page 65
Criminal Law Amendment (Simple Offences) Bill 2004
Part 3 Police Act 1892 amended
Division 2 Transitional provisions
s. 73
(b) a person may be sentenced or otherwise dealt with for
the alleged offence as if the enactment had not been
repealed.
page 66
Criminal Law Amendment (Simple Offences) Bill 2004
Public Meetings and Processions Act 1984 amended Part 4
s. 74
Part 4 -- Public Meetings and Processions Act 1984
amended
74. Act amended by this Part
The amendments in this Part are to the Public Meetings and
5 Processions Act 1984*.
[* Reprinted as at 16 August 2002.]
75. Long title replaced
The long title is repealed and the following long title is inserted
instead --
10 "
An Act to regulate the holding of public meetings and
processions in streets, to provide for the maintenance of
order in streets, and for related purposes.
".
15 76. Short title amended
Section 1 is amended by deleting "Meetings and Processions"
and inserting instead --
" Order in Streets ".
77. Section 4 amended
20 Section 4(1)(a) and "and" after it are deleted and the following
is inserted instead --
"
(a) any directions given by a member of the Police
Force under section 9A; and
25 ".
page 67
Criminal Law Amendment (Simple Offences) Bill 2004
Part 4 Public Meetings and Processions Act 1984 amended
s. 78
78. Section 9A inserted
After section 9 the following section is inserted --
"
9A. Maintaining order in streets
5 (1) For the purposes of maintaining order in streets the
Commissioner of Police may give instructions to any
or all members of the Police Force as to --
(a) regulating traffic, whether pedestrian,
vehicular, or of any other kind, in streets;
10 (b) preventing or removing obstructions to any
such traffic in streets;
(c) maintaining order in streets.
(2) Such an instruction is not to be given for the purpose of
frustrating --
15 (a) the holding of a meeting, or the conduct of a
procession, authorised under a permit granted
under this Act; or
(b) the holding or conduct of an event on a road
closed under an order made under Part VA of
20 the Road Traffic Act 1974.
(3) A member of the Police Force acting under such an
instruction may give reasonable directions to any
person for the purpose of giving effect to the
instruction.
25 (4) A person who, knowing of the existence of a direction
given under subsection (3), does not comply with it
commits an offence.
Penalty: $2 000.
".
30 79. Section 12 repealed
Section 12 is repealed.
page 68
Criminal Law Amendment (Simple Offences) Bill 2004
amended Part 5
s. 80
Part 5 -- Constitution Acts Amendment Act 1899
amended
80. Act amended by this Part
The amendments in this Part are to the Constitution Acts
5 Amendment Act 1899*.
[* Reprint 12 as at 3 October 2003.
For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 77 and
Acts Nos. 35 of 2003 and 8 and 20 of 2004.]
10 81. Section 32 amended and saving provision
(1) Section 32 is amended by inserting before "A person" the
subsection designation "(1)".
(2) Section 32(b) is deleted and the following paragraph is inserted
instead --
15 "
(b) has been convicted of an offence for which the
penalty specified by a law is or includes --
(i) imprisonment for life; or
(ii) imprisonment for a period that may
20 exceed 5 years.
".
(3) At the end of section 32 the following subsection is inserted --
"
(2) In subsection (1)(b) --
25 "offence" means an offence against a law of this State,
the Commonwealth, another State or a Territory.
".
page 69
Criminal Law Amendment (Simple Offences) Bill 2004
Part 5 amended
s. 81
(4) A person who is a member of the Legislative Assembly or the
Legislative Council immediately before the commencement --
(a) does not become disqualified, on the commencement,
for membership of the Legislative Assembly or the
5 Legislative Council for the purposes of section 38(b) or
40(b) of the Constitution Acts Amendment Act 1899; and
(b) is not prevented from completing his or her current term
as a member,
by reason only of a conviction that occurred before the
10 commencement.
(5) In subsection (4) --
"commencement" means the commencement of this section.
page 70
Criminal Law Amendment (Simple Offences) Bill 2004
Various Acts amended Part 6
s. 82
Part 6 -- Various Acts amended
82. Various Acts amended (Sch. 1)
Each Act listed in Schedule 1 is amended as set out in that
Schedule immediately below the short title of the Act.
page 71
Criminal Law Amendment (Simple Offences) Bill 2004
Schedule 1 Various Acts amended
Schedule 1 -- Various Acts amended
[s. 82]
1. Aboriginal Affairs Planning Authority Act 1972
s. 48 Delete ", misdemeanour".
2. Anatomy Act 1930
s. 22(1) Delete "misdemeanour" and insert instead --
" crime ".
s. 22(2) Delete "misdemeanour" and insert instead --
" crime ".
5 3. Boxing Control Act 1987
s. 46(2) Delete "Section 64 of the Police Act 1892" and insert
instead --
" Section 73 of The Criminal Code ".
4. Builders' Registration Act 1939
s. 13(1)(b) Delete "any crime or misdemeanour" and insert instead --
" any indictable offence ".
Delete "a crime or misdemeanour" and insert instead --
" an indictable offence ".
5. Community Services Act 1972
s. 19(1) Delete ", misdemeanour".
6. Companies (Co-operative) Act 1943
s. 132(2) In each provision, delete "misdemeanour" and insert
s. 280(1) instead --
s. 281(3) " crime ".
s. 425
s. 148(1) Delete "misdemeanour within the meaning of The Criminal
Code" and insert instead --
" crime ".
page 72
Criminal Law Amendment (Simple Offences) Bill 2004
Various Acts amended Schedule 1
s. 226(4) Delete "misdemeanour within the meaning of The Criminal
Code" and insert instead --
" crime ".
s. 279(1) Delete "misdemeanour within the meaning of The Criminal
Code" and insert instead --
" crime ".
s. 279(2) Delete "misdemeanour as aforesaid" and insert instead --
" crime ".
Delete "misdemeanour within the meaning of The Criminal
Code" and insert instead --
" crime ".
Delete "misdemeanour." and insert instead --
" crime. ".
s. 281(4) Delete "misdemeanour within the meaning of The Criminal
Code" and insert instead --
" crime ".
7. Co-operative and Provident Societies Act 1903
s. 48(3) Delete ", and any person knowingly making a false or
fraudulent declaration in the matter shall be guilty of a
misdemeanour".
8. Corruption and Crime Commission Act 2003
Sch. 1 cl. 2(b) Delete "s. 65(4aa) of the Police Act 1892." and insert
instead --
" s. 557I of The Criminal Code. ".
9. Country Towns Sewerage Act 1948
s. 111 Delete "misdemeanour" and insert instead --
" crime ".
10. Dental Act 1939
s. 48 Delete "misdemeanour" and insert instead --
" crime ".
page 73
Criminal Law Amendment (Simple Offences) Bill 2004
Schedule 1 Various Acts amended
11. Energy Operators (Powers) Act 1979
s. 74(1) Delete "misdemeanour" and insert instead --
" crime ".
12. Evidence Act 1906
s. 100A(5) Delete "misdemeanour" and insert instead --
" crime ".
s. 103(2) Delete "misdemeanour" and insert instead --
" crime ".
Second Repeal Part 3.
Schedule
13. Forrest Place and City Station Development Act 1985
s. 18(1) Delete "section 82B of the Police Act 1892" and insert
instead --
" section 70A of The Criminal Code ".
14. Gaming and Wagering Commission Act 1987
s. 32(1) Delete "Part VI" and insert instead --
" Part V ".
s. 32(2) Delete "or the Police Act 1892".
5 15. Licensed Surveyors Act 1909
s. 21(1)(d) Delete "misdemeanour or crime" and insert instead --
" indictable offence ".
16. Life Assurance Companies Act 1889
s. 13 Delete "misdemeanour" and insert instead --
" crime ".
s. 54 Delete "misdemeanour" and insert instead --
" crime ".
page 74
Criminal Law Amendment (Simple Offences) Bill 2004
Various Acts amended Schedule 1
17. Limited Partnerships Act 1909
s. 12 Delete "misdemeanour" and insert instead --
" crime ".
18. Liquor Licensing Act 1988
s. 155(5) Delete "or forfeited under Part VI" and insert instead --
" under Part V ".
19. Medical Act 1894
s. 17 Delete "misdemeanour" and insert instead --
" crime ".
20. Mining Act 1978
s. 15(1) Delete "misdemeanour" and insert instead --
" crime ".
s. 15(2) Delete "misdemeanour" and insert instead --
" crime ".
5 21. Optometrists Act 1940
s. 26(1)(c) Delete "crime or misdemeanour within the meaning of those
terms under" and insert instead --
" indictable offence within the meaning of ".
22. Parliamentary Privileges Act 1891
s. 14 Delete "misdemeanour" in the 3 places it occurs and in each
place insert instead --
" crime ".
23. Pharmacy Act 1964
s. 18(3) Delete "misdemeanour" and insert instead --
" crime ".
page 75
Criminal Law Amendment (Simple Offences) Bill 2004
Schedule 1 Various Acts amended
24. Pig Industry Compensation Act 1942
s. 16(5) Delete "misdemeanour" and insert instead --
" crime ".
25. Prostitution Act 2000
s. 34 Delete "Part VI" and insert instead --
" Part V ".
26. Public Transport Authority Act 2003
s. 58(2)(a) Delete "the Police Act 1892 section 54" and insert instead --
" The Criminal Code section 74A ".
s. 58(2)(b) Delete "the Police Act 1892 section 66(13)" and insert
instead --
" The Criminal Code section 70A ".
s. 58(2)(c) Delete "the Police Act 1892 section 80(1)" and insert
instead --
" The Criminal Code section 445 ".
27. Road Traffic Act 1974
s. 81A In the definition of "event" delete "Meetings and Processions"
and insert instead --
" Order in Streets ".
s. 81E(1) Delete "section 52 of the Police Act 1892" and insert
instead --
" section 9A of the Public Order in Streets Act 1984 ".
s. 89 Repeal the section.
5 28. Street Alignment Act 1844
s. 10 Repeal the section.
29. Sunday Entertainments Act 1979
Long title Delete ", to repeal section 76H of the Police Act 1892".
s. 4 Repeal the section.
page 76
Criminal Law Amendment (Simple Offences) Bill 2004
Various Acts amended Schedule 1
30. Trustee Ordinance 1854
s. 19 Delete "felony" and insert instead --
" an indictable offence ".
31. Trustees Act 1962
s. 77(2)(c) Delete "felony or misdemeanour" and insert instead --
" an indictable offence ".
32. Veterinary Preparations and Animal Feeding Stuffs Act 1976
s. 9 After "Health Act 1911," in both places where it occurs
insert --
" and ".
Delete "and section 94C of the Police Act 1892,".
Delete "or section 94C of the Police Act 1892,".
33. Water Boards Act 1904
s. 75 Delete "misdemeanour" and insert instead --
" crime ".
s. 152 Delete "misdemeanour" and insert instead --
" crime ".
5 34. Wildlife Conservation Act 1950
s. 20(4) Repeal the subsection and insert instead --
"
(4) This Act does not prevent section 428 of The
Criminal Code operating in respect of fauna or
flora reasonably suspected of having been taken
otherwise than as authorised by or pursuant to
the provisions of this Act.
".
page 77
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