C Juvenile Justice: Some Recent Developments by Honor Figgis,

Briefing Paper No 5/99

C Probation: an Overview by Honor Figgis, Briefing Paper No 21/98

C Mandatory and Guideline Sentencing: Recent Developments by

Honor Figgis, Briefing Paper No 18/98

C Street Offences and Crime Prevention by Gareth Griffith and Rachel

Simpson, Briefing Paper No 9/98

C Bail in NSW by Rachel Simpson, Briefing Paper No 25/97

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this

document may be reproduced or transmitted in any form or by any means including

information storage and retrieval systems, with the prior written consent from the Librarian,

New South Wales Parliamentary Library, other than by Members of the New South Wales

Parliament in the course of their official duties.

Dr David Clune, Manager . . . . . . . . . . . . . . . . . . . . . . . . . . (02) 9230 2484

Dr Gareth Griffith, Senior Research Officer,

Politics and Government / Law . . . . . . . . . . . . . . . . . . . . . . (02) 9230 2356

Ms Honor Figgis, Research Officer, Law . . . . . . . . . . . . . . . (02) 9230 2768

Ms Rachel Simpson, Research Officer, Law . . . . . . . . . . . . (02) 9230 3085

Mr Stewart Smith, Research Officer, Environment . . . . . . . (02) 9230 2798

Ms Marie Swain, Research Officer, Law/Social Issues . . . . (02) 9230 2003

Mr John Wilkinson, Research Officer, Economics . . . . . . . . (02) 9230 2006

1.0 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

2.0 THE PHENOMENON OF CRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

3.0 LAW AND ORDER LEGISLATION IN THE AUSTRALIAN STATES

AND TERRITORIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

3.1 New South Wales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

3.2 Queensland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

3.3 South Australia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

3.4 Tasmania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

3.5 Victoria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

3.6 Western Australia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

3.7 Australian Capital Territory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

3.8 Northern Territory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

4.0 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

see Briefing Paper No 9/98, Street Offences and Crime Prevention by Gareth Griffith and

Rachel Simpson, and particularly part 2(B), pages 5-11, titled “viewpoints in the

contemporary debate”.

98.

legislation, published twice a year in the Criminal Law Journal (June and December), has

been used as a guide in the compilation of the comparative survey of law and order

legislation presented in this paper.

detail in the National Campaign Against Violence and Crime’s 1999 report Pathways to

Prevention: Developmental and early intervention approaches to crime in Australia.

Events in New South Wales in 1998, including the death of off-duty police officer Peter

Forsyth in February, the murder of 14 year old schoolboy, Edward Lee in Punchbowl in

October and the drive-by shooting of Lakemba police station in November have once again

caused the law and order debate to intensify. People are becoming more fearful of crime,

and assertions that the incidence of crime has risen , along with concerns about the

corresponding cost to the community, have combined to make crime prevention and “law

and order” a priority for all governments. The phenomenon of crime in Australia is discussed

in Part 2.0 below. Crime prevention has also become a priority for the Police Service and

concerned community groups, all of whom have their own theories on how best to combat

The object of this Paper is to survey the States and Territories to evaluate the legislative response of State and Territory Governments across Australia to this problem of crime prevention and the law and order question generally. The paper does not attempt to evaluate the success of various measures, simply to highlight the steps taken. The survey covers the period 1995 to the end of 1998. It does not take note of every minor amendment in the field of criminal legislation, but it does seek to offer a reasonably comprehensive coverage of the major legislative initiatives, taking account of the main features of the relevant reforms.

study on the fear of crime in May 1998, which includes a literature review, fieldwork research,

an audit of existing fear reduction programs and strategies and further suggestions for

reducing the fear of crime.

Risk of Criminal Victimisation in Australia, Crime and Justice Bulletin No 28, NSW Bureau

of Crime Statistics and Research, May 1996, p. 2.

In an attempt to understand statements about the increasing incidence of crime, there are

two issues which must be taken into consideration. When looking at crime rates, the actual

asserted by the NSW Bureau of Crime Statistics and Research that

... public opinion about the risk of criminal victimisation is probably more

influential in shaping State Government spending priorities in law and order

than actual risk. If public concern about crime is driven by an exaggerated

assessment of the risks of victimisation then strategies need to be put in

Certainly, the general public’s perception and fear of crime has changed. The results of

Bulletin Magazine surveys conducted by AGB McNair in 1986, 1992 and 1994 testify to

this. The respondents, taken from across Australia, were asked to rank 12 issues in order

of perceived importance. The issues ranged from ‘violence-crimes’ to ‘interest rates’ and

‘industrial disputes’. In the 1994 survey, 70% of respondents thought ‘violence/crimes’ was

an issue of “real concern”. In fact, violence was considered of greater concern than any

other issue, closely followed by ‘hospitals/health’.By way of comparison, in 1992, 65% of

respondents ranked ‘violence/crimes’ as an issue of “real concern” and in 1986 the

Bureau of Crime Statistics and Research in May 1996 confirmed that fear of crime is an

issue of general public concern, although in relation to certain offences (break and enter and

motor vehicle theft) the perception of risk is greater than the actual risk. In relation to

violence offences (for example robbery or assault) the fear was much less exaggerated than

the actual risk. The research also pointed to a variation among the States in relation to the

Catalogue number 4510.0, p. 103.

publication, National Crime Statistics, ABS catalogue number 4510.0.

The table below illustrates the recorded incidence of certain crimes by offence category, and

represents the number of victims per 100,000 population in 1997. The information is

extracted from the Australian Bureau of Statistics publication Recorded Crime Australia for

1997. The information is derived from administrative systems used by State and Territory

police to record crime. The offences will have been reported to the police by the victim, a

witness or another person, or they may have been detected by the police. There are

limitations to these figures, a point made by the ABS, which pointed out that these statistics

“do not provide a total picture of crime, as not all crime comes to the attention of the

indication of the incidence of certain crimes.

Murder 1.75 1.41 2.21 1.55 1.67 1.48 4.28 1.29 1.74

Attempted Murder 1.59 0.91 3.32 2.23 1.28 0.21 2.14 0.65 1.72

Manslaughter 0.18 .004 0.29 0.20 0.50 0.21 10.7 - 0.21

n.a 0.50 1.15 1.01 2.00 0.21 0.53 - n.a

Assault 892.49 361.16 518.75 927.69 763.91 415.42 1 368.55 540.35 668.78

Sexual Assault 74.32 61.50 96.58 82.31 88.98 40.76 133.06 31.63 76.29

4.32 2.00 3.12 2.50 2.11 0.84 0.53 2.58 3.01

Armed Robbery 79.34 25.69 36.55 25.27 58.89 9.50 11.22 36.15 48.64

Unarmed Robbery 121.00 27.79 34.96 57.37 59.28 21.96 26.72 37.44 66.08

0.89 2.63 2.47 1.49 3.45 0.42 1.60 0.97 1.90

2 632.10 1 608.66 2 082.92 1883.02 3 145.27 2 995.56 2 557.02 1 414.17 2 254.69

871.98 660.61 500.08 544.67 844.71 517.63 535.45 504.21 703.67

Other Theft 2 632.95 2 596.44 2 721.31 3 185.28 4 204.31 2 724.60 3 781.82 3 002.96 2 856.35

* Unlawful Entry with intent includes two sub-categories, that which involves property, and other.

The relative change in the incidence of crime over time is also important. The incidence of

the above crime categories in NSW, per 100 000 population, from the year ending

limitations of these statistics must be pointed out, most notably the fact that reporting

patterns will have an effect on the perceived incidence of crime. The change in some crimes,

for example sexual assault, may be due at least in part by the public’s acceptance of the acts

Law and order legislation, 1995-1998

4

1998, Statistical Report Series, March 1999, p. 4.

as a crime and the victims’ willingness to report the crime to the police. Police practices,

including the categorisation of certain activities as “criminal” or not, as well as the

legislature’s role in defining what constitutes a crime, will also impact on any crime

statistics.

Attempted Murder 1.36 1.02 0.95 1.34 1.59

Manslaughter 0.10 0.17 0.10 0.26 0.18

Driving Causing Death 0.07 1.88 2.99 3.74 n.a

Assault - - 619.06 770.85 892.49

Sexual Assault 63.31 76.15 66.05 81.16 74.32

Kidnapping/ Abduction 5.22 3.73 2.91 3.45 4.32

Armed Robbery 38.57 36.67 62.32 48.66 79.34

Unarmed Robbery 61.51 84.80 94.47 93.57 121.00

Blackmail/ Extortion 0.13 0.15 0.29 0.66 0.89

1 841.60 1 983.87 2 178.48 2 446.81 2 632.10

Motor Vehicle Theft 651.38 751.79 761.85 787.18 871.98

Other Theft - - 2 279.78 2 542.23 2 632.95

Where there is a dash there was no statistic for that particular offence.

These figures are consistent with the NSW Bureau of Crime Statistics and Research’s data,

according to which, between the 12 month periods January to December 1997 and January

to December 1998, there was a statistically significant upward trend in the monthly numbers

C assault (up by 6.2%)

C robbery with a weapon not a firearm (up 29.7%)

C break and enter - dwelling (up by 7.0%)

C break and enter - non-dwelling (up by 6.8%)

C steal from a motor vehicle (up by 5.9%)

C steal from a dwelling (up by 7.7%)

C malicious damage to property (up by 11.9%)

The offences of sexual assault (down by 14.1%) and indecent assault, act of indecency or

other sexual offence (down by 18.7%) were the only two offences for which a significant

Law and order legislation, 1995-1998

5

March 1999, p. 5. See also B Lagan, ‘Wave of error’, The Sydney Morning Herald, 6 March

1999, p. 35. By way of comparison, the corresponding NSW Bureau of Crime Statistics and

Research figures for 1997 reported that the increase in the incidence of robbery with a

weapon not a firearm was 76.8%, robbery with a firearm was 33.4%, motor vehicle theft was

12.5%, and steal from a motor vehicle was 10.9%, significantly higher than in the 1998

figures.

published twice a year in the Criminal Law Journal (June and December), has been used

as a guide in the compilation of sections 3.1 to 3.8 of this paper.

NSW, by Rachel Simpson.

downward trend was recorded. The incidence of murder, robbery with a weapon, robbery

with a firearm, motor vehicle theft, steal from a retail store, steal from person and fraud did

interpreted by the head of the NSW Bureau of Crime Statistics and Research, Dr Don

Weatherburn, as representing a plateau in the incidence of the most serious crimes in NSW,

The survey below lists law and order legislation in the Australian States and Territories from

1995 to 1998. The legislation is listed by State and Territory, by year and alphabetically. As

noted, there are a number of areas in which there has been legislation Australia-wide.

Notable in this regard is the national scheme for the regulation of firearms regulation,

adopted by the Australian Police Ministers’ Council in 1996 following the Port Arthur

tragedy, in relation to which only the legislation as passed in NSW will be discussed in some

C Crimes Amendment (Child Pornography) Act 1995: This Act makes possession

of child pornography an offence, and gives police powers to enter and search

premises for child pornography.

C Criminal Legislation Amendment Act 1995: This Act extends the exceptions to the

presumption in favour of bail under the Bail Act 1978 to include conspiracy to

Law and order legislation, 1995-1998

6

1994, by Gareth Griffith.

same form, when it was passed. For a discussion of the 1992 Bill, and other more general

issues relating to prostitution and law reform, see Briefing Paper No 27/95, Prostitution in

New South Wales: Law Reform Issues, by Vicki Mullen.

C Criminal Procedure Amendment (Indictable Offences) Act 1995: This Act enables

certain indicatable offences to be dealt with summarily, including having, or

attempting to have sexual intercourse with a person between 14 and 16 years, aiding

or abetting suicide, interfering with corpses, bigamy and larceny or other property

crimes where the value of stolen goods is less than $5 000. The Act also prescribes

C Disorderly Houses Amendment Act 1995: This Act removed the habitual use of

premises for prostitution as grounds for declaring premises to be a disorderly house.

It also provided that it is not an offence under the Summary Offences Act 1988 for

a person who owns, manages, or is employed in a brothel to live off the earnings of

prostitution of another person, and created an offence of inducing a person to

commit an act of prostitution or to surrender the proceeds of prostitution. It also

enabled the Land and Environment Court to close a brothel down on the application

C Evidence Act 1995: This Act replaces the 1898 Act and was enacted as a move

Two features of the new rules include:

C visual identification evidence is not admissible unless an identification parade

has been held, or it was not reasonable to hold the parade or the suspect

declined to participate;

C picture or photo evidence is not admissible if the photos suggest they were

taken in police custody, if the suspect is in custody at the time the picture

identification is made and the picture used was taken before he or she was

placed in custody unless the suspect’s identification has changed

substantially, or if the suspect was in custody at the time the picture

identification was made and no identification parade was held, unless the

suspect has declined to participate or the suspect’s identification had

changed substantially.

C Local Government (Alcohol-Free Zones) Act 1995: This Act enables local councils

to apply that an alcohol-free zone be established in a public place or car park, to

operate for up to three years, and to be patrolled by police officers.

Law and order legislation, 1995-1998

7

by Gareth Griffith.

by Vicki Mullen.

C Children (Community Service Orders) Amendment (Maximum Hours) Act 1996:

This Act increases the maximum number of hours of community service work that

persons may be required to perform under a community service order;

C Crimes Amendment (Children’s Evidence) Act 1996: This Act gives all children

the right to have a supportive person present when they give evidence in criminal

proceedings, and provides for the use of close-circuit television facilities and other

special arrangements where children are giving evidence in proceedings involving

personal assaults or apprehended violence orders.

C Crimes Amendment (Mandatory Life Sentences) Act 1996: This Act imposes

mandatory life sentences for murder and supply of a commercial amount of heroin

or cocaine where the court is satisfied that the level of culpability is so extreme that

the community interest in retribution, punishment, community services and

deterrence can only be met through the imposition of a life sentence. The provisions

do not apply to a person under the age of 18 years at the time the offence was

C Crimes Amendment (Review of Convictions and Sentences) Act 1996 which

enables reviews to be carried out under Part 13A of the Crimes Act 1900 in relation

to sentences as well as convictions, and in relation to proceedings giving rise to

sentences and convictions;

C Criminal Legislation Amendment Act 1996: This Act, inter alia, reforms the law

concerning the effect of intoxication on criminal liability. Self-induced intoxication

is no longer relevant when considering intent when a person is charged with an

offence which is not one of specific intent. Offences of specific intent are offences

of which an intention to cause a specific result is an element and include murder,

administering poison with intent to injure or annoy, kidnapping and assault with

This Act also increases the penalty for having custody of an offensive weapon in a

pubic place from 10 penalty units (the $1,000) or 6 months imprisonment to 20

penalty units (then $2,000) or 12 months imprisonment.

C Fines Act 1996: This Act regulates the administration of fine payment and

enforcement. It establishes a State Debt Recovery Office with responsibility for the

fines system. The Act moves away from imprisonment for fine default, and sets out

a hierarchy of methods of fine enforcement, progressing from suspension of driver’s

Law and order legislation, 1995-1998

8

Proposed Legislative Changes, by Gareth Griffith.

Overview by Marie Swain.

Background, by Honor Figgis.

license or car registration, civil action for debt recovery, imposition of a community

C Firearms Act 1996: This Act repeals and replaces the Firearms Act 1989, and was

part of a national approach to the control of firearms. It establishes a strict licensing

and permits scheme for the possession and use of firearms and for the safe keeping

of firearms, for which a genuine reason for having a license or permit is the prerequisite.

22

The Act also establishes a registration scheme for firearms and contains provisions

regulating the sale of firearms. Schedule 1 of the Act contains a list of prohibited

firearms which includes a machine gun, sub machine gun, self-loading rifle, repeat

action shotgun, a firearm fitted with a silencer, a canon or a firearm which looks like

a walking stick or cane.

C Home Detention Act 1996: This Act provides for home detention as a means of

serving a sentence of imprisonment in certain cases where the sentence of a term of

imprisonment does not exceed 18 months, except in respect of violent offences

(murder, sexual assault, armed robbery etc), and where the offender does not have

C Periodic Detention of Prisoners Amendment Act 1996: This Act makes a number

of amendments designed to tighten the periodic detention scheme to prevent nonattendance

of detainees, including:

C the Act inserts a new section 5AA into the Periodic Detention Act 1981

whereby courts sentencing an offender to periodic detention are also

required to make an order that the offender have his or her fingerprints and

photograph taken. The effect of this section is that the offender has these

identifying details taken twice - once at the court at the time of sentencing,

and again at their initial arrival at the detention centre.

C the maximum number of weeks by which a sentence of periodic detention

can be extended for failure to report is increased from two to six weeks.

C the Act inserts a new section 20A into the Periodic Detention Act 1981

which enables the Commissioner for Corrective Services or his delegate

(correctional officers) to send home a detainee who, for example, is under

threat of violence from fellow detainees.

Law and order legislation, 1995-1998

9

Commentary on the Legislative Reform Package 1996, by Fiona Manning and Gareth

Griffith.

C the discretion previously available to the court in regard to cancelling an

order of periodic detention for three failures to report is restricted so the

court cannot refuse to cancel the periodic detention order unless the detainee

has actually applied for a leave of absence or exemption from the order. The

court’s discretion in respect of the penalty it imposes upon cancelling the

order is, however, extended to allow for non-custodial orders such as a

community service order where appropriate. The formula for calculating the

unserved portion of the sentence is also clarified in section 27.

C a new section 21AA is inserted into the Periodic Detention Act 1981 which

gives Correctional officers the option to treat the late arrival of a periodic

detainee as a failure to report or as a late arrival whereby the detainee makes

up the lost time at a later date.

C Sentencing Amendment (Parole) Act 1996: This Act revises the procedures

relating to the parole of prisoners who are serious offenders, to require victim

submissions to be taken into consideration, and to require the Serious Offenders

Review Council to consider the public interest.

C Traffic Amendment (Street and Illegal Drag Racing) Act 1996: This Act prohibits

practices associated with motor vehicle drag racing (for example operating a motor

vehicle in such as manner as causes it to lose traction against the road surface), and

provides for confiscation and impounding of any vehicles used for such practices.

C Victims Compensation Act 1996: This Act, which forms part of a package

overhauling victims rights and compensation, abolishes the use of common law

principles for the assessment of damages, and adopts instead a Table of Injuries

approach, as set out in Schedule 1 to the Act. It also redefines the term ‘act of

violence’, making specific reference to such an act involving ‘violent conduct’. In

addition alterations are made to the statutory terms ‘primary victim’, ‘secondary

victim’ and ‘family victim’, with same gender relationships being covered under the

last category of claimants. Under the Act, orders for restitution against offenders can

be made and a levy is imposed on persons found guilty of a crime punishable by

C Victims Rights Act 1996: This Act establishes a charter of rights for victims of

crime. It does not, however, create any legally enforceable rights. The Act also

establishes two bodies for the promotion of rights of victims, the Victims Crime

Law and order legislation, 1995-1998

10

purposes of this legislation, enabling police to remove children under 16 from a public place.

See further Briefing Paper No 6/97, The Children (Parental Responsibility) Act 1994: An

Update, by Marie Swain.

Griffith.

Further, the Act makes provision for the consideration of victim impact statements in

sentencing violent or serious offenders.

C Children (Protection and Parental Responsibility) Act 1997: This Act repeals the

Children (Parental Responsibility) Act 1994 and has a number of relevant functions:

C it empowers police to remove children from certain public places (declared

operational areas under the Act) where the police officer believes the child

is under 16 years of age and is in circumstances which place the child at risk,

not under the supervision of a responsible adult. The police officer must

escort the child to the residence of the child’s parent or carer, or a close

relative.

C A police officer is empowered to request the child’s name, age and address

for the purposes of the Act, and may use reasonable force for the purpose

of removing the child form the public place.

C The police are also empowered to conduct a frisk search of the child and

remove any concealed weapon found in the child’s possession.

The Act also provides for Local Crime Prevention Plans developed in

C Crimes Amendment (Assault of Police Officers) Act 1997: This Act creates new

offences relating to assaults committed against police officers in execution of their

duty. Three categories of assault are provided for: assault not occasioning actual

bodily harm, assault occasioning bodily harm, and assault consisting of malicious

wounding or inflicting serious bodily harm.

C Crimes Amendment (Child Pornography) Act 1997: This Act creates the offence

of publishing child pornography, and prescribes the maximum penalty for that

offence of a fine of $110,000 and imprisonment for five years in the case of an

individual, and in the case of a corporation, a fine of $220,000. The Act also doubles

the previous maximum penalty for possession of child pornography.

C Crimes Amendment (Detention After Arrest) Act 1997: This Act enables police to

detain a person after arrest merely for the purposes of investigation. It provides for

the maximum period of time that a person who is under arrest may be detained for

Law and order legislation, 1995-1998

11

1997: Commentary and Background, by Gareth Griffith and Honor Figgis.

C Crimes Amendment (Diminished Responsibility) Act 1997: This Act replaces the

defence of diminished responsibility to a charge of murder. The Act replaces the

defence with a new, stricter, defence - substantial impairment by abnormality of

mind. The new defence requires that the accused prove that the abnormality of mind

arise from an underlying, pre-existing mental or physiological condition, other than

a condition of a transitory mind, and specifies that the effects of any self-induced

intoxication must be disregarded. The Act also requires that the accused declare that

age of 14 years is incapable of sexual intercourse does not apply (for example

section 66A, having sexual intercourse with children under 10 years).The Act also

contains a number of procedural provisions.

C Crimes Legislation Further Amendment Act 1997: This Act, inter alia amends the

Crimes Act 1900 to create a new “circumstance of aggravation” which refers to a

person being under the influence of a drug other than alcohol whilst driving

dangerously. The effect of the amendment is to enable a person to be charged with

the more serious offence of aggravated dangerous driving if that person is under the

influence of a drug or combination of drugs.

C Law Enforcement (Controlled Operations) Act 1997: This Act allows for law

enforcement agencies to undertake what would be otherwise illegal activities in the

course of fighting crime and provides for authorisation, conduct and accountability

of those activities.

C Sentencing Legislation Further Amendment Act 1997, which affects the

redetermination of life sentences imposed prior to the 1989 truth in sentencing laws

in a number of ways:

C by restricting judicial discretion to redetermine life sentences to

circumstances where the court finds there is “special reason”.

C by requiring the court to have regard to all the circumstances surrounding

the offence for which the life sentence was originally imposed, and all the

offences committed by the offender, wherever those offences were

committed.

C by increasing the waiting period from eight years to 20 years in the case of

any offender who, at the time of sentencing, was recommended by the

sentencing court never to be released before the offender can have the

original sentence redetermined.

C by increasing the waiting period from two to three years before an offender

can re-apply for redetermination where the original application was refused.

Law and order legislation, 1995-1998

12

5/99, Juvenile Justice: Some Recent Developments, by Honor Figgis.

The Act also makes similar provisions with respect to the Parole Board and Serious

Offenders Review Council to take into account any recommendations of the original

sentencing judge when exercising their functions with respect to pre-1989 life

sentences.

C Summary Offences Amendment Act 1997: This Act makes a number of

amendments relating to offensive implements:

C it expands the offence of having custody of an offensive implement in a

public place to include a school.

C it makes it an offence to use or visibly carry a knife in a public place or a

school, in the presence of any person in a manner that would cause a person

present at the scene fear for his or her personal safety.

C the offence of sale of a knife or knife blade to a person under the age of 16

years is created, and under the Act, an employer who had knowledge of an

employee’s actions in doing so is made liable for the employee’s actions.

The other relevant amendments concern under-age drinking: a police officer who

reasonably suspects a person who is consuming liquor in a public place is a minor

may require that person to state his or her full name and residential address and

provide proof of age. It is an offence for the person to refuse to provide the police

officer with that information.

C Traffic Amendment (Street and Illegal Drag Racing) Act 1997: This Act enables

police to impound a vehicle they reasonably suspect of having been involved in drag

racing in the past 10 days. The vehicle may be seized from a public place or any

other place, with the consent of the owner or occupier or under the authority of a

search warrant, and may be sold or disposed of in certain circumstances.

C Traffic and Crimes Amendment (Menacing and Predatory Driving) Act 1997:

This Act creates an indictable offence of predatory driving, with a maximum penalty

of five years’ imprisonment, and a summary offence of driving in a manner which the

driver ought to know might menace. It also increases the penalty for menacing

driving to $3,300 or 18 months imprisonment (or both) for a first offence, and

$5,500 or 2 years imprisonment (or both) for a subsequent offence.

C Young Offenders Act 1997: This Act established procedures for dealing with

children who commit certain offences through the use of police cautions and

Law and order legislation, 1995-1998

13

C Bail Amendment Act 1998: This Act extends the exception to the presumption in

favour of bail to include: manslaughter, wounding with the intent to do bodily harm

or resist arrest, aggravated sexual assault or assault with intent to have sexual

intercourse, attempting, assaulting with intent or having sexual intercourse with a

child under 10 years, homosexual intercourse with a male under 10 years,

kidnapping and domestic violence and offences contravening AVOs where the

accused has failed to comply with certain bail conditions.

C Crimes Legislation Amendment Act 1998: This Act makes a number of

miscellaneous amendments to the criminal law and procedure, including abolishing

the common law rule granting immunity to a wife against prosecution as an

accessory after the fact to a felony committed by her husband.

creates the offence of persistent sexual abuse of a child, which is defined as sexual

abuse of a child on three or more separate occasions on separate days during any

period. This offence is punishable by penal servitude for 25 years.

The Act also creates the summary offence of loitering by a convicted child sexual

offender near premises frequented by children. The maximum penalty for this offence

is 50 penalty units ($5,500) or two years’ imprisonment, or both.

C Crimes Legislation Further Amendment Act 1998: This Act makes a number of

procedural amendments including amendments relating to self-induced intoxication,

possession of child pornography, and provisions by which funds in the Confiscated

Proceeds Account may be spent in aid of crime prevention programs and programs

supporting safer communities.

C Crimes Legislation (Police and Public Safety) Act 1998: This Act further amends

the Summary Offences Act 1988 in relation to offensive implements:

C an offence of having custody of a knife in a public place or school without

a reasonable excuse is created;

C police are empowered under this Act to conduct an electronic or frisk search

of a person or examine any bag or other personal effect on a person in a

public place or school where the police reasonably suspects the person has

unlawful custody of a knife, firearm or prohibited weapon, and to confiscate

anything which the police reasonably believe to be a dangerous implement;

C police are also empowered to give reasonable directions to a person in a

public place whose behaviour or presence is obstructing another person or

traffic, or where the person’s behaviour constitutes harassment or

intimidation or is likely to frighten another person, and

C where a police officer reasonably believes a person may be able to assist in

the investigation of an alleged indictable offence because the person was at

Law and order legislation, 1995-1998

14

of street offences.

Development, by Honor Figgis.

or near the place around the time the alleged offence was committed, the

C Criminal Procedure Amendment (Sentencing Guidelines) Act 1988: This Act

makes provision for guideline judgements to be given by a Court, on the application

of the Attorney-General. A guideline judgement is a judgement which contains

Note that this Act does not limit the discretion of the Court to give a guideline

judgement without application from the Attorney-General, nor does it compel the

Court to give a guideline judgement where it thinks it is inappropriate to do so.

C Criminal Procedure Legislation Amendment (Bail Agreements) Act 1998: This

Act amends the Bail Act 1978 so as to provide for the enforcement of bail

the same definition as under the Bail Act 1978 and to abolish various recognisances

(sums of money payable to the State unless the person appears in court, for

example).

C Drug Misuse and Trafficking Amendment (Ongoing Dealing) Act 1998: This Act

creates an indicatable offence of supplying prohibited drugs on an ongoing basis,

defined as on 3 or more separate occasions during any period of 30 consecutive

days. The maximum penalty for this offence is 3,500 penalty units ($385,000) or 20

years imprisonment or both. This offence is an offence for which there is an

exception to the presumption in favour of bail under the Bail Act 1978.

C Fines Amendment Act 1998: This Act make a number of amendments relating to

the enforcement and administration of the fines system in NSW, including: ensuring

the maximum number of hours community service work that a person under 18 years

can be required to perform is 100, and that the work can be performed under several

orders concurrently, and enabling the RTA to issue a first driver’s license to a person

who has an unpaid fine for an offence committed when he or she was a child.

C Home Invasion (Occupants Protection) Act 1998: This Act provides protection as

well as civil and criminal immunity to occupants who use physical force to defend

and order legislation, 1995-1998

15

Gareth Griffith.

places. Protection is granted if the occupant considers, on reasonable grounds, that

C Pawnbrokers and Second-Hand Dealers Amendment Act 1998: This Act makes

a number of amendments in relation to the granting and renewal of licenses, the

retention of goods that are suspected of having been stolen , the keeping of records,

the sale of pawned goods at public auctions and the provision of information to the

Commissioner of Police.

C Periodic Detention of Prisoners Amendment Act 1998: This Act tightens the

eligibility for periodic detention, provides that an offender must sign an undertaking,

prior to commencing periodic detention, that he or she will comply with the

requirements of periodic detention, and relocates cancellation proceedings in relation

to periodic detention from the courts to the Parole Board.

C Periodic Detention of Prisoners Further Amendment Act 1988: This Act contains

procedures to be followed after the Parole Board cancels an order for periodic

detention (after which time the prisoner may serve either a custodial sentence or is

placed on parole).

C Police Powers (Vehicles) Act 1988: This Act empowers police to stop and search

vehicles which they reasonably suspect to have been involved in the commission of

an indictable offence. The police officer may request the driver or any owner of the

vehicle to disclose his or her identity and that of any passenger in the vehicle at or

near the time the offence was committed. Failure on the part of the driver or owner

may result in a maximum penalty of 50 penalty units ($5,500) or 12 months’

imprisonment or both. A police officer may also be authorised to stop and search a

vehicle if it is reasonably suspected that the vehicle was used in or in connection with

the commission of an indictable offence.

C Traffic Amendment (Confiscation of Keys and Driving Prevention) Act 1998:

This Act empowers police to prevent people who are under the influence of drugs

or alcohol from driving motor vehicles.

C Traffic Amendment (Tyre Deflation - Police Pursuits) Act 1998: This Act

provides for the use by police of tyre deflation devices in connection with the pursuit

of vehicles by the police.

reason for possessing or using the weapon. A prohibited weapon includes a knife,

bomb, spear gun, crossbow, slingshot (other than homemade), blow-pipe, mace,

Law and order legislation, 1995-1998

16

whip with a lash comprised wholly or partly of metal, cat o’ nice tails, knuckle

duster, studded glove or anti-personnel spray, as well as miscellaneous articles such

as handcuffs, silencers or body armour vests. The Act also provides for an amnesty

period to enable the surrender of prohibited weapons.

C Criminal Offence Victims Act 1995: This Act articulates the fundamental principles

of justice for victims of crime. It provides for a scheme of compensation to a person

for injury suffered as a result of an indictable offence committed against that person.

It also permits compensation to be paid to dependants of a victims of murder or

manslaughter, or for funeral or other expenses to be paid to a victim where there are

no dependants.

C Drugs Misuse Amendment Act 1995: This Act amends the Drugs Misuse Act 1986

to allow the recording of particulars of people and companies purchasing the

chemicals which can be used to manufacture illicit drugs, enabling police to better

trace the supply of chemicals for illicit drug manufacturing purposes.

C Courts (Video Link) Amendment Act 1996: This Act provides for the use of video

link facilities in bail or remand proceedings where the detainee is entitled or required

to be present. The detainee remains in the correctional centre, but is taken to be

present in the court for the proceedings. In other proceedings, the Court may

authorise the use of video link facilities if all parties consent. The aim of the

legislation is to reduce the risks posed to the community in the transport of prisoners

to and from the courts. The Act applies in relation to proceedings before the

Magistrates, District and Supreme Courts.

C Drugs Misuse Amendment Act 1996: This Act, inter alia, creates the offence of

publishing or possessing instructions for producing dangerous drugs, and enables

certain drugs offences to be dealt with summarily.

C Juvenile Justice Legislation Amendment Act 1996: This Act represents a major

change to juvenile justice legislation in Queensland. The Act gives police the scope

to obtain permission from a magistrate to have the fingerprint of palm print of a child

taken, as part of the process of investigating an offence. The intention of this

provision is to discourage police from arresting juveniles for the purpose of taking

finger prints. The Act also provides for community conference scheme for children

who admit or are found guilty of an offence. It also provides for the confidentiality

identifying information of participants in community conference agreements, or to

whom a caution has been given.

Law and order legislation, 1995-1998

17

criticism from the legal profession and other interested groups.

C Weapons Amendment Act 1996: This Act provides for a new licensing system for

possession, acquisition and sale of weapons, and is part of the national approach to

firearm control agreed upon by the Australian Police Ministers’ Council: It

establishes a firearms register and an amnesty period for the surrender of prohibited

amendments to the Criminal Code Act 1899 (the Criminal Code). Relevant

amendments include:

C the reduction in age from 15 to 14 from which a minor can be held criminally

responsible for his or her actions;

C brining into line the penalties for carnal knowledge of girls and sodomy of

boys (14 years imprisonment) and increasing the penalties for other sexual

offences against children and intellectually impaired persons;

C broadening of the defence available to home owners who use force to

prevent or repel another person from unlawfully entering or remaining on the

premises - the defence is also extended, with slight variations, to the

protection of moveable property, and to persons assisting that person;

C extension of the domestic discipline provisions;

C creation of a new offence of torture; creation of new offences of computer

hacking and misuse; insertion of a new Chapter 58A, dealing with indictable

offences which may be dealt with summarily;

C insertion of a provision according to which parties must give advance notice

of their intention to bring evidence by expert witnesses and give the other

party a copy of the expert’s report, and a provision which requires parties

attend the pre-trial directions regarding the admissibility of evidence and

conduct of the trial.

The Act also amended the Vagrants, Gaming and Other Offences Act 1931 to make

possession of a graffiti instrument an offence, punishable by up to 70 penalty units

or two years’ imprisonment.

C Penalties and Sentences (Serious Violent Offences) Amendment Act 1997: This

Act, inter alia, introduces separate provisions for the punishment of serious violent

offences. Under the new provisions, serious violent offenders must serve a minimum

of 80% of their term of imprisonment before becoming eligible to apply for parole

or community release.

Law and order legislation, 1995-1998

18

C Police Powers and Responsibilities Act 1997: This Act consolidates the powers of

police officers into one statute, and standardises the way in which those powers and

responsibilities of police officers are to be exercised. These powers are divided into

a number of areas: entry, inspection, inquiries, arrests and crime scenes; roadblocks;

searching people and vehicles with and without a warrant; power to seize evidence;

powers relating to arrest; investigations and questioning; powers in relation to

persons in custody; surveillance powers; power to give directions in notified areas;

standard safeguards (for example information to be given to an arrested person,

limitation on period of detention for search etc); assault or obstruction of police

officers, and other miscellaneous powers.

C Weapons and other Legislation Amendment Act 1997: Relevant provisions include

applying minimum ages to persons using shooting galleries - 11 years for general

shooting galleries and 15 years for shooting galleries at which paint pellet sports are

played. The Act also creates the offence of possession of a knife in a night club,

unless used for preparation of food provided on the premises.

who, by their presence or behaviour near an automatic teller machine is causing

anxiety to a reasonable person. The Act also creates the offences of unlawfully

entering another person’s vehicle, and unlawfully entering another person’s vehicle

with intent to commit an indictable offence, and the offence of carrying a knife in a

public place without a reasonable excuse.

C Criminal Law (Undercover Operation) Act 1995: This Act allows police to engage

in otherwise illegal operations for the purpose of gathering evidence of serious

criminal behaviour.

C Criminal Law Consolidation (Mental Impairment) Amendment Act 1995: This

Act regulates the procedure for dealing with ‘mentally impaired’ defendants accused

of indictable offences in the District or Supreme Courts. A ‘mental impairment’ is

defined to include a mental illness, mental disability or senility.

or use of body armour without the approval of the Commissioner of Police. Body

Law and order legislation, 1995-1998

19

armour is defined to include a protective jacket, vest or other article of apparel

designed to resist the penetration of a projectile discharged from a firearm.

C Statutes Amendment (Paedophiles) Act 1995: This Act enables people to make a

complaint to the Local Court seeking a ‘paedophile restraining order’ against a

person to restrain them from loitering near children or in the vicinity of a specified

place or in specified places or loitering near children in any circumstances. The order

may be made if the person has prior convictions for child sexual offences, or has

been found loitering near children on at least one prior occasion and there is reason

to think the person may do so again.

C Statutes Amendment (Recording of Interviews) Act 1995: This Act requires police

to electronically record interviews with persons suspected of having committed an

indictable offence. Evidence of an unrecorded interview is inadmissible. The Act also

enables children under the age of 12, or an illiterate or intellectually disabled witness

to give evidence in the form of an audio or video recording.

C Summary Offences (Overcrowding at Public Venues) Amendment Act 1995: This

Act increases police powers to control overcrowding in a place of public

entertainment where there is a serious risk of injury or damage as a result of the

overcrowding: A member of the Police Force may enter a place of public

entertainment for the purpose of ascertaining the risk of injury or damage, and

authorised police officers may order persons to leave the premises or order the

occupier to remove persons or take any other necessary steps. It also authorises

police officers to close the venue immediately for a period of up to 12 hours if

necessary to alleviate the danger.

C Correctional Services (Miscellaneous) Amendment Act 1996: This Act makes a

number of amendments to the Correctional Services Act 1982, including

amendments relating to work release, empowering the Department of Correctional

Services with the authority to release a prisoner into home detention, and

empowering correctional officers to stop, search and detain any person on prison

property who is reasonably suspected of attempting to bring drugs or other

contraband into the prison. The Act also enables prison management to open and

examine incoming and outgoing mail for drugs.

(criminal assets).

C Firearms (Miscellaneous Amendment) Act 1996: This Act contains amendments

reflecting the national uniform approach agreed upon by the Australian Police

Law and order legislation, 1995-1998

20

detail see the NSW section, p. 8, above.

C Racial Vilification Act 1996: This Act formally creates the criminal offence of racial

vilification, which is defined to be “hatred towards, serious contempt or severe

ridicule”, and must include a serious threat of violence to a person or property in

public. The Act also creates a civil remedy for those people who suffer a wrong as

a result of racial vilification.

C Statutes Amendment (Sentencing of Young Offenders) Act 1996: This Act has the

effect that the whole of the Criminal Law (Sentencing) Act 1988 applies when

sentencing young people, not only those provisions specifically directed towards

young offenders. Specific and general deterrence must be taken into account when

sentencing young offenders. The Act also has a number of practical effects: for

example it confers on Youth Court all the powers enjoyed by the Magistrates Court,

for example, to order home detention.

C Criminal Law Consolidation (Self Defence) Amendment Act 1997: This Act

simplifies the law relating to self-defence. It does so by requiring the jury to find that

the force used by the accused was objectively reasonable in all the circumstances.

This differs from the previous test insofar as it required that the jury find the accused

believed the force used was reasonable. The Act replaces the previous general

section dealing with self-defence with two sections: acts directed at the defence of

life, bodily integrity or liberty; and acts directed at the defence of property.

C Criminal Law (Forensic Procedures) Act 1998: This Act enables forensic

procedures to be carried out in order to obtain evidence relevant to the investigation

of criminal offences. Forensic procedures include taking of hand, finger, foot or toe

prints; an examination of an external part or orifice of a person’s body; the taking

of a sample of hair from person’s body; the taking of a sample of blood, by a buccal

swab, of saliva, finger nail or toe nail or of material from under a fingernail or toenail

the taking of a sample of biological material or other material from an external part

of the body; the taking of a dental impression, or the taking of an impression or cast

of a wound.

C Criminal Law (Sentencing) (Victim Impact Statements) Amendment Act 1998:

This Act enables victim impact statements to be given at trial by the person who has

suffered injury, loss or damage resulting from an indictable offence committed by

another.

Law and order legislation, 1995-1998

21

C Evidence (Use of Audio and Audio Visual Links) Amendment Act 1998: This Act

amends the Evidence Act 1929 to allow for evidence to be taken by audio or audio

visual links in proceedings before South Australian courts, and for courts in other

states to use audio or audio visual links to take evidence or receive submissions fro

a person in South Australia.

C Statutes Amendment (Fine Enforcement) Act 1998: This Act reforms the system

of fine enforcement. The options for payment are increased, including voluntary

automatic deduction from wages, and banks accounts. The Act also abolishes

imprisonment for fine default in favour of alternative penalties including driver

disqualification, cessation of ability to do business with the Registrar of Motor

Vehicles and registration of a charge on land owned by the debtor. The Act also

includes a number of administrative changes, including removing from the police the

responsibility for executing default notices. This role is transferred to the Penalty

Management Unit of the Courts Administration Authority.

C Statutes Amendment (Young Offenders) Act 1998: This Act is concerned with

offenders serving a sentence in prison for offences committed when a juvenile. For

example, it enables a court to remand a youth who has attained 18 years of age in

a juvenile training facility rather than an adult detention centre where the offence

was committed while a juvenile.

C Bail Amendment Act 1995: This Act empowers police officers to impose bail

conditions on police bail, and a number of procedural safeguards in relation to the

imposition of unreasonable conditions by police. The Act also empowers police to

arrest persons released on bail who have contravened, or are about to contravene,

police imposed bail conditions.

C Criminal Code Amendment (Stalking) Act 1995: This Act creates the offence of

stalking. Stalking is defined as any of the following acts done with the intention of

causing another person physical or mental harm, apprehension or fear: following a

person, loitering outside the place of residence of a person or a place frequented by

a person, entering or interfering with the property of another person; keeping a

person under surveillance, or giving offensive material to a person. It is also stalking

when these acts are done to a third person if it is intended to cause harm, fear or

other persons.

C Criminal Law (Detention and Interrogation) Act 1995: This Act empowers police

to detain an arrested person for a reasonable time for the purpose of questioning and

Law and order legislation, 1995-1998

22

carrying out investigations. The Act sets out 12 indicia which must be considered

when determining what amounts to a reasonable time, and the rights of the accused

while in custody, for example, the right to an interpreter and the right to

C Criminal Process (Identification and Search Procedures) Amendment Act 1995:

This Act sets out procedures for fingerprinting persons aged 11 to 16 after they have

been arrested and charged. Fingerprinting may only be undertaken with the consent

of the young person and their parents, or by order of a magistrate, and must be

destroyed if the proceedings do not end in a conviction.

C Evidence Amendment (Children and Special Witnesses) Act 1995: This Act

introduces special provisions for the receipt of evidence from children under the age

of 17 years and special witnesses. A special witness includes a person whose

evidence may be affected by giving evidence in the ordinary way due to

characteristics such as a person’s intellectual, mental or physical disability or a

person’s age, cultural background, relationship to a party in the proceedings and the

nature of the evidence. The Act allows certain evidence to be given by way of video

link, and provides for the presence of a support person for a child witness. In a

related Act, the Justices Amendment (Child Witnesses) Act 1995, provision is

made whereby a child witness may only be summoned for cross examination in the

taking of depositions in the Local Court where the magistrate finds there are special

circumstances requiring the presence of the child.

C Police Offences Amendment (Liquor) Act 1995: This Act prohibits the

consumption of liquor in public streets and in any other public place prescribed in

regulations. The possession of opened or unsealed containers of liquor in public

streets or prescribed public places without reasonable excuse is also prohibited. The

Act also applies to persons who are in stationary motor vehicles in public streets or

prescribed public places. Police officers are empowered to detain, search and seize

any liquor found on a person who he or she reasonably believes to be contravening

the provisions.

C Criminal Injuries Compensation Amendment Act 1996: This so-called ‘Martin

Bryant’ amendment inserted new sections 13-41 into the principal Act. It provides

that where a person is convicted of a serious offence and applications for

compensation are likely to exceed $100,000 in value, the court may take control of

the property of the defendant and, on conviction, order forfeiture of property. The

State becomes the owner of the property, and all the money and all proceeds from

the sale of the property is to be paid into the special victims fund. In her review of

Law and order legislation, 1995-1998

23

Criminal Law Journal 152 at 156.

criminal legislation, Schurr notes that, unlike proceeds of crime legislation, nothing

C Criminal Procedure (Attendance of Witnesses) Act 1996: The Act provides for

securing the attendance of witnesses in criminal proceedings in the Supreme Court.

Amongst other things, a judge may require an intended witness to enter into a

recognisance on terms to be determined by the judge in order to secure the

attendance of the witness or the production of documents etc in his or her

possession (section 12). Where, on application by the prosecution or the accused

person, a judge may issue a warrant for the arrest of an intended witness where the

judge believes on reasonable grounds that the intended witness may (a) leave

Tasmania to avoid giving evidence, or (b) fail, or has failed, to comply with the

terms of a recognisance (section 13).

C Firearms Act 1996: This was part of the uniform gun control laws established after

the Port Arthur tragedy, as discussed earlier in this paper in relation to the relevant

NSW Act, p. 8.

C Children, Young Persons and their Families Act 1997: This is discussed below in

some detail in combination with the Youth Justice Act 1997. It can be noted here

that the Act, which is not yet in force, establishes a Commissioner for Children in

Tasmania. Further, the Secretary of the relevant Department is to establish one or

more advisory panels to provide advice on cases of actual or suspected abuse or

neglect. It is part of a general overhaul of the youth justice system in Tasmania.

C Corrections Act 1997: This Act, which repeals a number of major pieces of

and amends this area of the law:

C Part 2 of the Act deals with the administration of corrective services,

retaining the office of Director of Corrective Services.

C Part 3 deals with the establishment and control of prisons, including access

to prisons by official visitors and others. Under this Part, ‘formal searches’

by an electronic or mechanical device may be conducted to detect the

presence of drugs or weapons. Provision is also made for a prisoner’s child

to live with that prisoner if the Director is satisfied that certain conditions

apply (for example, if it is in the child’s best interests to live with his or her

parent or guardian in prison).

C Part 4 deals with the custody and treatment of prisoners and detainees. It

sets out the rights of prisoners and detainees which are said to be based on

Law and order legislation, 1995-1998

24

the Australian Standard Guidelines adopted by all Australian Governments.

As well, provision is made for the random testing and searching of prisoners

and detainees.

C Part 5 is concerned with transfers and other matters; Part 6 with interstate

leave of absence for prisoners; and matters relevant to prison discipline is set

out in Part 7.

C Part 8 deals with parole and includes provision for a three-person Parole

Board. For the first time, parole criteria are also set out, which include: the

likelihood of the prisoner reoffending; the protection of the public; and the

rehabilitation of the offender.

C Criminal Code Amendment (Alternative Verdicts) Act 1997: Chapter 39 of the

Criminal Code makes provision for alternative verdicts. That is, an offender charged

with one crime can, evidence permitting, be convicted of an alternative crime where

the jury is not satisfied of the offender’s guilt in respect to the first crime, but is

satisfied that the offender is guilty of a related crime arising out of the same incident.

For example, an offender charged with rape can be convicted, in the alternative, of

indecent assault if the jury is not satisfied that sexual penetration occurred. This

alternative would not need to be have been expressly included on the indictment.

Following a proposal suggested by the judges of the Supreme Court, this alternative

verdicts scheme was expanded under the present Act to include the crimes of:

inciting to commit a crime; attempting to commit a crime; and being an accessory

after the fact to a crime (section 342AA). For example, on an indictment for

attempted rape the jury could, as an alternative, convict of any of the available

alternative verdicts, such as aggravated sexual assault, incest or indecent assault.

According to the Second Reading Speech, the amendment would avoid the expense

C Criminal Code Amendment (Aggravated Burglary) Act 1997: This Act was passed

in response to perceived community concerns about the prevalence of home

invasions. It amends section 245 of the Criminal Code by adding additional

circumstances of aggravation to the crime of aggravated burglary, Thus, in addition

to such circumstances as the carrying of a weapon or using or threatening to use

violence, a person commits aggravated burglary under section 245 if: (a) the

burglary is committed with any other person or persons; (b) the place that is burgled

is ‘ordinarily used for the purposes of human habitation’; or (c) any person(s) is

deprived of liberty or otherwise assaulted.

C Road (Alcohol and Drugs) Amendment Act 1997: Before this amending legislation

was passed the principal Act permitted only one causal factor for driving under the

influence charges, that is, alcohol or drugs (not both). This amendment corrected

this anomaly by allowing for the prosecution of persons who drive under the

Law and order legislation, 1995-1998

25

influence of a combination of alcohol and drugs. This provision applies to a licenced

driver who is accompanying a learner driver.

Another feature of the present Act is that it requires a zero blood alcohol content for

those drivers who have been convicted on three separate occasions within a ten year

period. This requirement remains in force for ten years, after which time its removal

is made subject to the provision of a medical report that the driver is not alcohol

of a taxi licenced under the Taxi Industry Act 1995.

Further, police officers were given a power of arrest under the present Act where

a suspected offender fails or refuses to supply his or her name and address, or

provides details that are reasonably believed to be false.

C Search Warrants Act 1997: The purpose of this Act was to provide the police with

general powers of search and seizure, as well as to consolidate into one Act all

provisions relating to police search warrants. The Second Reading Speech

commented that the legislation was designed to amend the previous situation where,

for example, there was no general power for a police officer to search premises in

Under the present legislation, a justice of the peace may issue a warrant to search

premises if satisfied by information on oath that there are reasonable grounds for

suspecting that there is, or will be in the next 72 hours, any evidential material at the

premises. Applications may be made to a justice in person or, in certain situations,

by telephone. The warrant is not to remain in force longer than 28 days. The

legislation sets out when search warrants may be issued, what things may be

authorised by a search warrant and other relevant matters, including those

circumstances where searches may be conducted without a warrant in ‘emergency

situations’.

Following Schurr, it can be added that police must make an announcement prior to

entry and it is an offence to obstruct entry or execution or a search of a person. The

occupier must be shown a copy of the warrant and has a right to observe the search.

Incidental powers to the execution of a warrant include: police may conduct ‘frisk’

(pat down) or ‘ordinary’ (removal of jacket, hat, shoes, gloves) searches, but have

no authorisation to conduct strip searches; and police or any person assisting may

Law and order legislation, 1995-1998

26

p 22.

The Search Warrants (Consequential Amendments) Act 1997 repealed all other

provisions in various Acts relating to police powers to obtain search warrants.

C Sentencing Act 1997: This Act amended and consolidated Tasmania’s sentencing

law. The legislation sets out the principles of sentencing in section 3(e), as these

relate to deterrence, rehabilitation and punishment. However, in a strict sense the

legislation is not a codification of the law of sentencing. As the Second Reading

Speech noted, no mention is made in it of the general common law sentencing

operate alongside and in addition to the common law.

Schurr notes that among the penalties available is an ‘area restriction order’, which

orders that the offender must not ‘loiter in an area or class of areas’ during the

an order. This is one of a number of orders which are in addition to the sentence

imposed on an offender, the others being a ‘restitution order’ and a ‘compensation

order’. The last requires the offender to pay compensation for any injury, loss,

destruction or damage caused in the commission of the offence of burglary, stealing

or unlawfully injuring property (the order is discretionary for other offences).

A new statutory scheme of ‘probation orders’ is also established under the Act

(sections 37-42). The maximum term of probation orders is three years and they can

be combined with imprisonment, community service orders or a fine. Each probation

order contains specified ‘basic’ conditions, including: reporting to a probation

officer; not leaving Tasmania without permission; notifying any change of address

and complying with reasonable and lawful directions given by a probation officer.

A sentencing court may also order that one or more ‘special conditions’ are to be

included in a probation order, as for example: attendance at education or other

programs; assessment and treatment for alcohol or drug dependency; testing for

alcohol or drug use; and medical, psychological or psychiatric assessment or

treatment. It is an offence to breach a condition of a probation order without a

similar regime under sections 19-23 of the present Act.

Law and order legislation, 1995-1998

27

Study, 1998, p 58.

Acts are designed to replace the Child Welfare Act 1960. However, it should be

noted that neither of the 1997 Acts have been proclaimed to commence as yet and

are not due to be in force before mid-1999. At present, therefore, the system is still

It is said that the new model under the 1997 Acts represents a shift from the ‘welfare

model’ to a ‘restorative justice model’ in which there is greater emphasis on children

divert young people charged with minor offences, including first offenders, from the

court process where appropriate. For young people who are repeat offenders the

Youth Justice Act 1997 provides a greater range of sentencing options for the court,

including the introduction of a community service order for offenders over the age

of 13. Using Schurr as a guide, it can be said that the Act:

C places restrictions on the power of arrest and encourages the use of

complaint or summons;

C permits detainees in custody in a detention centre to have their children

present with them;

C requires that where a child is born to a youth in custody, the birth certificate

does not reveal in any way that the mother was in custody;

C establishes a statutory basis for formal and informal cautioning. In

appropriate cases cautions may be administered by an Aboriginal elder or by

a member of a particular religious, ethnic or other community to which the

youth belongs; and

C establishes community conferencing. Young offenders may be referred to

Before the Youth Justice Act 1997 can be proclaimed to commence five new

programs must have been established: a police cautioning/conferencing program; a

community service order program; non-custodial community placement services for

young offenders; a community conferencing program; and the completion of the

Youth Justice Information System.

The Children, Young Persons and their Families Act 1997 incorporates an

emphasis on supporting young people to maintain contact with their family and

involving families in making decisions about the ongoing safety and wellbeing of

their children. Indeed, the first principle upon which the administration of the Act

is based is that ‘the primary responsibility for a child’s care and protection lies with

the child’s family’ (section 8). Under Part 5 of the Act, family group conferences are

provided for where a child is ‘at risk’ and, further to an advisory panel report, such

Law and order legislation, 1995-1998

28

a conference is considered to be a suitable way of determining what arrangements

should be made ‘to secure the child’s care and protection’.

Interestingly, in contrast to the present model under the Child Welfare Act, neither

of the 1997 Acts appear to include a provision for a parent to be fined or ordered

to pay compensation in respect of offences committed by a child.

C Magistrates Court (Children’s Division) Act 1998: As part of the overhaul of the

Magistrates Court (Children’s Division), which replaces the old Children’s Court.

This new Court will not deal with the determination of offences, but with protection

orders and related welfare matters. The Court’s procedures and powers will in fact

be similar to the old Children’s Court. Its proceedings will not be open to the

C Drugs, Poisons and Controlled Substances (Amendment) Act 1995: In order to

facilitate the admission of analytical evidence in proceedings under the principal Act,

this amendment allows Victorian courts to accept certificates issued by analysts or

botanists in other States and Territories. Thus, if it is necessary to prove to a

Victorian court the identity of a drug or plant that has been analysed interstate,

neither the analyst or botanist must now be called. Note, however, that this does not

affect the defendant’s right under section 120(2) to have the analyst or botanist

called if he or she wishes. Rather, a certificate of interstate analysts or botanists will

be admitted in proceedings only where neither the prosecution nor the defence

requires their personal attendance in court.

C Miscellaneous Acts (Health and Justice) Amendment Act 1995: Amending the

Prostitution Control Act 1994, a new offence of permitting children over 18 months

to be in a brothel was created. Also, the rules relating to health checks and

applications for licences were amended.

C Children and Young Persons (Miscellaneous Amendments) Act 1996: Repealing

transfer of young persons between prison and youth training centres or youth

Law and order legislation, 1995-1998

29

residential centres by providing: (a) the transfer by the Adult Parole Board of a child

under 17 to a youth residential centre from prison if certain criteria are met; (b) the

transfer by the Youth Residential Board of a person from a youth residential centre

to a youth training centre if the person reaches an age which makes detention in a

youth training centre appropriate; and (c) in relation to a young person who was

originally sentenced to imprisonment but is detained in a youth training centre, the

Youth Parole Board may order the transfer back to prison of that person, where it

is appropriate for the remainder of his or her sentence to be served in prison.

The main power under the Youth Affairs Act 1986 related to the funding of

organisations that provide youth services. With the repeal of that Act, this power

now resides in the Minister for Youth and Community Services. The changes

followed the merger of the two portfolios of Community Services and Youth

Affairs.

C Corrections (Amendment) Act 1996: One aspect to this Act is that, by inserting a

new Part 9A into the Corrections Act 1986, it brings the powers of search and

seizure in police gaols under this legislation (which also sets out the search and

seizure powers exercised by prison officers). Among the search powers included

under Part 9A is the power to conduct a ‘formal search’ on any person ‘who wishes

to enter or remain in a police gaol as a visitor’, with ‘formal search’ being defined

as a ‘search to detect the presence of drugs, weapons or metal articles carried out

by an electronic or mechanical device’. In addition, ‘for the good order or security

of a police gaol or detained persons’, general searches may be conducted, at random

if necessary, on ‘any charged person, a visitor to the police gaol, a police officer or

any other person in the police gaol’ (however, a ‘visitor’ for these purposes does not

include a relative or friend of a detained person, a child, a magistrate or a Supreme

Court or County Court judge). Note that a ‘detained person’ and ‘charged person’

are defined differently under the Act, but that the former would appear to

incorporate the latter. Note, too, that before these amendments search and seizure

powers in police gaols were contained in the Corrections (Police Gaols) Regulations.

C Firearms Act 1996: This was part of the uniform gun control laws established after

the Port Arthur tragedy, as discussed earlier in this paper in relation to the relevant

NSW Act, p. 8.

C Miscellaneous Acts (Further Omnibus Amendments) Act 1996: Included were

amendments to the Prostitution Control Act 1994 the effect of which was to prohibit

the operation of brothels from floating vessels, as well as from other mobile

alternatives (indeed, from any premises which are not buildings on land).

C Victims of Crime Assistance Act 1996: Repealing the Criminal Injuries

Compensation Act 1958, this Act established a Victims of Crime Assistance

Tribunal, consisting of the Chief Magistrate and all other magistrates and acting

magistrates (section 19(2)). The Act provides for a maximum payment of: (a)

$60,000 for primary victims; (b) $50,000 for secondary victims, who suffer either

Law and order legislation, 1995-1998

30

because they were present and witness the act of violence or because they are the

parents or guardian of the primary victim; and (c) $100,000 for related victims, who

can be either close family members or dependents of a person who dies as a direct

result of an act of violence. The Tribunal must refuse an application if the alleged act

of violence was not reported to the police within a reasonable time (section 52). In

considering what would be a ‘reasonable time’ the Tribunal can have regard to a

range of things, including the victim’s age at the time the act of violence occurred,

whether the victim is intellectually disabled and the nature of the injury suffered by

the victim (section 53). The Tribunal can also take into account such things as the

applicant’s prior ‘criminal activity’ and whether the applicant provoked the act of

violence in question (section 54). Certain of the Tribunal’s final decisions are

reviewable by the Administrative Appeals Tribunal (section 59).

C Crimes (Amendment) Act 1997: At least two distinct categories of amendments

were introduced under this legislation, the first relating to evidentiary issues arising

from sexual offences, the second to forensic procedures. Under the first category,

assault trial wishes to cross-examine a complainant about the complainant’s sexual

activities, the defendant must give notice in writing to the DPP at least 14 days

before the trial, setting out the initial questions, the scope of the questions and the

relevance of the questioning. The legislation also removes any possible scope for

suggestion that delay in making a complaint in a sexual assault case carries an

implication that the complaint may be false (section 61 of the Crimes Act 1958).

Under the second category, significant amendments were made to the forensic

procedures law as this is stated under the Crimes Act 1958. These included new

provisions for the giving of consent to the taking and retention of samples (whether

intimate or non-intimate). Also, the requirement that intimate forensic procedures

be carried out by medical practitioners was amended to permit such things as the

C Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: As the Attorney

General explained in the Second Reading Speech, this legislation abolished what was

known as ‘the Governor’s pleasure system’ and established new procedures to deal

with persons who are charged with an indictable offence before the County Court

or the Supreme Court and ‘who are found to be unfit to be tried or not guilty on the

ground of mental impairment’. In effect, the legislation provides for the courts rather

Law and order legislation, 1995-1998

31

Under section 20 of the legislation the defence of ‘mental impairment’ replaces the

common law defence of insanity.

C Drugs, Poisons and Controlled Substances (Amendment) Act 1997: This Act was

passed to encourage the development of the commercial production of hemp in

Victoria. It followed a three-year field research program to test what is called ‘low-

THC hemp’, that is, cannabis varieties containing less than 0.35 per cent of the

psychoactive component, tetrahydrocannabinol. Before the present amendments the

provisions of the Drugs, Poisons and Controlled Substances Act 1981 prevented the

development of hemp processing by classifying cannabis as a narcotic plant and a

drug of dependence, regardless of the content of THC. The amendments inserted

two new parts in that principal Act to: (a) make provision for the issuing of

authorities to grow and process low-THC cannabis for commercial and research

purposes relating to non-therapeutic use; and (b) to exempt from the operation of

the Act certain processed products made from cannabis or cannabis seeds and which

do not pose a drug risk.

C Law and Justice Legislation Amendment Act 1997: This Act introduced a raft of

miscellaneous amendments, including:

trespass as set out in section 9(1)(d) of the Summary Offences Act was

amended, and the offence of forcible entry as set out in section 207(1) of the

Crimes Act was repealed. The amendments provide that if a person is

warned to leave a place but refuses to do so, the offence of trespass is

complete if the person refuses to leave the property (unless the person has

a lawful excuse, such as a policeman or firefighter).

C Law and Justice Legislation (Further Amendment) Act 1997: This Act was

described as introducing ‘a number of technical amendments across a range of

justice must not remand a person in custody for a period of more than 8 days. Also,

in assessing if there is an ‘unacceptable risk’ in granting bail, the court is now

directed to consider ‘the attitude, if expressed to the court, of the alleged victim of

the offence to the grant of bail’ (section 4(3)(e) of the Bail Act). Amongst other

things, the Firearms Act 1996 was amended to recognise permits to purchase

firearms issued by other jurisdictions participating in mutual notification

arrangements.

C Police and Corrections (Amendment) Act 1997: This Act contains a miscellany of

amendments to a number of principal statutes, including the Firearms Act 1996, the

Law and order legislation, 1995-1998

32

C Control of Weapons Act 1990 - in keeping with the national policy of the

Australasian Police Ministers Council, the possession, manufacture, sale or

purchase of body armour was prohibited (except where a general or

individual exemption applies).

C Firearms Act 1996 - among the other things, the principal Act was amended

to ensure that, in relation to clay target shooting, junior licence holders have

access to category C firearms. This was again said to be in conformity with

the policy of the Australasian Police Ministers Council.

C Prostitution Control (Amendment) Act 1997: The operation of the Prostitution

Control Board was amended in various ways, including altering the conduct of

disciplinary inquiries relating to licences and managers providing prostitution

services. The Act also introduced an offence of contempt of the Board.

C Sentencing (Amendment) Act 1997: A major purpose of this Act was to deal with

the situation where an offender promises to assist law enforcement authorities, with

the result that he or she is then dealt with more leniently than the circumstances

would otherwise permit, but afterwards fails to honour the promise when his or her

accomplices are tried. To meet this situation, the Sentencing Act 1991 was amended:

first to alter the sentencing guidelines in section 5 to ensure that the court notes in

the record that a less severe sentence has been awarded on the basis of a promise,

after sentencing, to assist law enforcement authorities; and, secondly, to allow the

DPP to appeal against the sentence once it is clear that the offender does not intend

to make good his or her promise. In other words, offenders who breach an

undertaking to assist law enforcement authorities can be resentenced.

Various amendments were also made to the fine enforcement scheme, including

those arrangements where certain fines can be converted into community work

orders.

Moreover, the Act rendered bodies corporate liable to a maximum fine for an

offence against the Crimes Act 1958 of 5 times the maximum to which natural

persons are liable.

C Sentencing and Other Acts (Amendment) Act 1997: In the Second Reading

Speech for the relevant Bill the Attorney General commented that the proposed

legislation was the product of a year-long review process which had progressed in

three distinct ways: a sentencing survey and information paper published in the

Herald Sun which elicited around 40,000 responses; public meetings and focus

group meetings held by the Victorian Community Council Against Violence; and

interviews with over 100 judges, magistrates and other key stakeholders in the

criminal justice system conducted by a Crown Prosecutor. It was said, in addition,

that the ‘community has clearly indicated dissatisfaction with sentencing levels for

certain serious offences’ and the purpose of the proposed legislation was to address

this concern by restoring ‘the faith and confidence of the public in the criminal

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33

to achieve this by:

C increasing the maximum penalties for 68 offences (77 sentences remained the

same and 12 were reduced). Most increases were in the order of two to

three years, but some were considerably larger, as for example in the case of

the offence of ‘production of child pornography’ where the maximum

penalty increased from 2 to 10 years.

C new part 2A was inserted into the Sentencing Act 1991 providing that, if a

person is declared to be a ‘serious offender’ and a prison sentence is to be

imposed, then the sentencing court: (a) must, unless otherwise ordered by

the court, impose a sentence which is cumulative on any existing sentence;

(b) must regard the protection of the community from the offender as the

principal purpose for which the sentence is imposed: and (c) may, in order

to achieve the purpose in (b), impose a sentence longer than that which is

proportionate to the gravity of the offence considered in the light of its

objective circumstances.

C a new offence of supplying a ‘drug of dependence’ to a child less than 18

years was introduced.

C a new sentencing option of combined custody and treatment orders was

introduced when a court is satisfied that drunkenness or drug addiction

contributed to the commission of the offence. In considering a sentence of

not more than 12 months imprisonment, the court may stipulate that the

second half of that period be served in the community.

C amending the Bail Act 1977 to require a court to refuse bail to a person

charged with trafficking in a commercial quantity of a drug of dependence

(unless exceptional circumstances exist).

C amending the Children and Young Persons Act 1989 so at to limit the

jurisdiction of the Children’s Court to hear and determine offences of

attempted murder, culpable driving or arson causing death. Supporting this

change, the Second Reading Speech stated, ‘Recent cases involving children

charged with serious crimes have highlighted the need for such cases to be

heard in the higher courts before a jury and in circumstances where the judge

C Victims of Crime Assistance (Amendment) Act 1997: Amendments under this Act

related to the operation of the Victims of Crime Assistance Tribunal which started

work on 1 July 1997. Specifically, the amendment concerned: delegations by the

Chief Magistrate to Tribunal staff; the power of the Tribunal to issue a warrant for

the arrest of a witness who does not answer a summons; and the protection of court

psychiatric treatment in the form of an interim award.

Law and order legislation, 1995-1998

34

C Bail (Amendment) Act 1998: This Act clarified the test which a court should apply

before granting bail to a person charged in Victoria with importation of drugs under

the Commonwealth Customs Act 1901. In particular, a court must be satisfied that

exceptional circumstances exist before granting bail to a person charged with

importing a commercial quantity of drugs under the Commonwealth Act.

C Crimes (Amendment) Act 1998: This Act dealt with a number of discreet areas, as

follows:

C First, it ensured that section 60B (Loitering near schools) of the Victorian

Crimes Act 1958 would apply to persons who have been found guilty of

relevant prior sexual offences, regardless of when those offences were

committed.

C Secondly, it extended section 60B to include loitering by persons who have

been convicted of certain prostitution offences involving children (including

causing or inducing a child to take part in prostitution).

C Thirdly, the Act removed section 248 of the Crimes Act and replaced it with

5 new sections based on the contamination of goods provisions in Part 8.1

of the Model Criminal Code.

C Fourthly, apparently in response to problems encountered in particular cases

(for example, R v Frugniet), the Crimes Act was altered to enable a court to

take into account any vexatious or unreasonable conduct engaged in by the

accused that has contributed to his or her inability to afford legal

representation. Also, it was made clear that it is for the accused to prove that

he or she cannot afford the costs of obtaining legal representation, rather

than for Victoria Legal Aid to prove that he or she can.

C Crimes, Confiscation and Evidence Acts (Amendment) Act 1998: Section 464ZD

of the Victorian Crimes Act 1958 was amended to ensure that all persons on whom

forensic procedures are conducted are provided with a copy of every forensic report

as soon as practicable. In addition, section 464ZE was amended to ensure that a

failure to provide a copy of every forensic report to the person within 7 days of its

receipt by the prosecution will result in evidence obtained by the forensic procedure

being inadmissible (this is made subject to certain exceptions in sections 464ZE(2)

and (2A)).

C Firearms (Amendment) Act 1998: Further to a review of the operation of the

Firearms Act 1996 certain issues were identified requiring legislative amendment.

These were said to be mostly ‘concerned with minor technical or drafting matters,

Act were defined to include: improving the consistency and workability of the 1996

Law and order legislation, 1995-1998

35

statute; and, while maintaining the nationally agreed firearms licensing system, the

registration of firearms, training standards and sales and storage requirements, to

reduce unintended or unforseen impacts where no community benefit is realised.

However, parts of the proposed legislation proved to be controversial, particularly

the provision in the Bill to alter the 28-day waiting period rule on the purchase of

firearms to ensure there is sufficient time for police checks on applicants. The

amendments did not apply to those purchasing a firearm for the first time. In effect,

section 107 of the principal Act continues to enforce the 28 day waiting period for

those acquiring their first firearm; but provides that in any other case the permit is

nor issued until sufficient time has expired to allow the Chief Commissioner to

consider the application properly.

C Public Prosecutions (Amendment) Act 1998: The powers of the Victorian DPP

were expanded to include amongst other things: the taking over of any summary or

indictable prosecution; the conduct of proceedings of a civil nature, such as

confiscation of proceeds of crime and prerogative applications related to criminal

proceedings and contempt of court; and the granting of an indemnity from

prosecution (not just recommending that the Attorney General grant the indemnity).

C Summary Offences (Amendment) Act 1998: The Act inserts new section 53 (6AA-

6AD) into the Summary Offences Act 1966 and provides that, where a person in

Victoria is convicted of making a false report to the police, in addition to any other

punishment the offender may be liable to also pay police costs arising from the false

report. The liability is defined as ‘a reasonable amount for expenses, including

remuneration payable to members of the police force, incurred by the State arising

out of or incidental to the commission of the offence’.

of sentencing options than previously existed in WA, for example new conditional

release orders, intensive supervision orders and community based orders are created,

which enable the offender to be released on conditions the court considers necessary.

It also enables victim impact statements to be taken into account by the Courts when

determining a sentence. The Act also abolishes imprisonment for periods of there

months or less, replacing such sentences with intensive supervision orders or

suspended sentences.

Law and order legislation, 1995-1998

36

C Criminal Code Amendment Act (No 2) 1996: This Act creates the offence of home

burglary, distinct from burglary in any other place, and gives this new offence a more

severe maximum penalty (18 years). Where circumstances of aggravation

accompany burglary, a higher maximum penalty also applies (20 years).

Circumstances of aggravation include possession or pretending to possess an

explosive, where there are more than one offender, where bodily harm was inflicted

on another person, where there was a threat to injure or kill another person or to

deprive that person of his or her liberty, or where the offender knew or should have

known that there was another person other than a co-offender in the premises at the

time of the burglary. The Act also provides that where a person convicted of an

offence of home burglary has two or more previous convictions for such an offence,

the court must sentence the offender to a minimum of 12 months’ imprisonment (12

months’ detention in a juvenile facility where the offender is not an adult).

C Criminal Law Amendment Act 1996: This Act contains a number of relevant

provisions.

C It extends Western Australia’s extraterritorial jurisdiction in relation to

criminal offences, insofar as if an act or omission would constitute an offence

within WA, the person committing the act or omission attracts the

jurisdiction of WA regardless or where the person resides. This provision is

aimed at drug traffickers where the headquarters is located outside WA, who

provide drugs within the State.

C Summary penalties have been ascribed to a number of offences to enable

them to be dealt with in the Magistrate’s Court. The offences include minor

sexual offences and offences related to fraud, impersonation and obstructing

the course of justice.

C The Act also broadens the scope of sections dealing with protection of

person and property. It makes it lawful for a person to use such force as is

reasonably necessary to prevent the commission of any offence in the home.

Previously only indictable offences were within the scope of the provisions.

The Act also extends the definition of a “dwelling house” to include any

place used for human habitation.

C Criminal Law (Mentally Impaired Defendants) Act 1996: This Act applies to

mentally impaired defendants from when they are first charged with an offence

through to their ultimate release from a custodial order. Mental impairment is

defined to include intellectual disability, mental illness, brain damage or senility. The

Act contains provisions relating to: the remand of a defendant who appears to have

a serious mental illness to a hospital for a psychiatric examination; the question of

mental unfitness to stand trial (both summarily and in superior courts); which give

summary courts the power to release defendants either conditionally or

unconditionally because of unsoundness of mind (ie acquittal), and the establishment

of the Mentally Impaired Defendants Review Board, whose role it is to make

decisions about the custody of mentally impaired defendants.

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37

C Firearms Amendment Act 1996: This Act contains comprehensive amendments to

the Firearms Act 1973, reflecting the national uniform approach agreed upon by the

Australian Police Ministers’ Council and the national buy back/compensation

C Restraining Orders Act 1997: This Act contains a number of procedural reforms

which include: distinguishing between violence restraining orders (which relate to

protection from personal violence) and misconduct restraining orders (which relate

to damage to property, disorderly conduct etc); providing for a restraining order to

be made to prevent a person from loitering near schools or places frequented by

children if that loitering causes children or their parents to fear for their safety;

requiring that firearms be surrendered or seized when a violence restraining order

is made, and allowing for applications for violence restraining orders to be made

over the telephone in urgent cases.

C Acts Amendment (Video and Audio Links) Act 1998: This Act applies where a

person is committed for trial or sentence before any court for an indictable offence

and is in custody (whether in relation to that offence or not). The court may order

that, instead of being brought before the court personally, the person may be

brought before a video link or other similar device.

C Bail Amendment Act 1998: This Act, inter alia, extends the exceptions to the

presumption of the right to bail to include situations where the offence was

committed while the accused was on parole, work release or home detention. It also

extends this exception to situations where the offence itself is in breach of bail

conditions. Breach of some bail conditions (“protective conditions” - those aimed

at protecting the safety, welfare or property of alleged victims) does, by itself,

constitute an offence under the amended Act.

The Act also removes the right of police officers and justices of the peace to grant

bail to repeat serious offenders in urban areas. In remote and non-urban areas police

still enjoy this discretion.

C Criminal Law Amendment Act (No 1) 1998: This Act makes a number of

amendments:

C The Act authorises the taking of forensic samples (blood, saliva, hair or nail

clippings or buccal swab) from persons in custody where there is a

reasonable expectation that the material gathered will form evidence of the

commission of an offence.

Law and order legislation, 1995-1998

38

C The Act replaces the provisions relating to stalking which removes the

requirement of intent on the part of the accused - it is sufficient that the

victim fears for his or her safety or is prevented from going about his or her

normal life.

C The Act also amends the Sentencing Act 1995 so that when the Court is

determining a life sentence, the normal factors which determine eligibility for

parole should not be considered - instead the Court must have regard to the

community’s interest in punishment, retribution and deterrence.

C Criminal Law Amendment Act (No 2) 1998: This Act, inter alia, increases the

maximum penalty for grievous bodily harm from seven to 10 years. The Act also

provides that where an offender has promised to assist law enforcement agencies but

reneges on that promise, the prosecution can request the court substitute the

sentence that would have been imposed if the cooperation had not been taken into

account.

C Police Amendment Act 1998: This Act amends the Police Act 1892 with respect

to police powers to stop, detain and search a person who is suspected of causing or

intending to cause damage consisting of graffiti, and empowers the police to seize

any thing that an officer suspects relates to the commission of a graffiti offence.

conversation to which he or she is not a party, and if he or she is a party, without

consent. The Act also prohibits optical surveillance used to record private activities

to which the person is not a party, and the use of a tracking device to determine the

geographical location of a person or object without consent. Exemptions are

provided for the police, Anti-Corruption Commission and the National Crime

Authority.

C Crimes Amendment Act 1995: This Act, inter alia, abolishes the “year and a day”

rule in the ACT. This rule provides that a person cannot be convicted of murder if

the victim dies more than a year and a day after the infliction of the injury which

caused the death. An example given where this rule may be inappropriate is with

respect to syringe injuries where the blood may contain HIV. It also provides that,

where a person is accused of sexual acts against a child under 10 years of age and

the jury is convinced all the elements of the offence are proven except for the child’s

age at the time, the jury does not have to acquit the accused, but may instead find

the accused guilty of a sexual offence against a child under 16.

Law and order legislation, 1995-1998

39

C Periodic Detention Act 1995: This Act creates a periodic detention system for the

ACT, similar to that which operates in NSW. Periodic detention will involve

convicted offenders attending at the detention centre for between 12 and 104

consecutive periods from 7.00 pm on Fridays until 4.30 pm on Sundays. This

corresponds to an obligation from three months up to two years. Offenders will be

that any sentence or order would have on any of the person's family or dependents;

the prospect of rehabilitation of the offender, and the deterrent effect that any

sentence order under consideration may have on any person.

C Crimes (Amendment) Act 1996: This Act authorises police to take blood, saliva or

hair samples from a charged person in custody without his or her consent, after

authorisation from a magistrate.

C Crimes (Amendment) Act (No 2) 1996: This Act created the offence of stalking in

the ACT.

C Criminal Injuries Compensation (Amendment) Act 1996: This Act introduces a

levy of $30 payable by any person convicted of an offence or who has paid an

infringement notice. The sentencing court may excuse offenders who are under 18

years of age, or who have been convicted of another offence on the same day, or

where another offence has been taken into consideration in sentencing.

C Firearms Act 1996: This Act, which repealed the Weapons Act 1991, was part of

the uniform gun control laws established after the Port Arthur tragedy, as discussed

earlier in this paper in relation to the relevant NSW Act, p. 8.

C Prohibited Weapons Act 1996: With the introduction of the Firearms Act 1996 and

the repeal of the Weapons Act 1991 another piece of legislation was required to deal

with prohibited weapons not classed as firearms. This was the purpose of the present

Act which sets out a list of prohibited weapons in Schedule 1. The penalties under

the Act are a fine of up to $10,000 or imprisonment for 12 months for a person, or

a fine of up to $50,000 for a body corporate.

C Weapons (Amendment) Act 1996 and Weapons Act (Amendment) (No 2) 1996:

Both these Acts were repealed by the Firearms Act 1996, as part of the national gun

law scheme.

Prior to the amendment, there was only power for a watch-house sergeant to order

Law and order legislation, 1995-1998

40

a strip search. The amendment, on the other hand, permits a less extreme course of

action, by allowing an ordinary search or a frisk search to be conducted where a

police officer suspects on reasonable grounds that the person in lawful custody may

be carrying evidential material or seizable items.

C Crimes (Amendment) Act (No 3) 1997: This Act amends section 444 of the Crimes

Act 1900 to permit a court, when imposing a sentence on an adult, to take into

account the unserved component of any juvenile sentence still applying to that

person, and to discharge it. This would prevent an adult offender, on the expiry of

his or her sentence, being returned to a juvenile detention facility to complete the

outstanding balance of a juvenile custodial order or an attendance centre order.

C Crimes (Amendment) Act (No 4) 1997: The effect of this Act is to permit police

officers to issue ‘offence notices’ (or expiation notices) in respect to noise abatement

offences (under section 546C of the Crimes Act 1900) and drinking in public places

offences (under section 84 of the Liquor Act 1975)

C Juries (Amendment) Act 1997: This Act gives a judge in a criminal trial a discretion

to direct that an expanded jury of up to 16 jurors be empanelled, thus reducing the

risk of a criminal trial having to be abandoned because the number of jurors falls

below the required minimum number. Unlike the reserve juror system, all members

of the jury are of equal status and when the time comes for the jury to retire and

consider its verdict, if more than 12 remain, the number is reduced to 12 by the

names of the jurors being drawn out of a ballot-box until 12 jurors remain unselected

(section 31A).

Another feature of the Act is that it seeks to enure the confidentiality of the jury

process by creating 3 new offences: disclosing information about the deliberation of

a jury if the person is aware that, as a consequence, the information will be, or is

likely to be, published; soliciting or obtaining information about jury deliberations

with the intention of publishing or facilitating the publication of that information; and

publishing information about the deliberations of a jury (section 42C).

C Magistrates Court (Amendment) Act 1997: Consistent with the amendments made

against a person who holds a firearms licence, to order the seizure of the licence and

the ammunition as well as any firearm. Note that restraining orders are similar to

protection orders made under the domestic violence legislation, except that

restraining orders are not limited to the protection of certain classes of persons, for

example, spouses or de facto spouses.

C Motor Traffic (Amendment) Act (No 2) 1997: Among the amendments introduced

under this Act was an increase in the minimum licence cancellation period for

Law and order legislation, 1995-1998

41

culpable driving. A special probationary licence is still available where a person can

prove that exceptional circumstances exist.

C Prostitution (Amendment) Act 1997: This Act requires brothel and escort agency

operators to provide updated information to the Registrar of Brothels and Escort

Agencies annually.

C Children’s Services (Amendment) Act 1998: The Children’s Services Act 1986 was

amended by the present Act to allow fines imposed on children to be recovered

detention at a juvenile institution.

C Crimes (Amendment) Act 1998: This Act amends the Crimes Act 1900 with respect

to the purposes of sentencing, which are: to punish the offender to an extent which

is appropriate in all the circumstances; to deter the offenders from reoffending; to

rehabilitate the offender; to make a clear statement regarding the unacceptableness

of the offender’s conduct, or to protect the community from the offender.

C Crimes (Amendment) Act (No 2) 1998: This Act creates a number of knife-related

offences: possession of a knife in a public place or school, and sale of a knife to a

person under the age of 16 years. It also empowers police officers to conduct a

search of a person where there is a reasonable suspicion that the person has

possession of a knife, and seize any knife found as a result of the search.

C Crimes (Amendment) Act 1998 (No 3): This Act, which is to be read with the

Magistrates Court (Amendment) Act 1998, ensures that periods of imprisonment for

fine default are served cumulatively. It also revises the provisions which enable fine

defaulters to perform community service work as an alternative to imprisonment.

C Crimes (Amendment) Act (No 4): This Act provides, in a trial on indictment before

the Supreme Court, that the defence may address the jury last. However, where

relevant matters are asserted by the defence which are not supported by the evidence

before the jury, the Act also ensures that the prosecution is able to address the jury

in reply.

C Crime Prevention Powers Act 1998: This Act empowers police officers to direct

a person to leave the vicinity of a public place if that officer has reasonable grounds

that the person has engaged, or is likely to engage, in violent conduct in that place.

C Remand Centres (Amendment) Act 1998: This Act enables fine defaulters to serve

out their period of imprisonment at a remand centre.

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42

C Juvenile Justice Amendment Act 1995: This Act, inter alia, provides that juvenile

detention centres should not accommodate young offenders who are older than 17.

They must be accommodated in adult facilities. The Act also removes the

requirement that the Minister approve of the use of isolation as a punishment in a

juvenile detention centre.

C Sentencing Act 1995: This Act provides a new sentencing regime in the NT. It

includes a range of penalties - release without conviction, bonds, fines, community

service orders, suspended sentences, home detention and imprisonment. It also

provides for indefinite sentences for violent offenders, with periodic review and the

possibility of discharge of the indefinite sentence. The Act also empowers the court

to impose ancillary penalties, including orders for restitution, compensation,

cancellation of license and surrender of passport.

C Summary Offences Amendment Act 1995: This Act provides that a police officer

is required to immediately open all containers, opened or unopened, in the immediate

vicinity or possession of a person the officer believes has broken the “2 kilometre

rule” and empty those containers. The “two kilometre rule” is contained within

section 45D of the Summary Offences Act: a person who, within 2 kilometres of

licensed premises drinks liquor in a public place or on unoccupied private land is

guilty of an offence. The previous monetary penalty of $200 is repealed by the Act,

the only penalty now being the forfeiture of the liquor.

C Summary Offences Amendment Act (No 3) 1995: This Act makes it an offence for

a convicted sex offender to loiter near schools, kindergartens, child-care centres and

public places frequented by children.

C Bail Amendment Act 1996: This Act extends the presumption against bail to

include serious drug offences contained in the Commonwealth Customs Act 1901,

such as the importation of heroin into Australia from another country.

C Criminal Code Amendment Act (No 2) 1996: This Act creates the offence of sexual

intercourse or gross indecency by a provider of services to mentally ill or

handicapped persons, the maximum penalty being imprisonment for seven years.

C Criminal Code Amendment Act (No 3) 1996: This Act provides justification for a

police officer who uses force causing death or grievous bodily harm while

attempting to arrest a person who he or she reasonably believes, if not arrested, may

Law and order legislation, 1995-1998

43

commit an offence punishable by life imprisonment or has taken flight to avoid

arrest, and has been called upon to surrender but has not done so.

C Criminal Code Amendment Act (No 4) 1996: This Act creates the offence of

possession of child pornography. The offence of selling, offering or advertising for

distribution child pornography is also created, with a maximum penalty of 10 years’

imprisonment. The Act also creates the offence of publishing indecent articles, which

are defined in the Act to be child pornography or articles which promote crime or

violence or an article which describes or depicts, in a manner that is likely to cause

offence to a reasonable adult, the use of violence or coercion to compel a person to

participate in sexual conduct, sexual conduct with the body of a dead person, the use

of urine or excrement in association with degrading, dehumanising or sexual

conduct, bestiality, or acts of torture or the infliction of extreme violence or cruelty.

These Acts are part of a national drive for uniform child pornography laws,

recommended by the Standing Committee of Attorneys-General.

C Criminal Code Amendment Act (No 5) 1996: This Act enables the Administrator

to impose conditions on the release from custody of persons acquitted on the

grounds of insanity. For example, such a person may be subject to requirements of

regular or periodical reporting, counselling or treatment.

C Juvenile Justice Amendment Act 1996: This Act empowers the courts to vary and

revoke juvenile good behaviour bonds. It also establishes a juvenile community

service order scheme. The scheme mirrors that which is contained within the

Sentencing Act 1995 which applies to adults, and has provisions for breach, variation

and revocation of the orders.

C Juvenile Justice Amendment Act (No 2) 1996: This Act implements a system of

mandatory minimum sentences for property offenders aged between 15 and 17

years. It is a similar system to that implemented with respect to adults in the

Sentencing Amendment Act (No 2) 1996. Where a juvenile is found guilty of a

property offence and has one or more similar convictions a minimum sentence of 28

days detention in a juvenile detention centre applies. In addition to that order, the

court may make a punitive work order of not more than 224 hours to be completed

within such time as the court orders.

C Juvenile Justice Amendment Act (No 3) 1996: This Act makes provision for victim

impact statements and victim reports to be taken into consideration by a court when

sentencing a juvenile convicted of an offence. Both primary and secondary victims,

who suffered harm as a result of the juvenile’s actions, are entitled to make a

statement.

C Misuse of Drugs Amendment Act 1996: This Act enables a penalty notice for an

amount of up to $200 to be issued for certain cannabis offences: possession and

cultivation of one or two plants, and possession of up to 1g cannabis oil, 50g of

Law and order legislation, 1995-1998

44

cannabis plant material, 10g of cannabis oil or 10g of cannabis seed. If the person

does not pay the penalty in the notice, the police may commence prosecution.

C Sentencing Amendment Act 1996: This Act enables victim impact statements to be

presented to the court in relation to all offences where there is an identifiable victim.

The statements must detail the harm suffered by the victim arising from the offence.

Both primary and secondary victims of the crime may make statements.

C Sentencing Amendment Act (No 2) 1996: This Act, inter alia, introduces

mandatory minimum penalties for certain property offences. The penalty scale is as

follows: adult 1st offence - 14 days; adult with one prior property offence conviction

- 90 days; adults with two or more prior property offence convictions - 12 months;

juvenile aged between 15 and 17 years with one or more prior property offence

convictions - 28 days in a detention centre (to be served continuously or

periodically). The offender may also be sentenced to a punitive work order not

exceeding 224 hours, which cannot be served at a rate exceeding 8 hours per day.

If an offender breaches the work order, the court must then sentence the person to

a mandatory minimum sentence of 28 days imprisonment.

C Summary Offences Amendment Act (No 2) 1996: This Act makes it an offence to

possess, carry or use an offensive weapon without a lawful excuse. The maximum

penalty for this offence is imprisonment for 12 months or a fine of $2,000.

C Firearms Act 1997: This Act is part of the national uniform approach agreed upon

p. 8, above.

C Justices Amendment Act 1997: This Act enhances and enlarges the jurisdiction of

the Magistrate’s Court to deal with crimes triable summarily. There is a class of

offences which are triable summarily without the consent of the accused. In respect

of a property crime, the value of property involved is lifted from $400 to $5,000.

The five year maximum sentence which a court may impose for a property crime

tried summarily has not been changed. However, the court’s power to send the case

to the Supreme Court for sentencing if it considers the maximum penalty available

to it is inadequate has been curtailed - it may only do so now with the consent of the

prosecution. Previously, a court comprised of two or more justices of the peace was

able to deal with property matters involving up to $10 value. This Act abolishes this

power of JPs. The Act also amends section 121 of the Justices Act with respect to

those offences for which the accused may decide to have tried summarily in the

Magistrates Court. The Act extends this class of offences so that all unlawful use of

motor vehicle offences, regardless of the property damage, all unlawful entries

Law and order legislation, 1995-1998

45

except those at night or where the offender is armed, and all property offences

irrespective of value may now be tried summarily with the accused’s consent.

C Court Security Act 1998: This Act appoints security officers to courts, and

empowers those officers to require a person on or entering a court’s premises to

state his or her name and address, and reason for being on the premises, and provide

evidence as to his or her identity. The person may be asked to submit his or her

person or any goods in his or her possession to a screening search (by means of

electronic scanning), and when necessary in the interests of security, a frisk search.

Persons entering a court may be required to deposit with the security officer any

placard, poster or other object which is threatening, insulting, offensive, indecent or

likely to engender violence, create a breach of the peace or unreasonably cause

substantial annoyance ton another person on the court’s premises. The person may

also be required to deposit with the security officer any object reasonably capable

of concealing a firearm, explosives or offensive weapon. If the person fails to comply

with any of these requirements, the security officer may cause the person to be

removed from the court premises. Offences of failing to comply are also created,

with penalties ranging from a maximum penalty of $2,000 for failing to provide a

name, address etc to a maximum penalty of $25,000 or five years imprisonment for

possessing a firearm, explosive or offensive weapon on court premises.

C Criminal Code Amendment Act 1998: This Act amends the Criminal Code so that,

if an accused person pleads ‘not guilty’ to an offence, and the prosecutor does not

intend to adduce any evidence in respect of that offence, the prosecutor must, prior

to the empanelling of the jury, inform the trial judge of this decision. The judge may

then make a finding that the accused is not guilty. This finding will have the same

effect as if the accused had been found not guilty by the jury.

to a person who had been convicted by the Court of Summary Jurisdiction and

sentenced to a non-custodial order, and who had instituted an appeal in the Supreme

Court. Previously only justices of the Supreme Court had enjoyed such a power to

grant bail regardless of whether the appellant was in custody or not.

C Juvenile Justice Act (No 2) 1998: This Act enables a court, when sentencing a

juvenile, to give credit for time already spent in detention, by backdating the

sentence. It also widens the provision in section 25 of the Juvenile Justice Act which

provides that juveniles be treated as if they were adults in respect of certain offences

against the Traffic Act. These offences include driving under the influence alcohol

or drug, refusing to submit to a breath test, dangerous driving, driving whiles

disqualified or unlicensed and driving an unregistered or uninsured vehicle.

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46

C Kava Management Act 1998: As a consequence of this Act, there was the

imposition of an immediate ban on the sale, supply and possession of kava in the NT.

The Act provides for the declaration of licence areas where kava may be sold and

used by community residents, subject to the issue of wholesale and retail licenses.

Supply of a commercial quantity of kava - more than 25 kg or 25 litres when

prepared as a drink, carries a maximum penalty of 14 years imprisonment. Those in

possession of a small amount of kava - 2kg or less than 25 litres when prepared as

a drink, are subject to seizure and destruction of kava in their possession.

kava that they enjoy with respect to illegal drugs.

to undertake a punitive work order, and strengthens the mandatory sentencing

regime in respect of property offenders. With respect to mandatory sentencing, the

Acts make the following amendments:

C the intention of the provisions is clarified, namely to sentence the offender

to actual imprisonment. The sentence cannot be served by way of periodic

detention, suspension, community service orders or home detention.

C the mandatory period cannot be taken into consideration in the case of a

sentence in excess of the mandatory period for the purpose of determining

a non-parole period. The non-parole period must relate only to the nonproperty

offences.

C the mandatory period cannot be served concurrently with the term of

imprisonment for another offence.

C offenders with lengthy criminal records for serious non-property offences are

not to take advantage of mandatory minimum sentences - such sentences are

the absolute minimum and the court may impose a lengthier sentence on

such offenders according to the particular circumstances of the case.

C the offences which attract compulsory detention are extended to include

section 61 of the Summary Offences Act, which deals with persons

suspected of having stolen goods.

The Acts also make a number of amendments with respect to punitive work orders:

C the punitive work order scheme is extended to all offences. Prisoners

undertaking punitive work orders are not entitled to any payment as

provided for normal prison work undertaken.

C punitive work orders may be undertaken as the whole sentence, or as a part

of an actual term of imprisonment or detention.

C the commission of an offence in another Australian jurisdiction constitutes

a breach of a punitive work order, not only a breach of a NT law, as

previously applied. Where a punitive work order is subject to a review, the

court which imposed the order must be the review court.

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47

From this survey of criminal legislation in the Australian States and Territories, it is clear that, to some extent or other, the law and order debate has had a significant impact in all jurisdictions. Revised sentencing laws, the introduction of tougher penalties and a focus on sex-related and weapons offences are among the common themes of recent criminal legislation, as is a new emphasis on the role of the victim in the criminal justice system.

All these initiatives can be viewed as part of the ‘get tough’ on crime approach which in the 1990’s has become the common currency of the political debate about law and order.

However, that debate has also given rise to certain creative and experimental responses to the seemingly intractable problems of criminal behaviour, especially as this relates to young offenders. Notable in regard is the introduction in many jurisdictions of youth conferencing schemes which, in relation to juvenile justice at least, seems to point towards a different pathway through the law and order maze, one that combines the tough features of restitution with a more community based approach to justice.

The reforms in firearms legislation highlight the trend in certain areas towards a more national uniform approach to high profile law and order problems. With developments towards a model criminal code and other initiatives, we may observe a more general trend in future towards greater uniformity. On the other hand, we can also expect State and Territory law and order legislation to exhibit identifiably unique features.