Justice Legislation Miscellaneous Amendments Act 2009

Justice Legislation Miscellaneous Amendments Act 2009 No. 87 of 2009

TABLE OF PROVISIONS Section

Page

PART 1—PRELIMINARY 1 2

1

Purposes Commencement

1 2

PART 2—AMENDMENTS TO CRIMES LEGISLATION 3 4

5 6

Recording of confessions and admissions New sections 464JA to 464JD inserted 464JA Offences in relation to recordings 464JB Court may give directions in relation to a recording 464JC Retention of copy of recording 464JD Use of recordings for training, teaching or testing purposes New section 614 inserted 614 Transitional provision—Justice Legislation Miscellaneous Amendments Act 2009 Interlocutory decision

PART 3—AMENDMENTS TO MAJOR CRIME LEGISLATION 7 8 9 10 11

Witness already held in custody Revocation of coercive powers orders Preliminary requirements Restriction on publication of evidence Amendment of Major Crime Legislation Amendment Act 2009—Restriction on publication of evidence

3 3 4 4 10 10 12 13 13 13 14 14 14 14 15 15

PART 4—AMENDMENTS TO SHERIFF ACT 2009 AND RELATED AMENDMENTS TO OTHER ACTS

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Division 1—Amendments to the Sheriff Act 2009

16

12 13

Execution and return of warrants and other processes Requirements in relation to entry to premises to execute civil warrants

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16 16

Section 14 15 16 17 18 19 20 21 22 23 24 25

Page Sheriff may demand and receive payment in relation to money warrants New h eading to Division 10 of Part 3 New heading to section 32 All warrants in a multiple warrant situation must be executed at the same time Execution of warrant to imprison and infringement warrant Execution of warrant to imprison and warrant to arrest Execution of warrant to imprison, warrant to arrest and infringement warrant Offence to resist sheriff, deputy sheriff or sheriff's officer Offence to assault sheriff, deputy sheriff or sheriff's officer Offence to escape from lawful custody of sheriff, deputy sheriff or sheriff's officer Offence to rescue or attempt to rescue goods Offence to impersonate sheriff, deputy sheriff or sheriff's officer

Division 2—Amendments to other Acts 26 27 28 29 30 31

Commonwealth Games Arrangements Act 2001— proceedings where refusal to give up possession EastLink Project Act 2004—proceedings where refusal to give up possession EastLink Project Act 2004—proceedings where refusal to give up possession Land Acquisition and Compensation Act 1986—proceedings where refusal to deliver possession Project Development and Construction Management Act 1994—proceedings where refusal to give up possession Road Management Act 2004—proceedings where refusal to give up possession

PART 5—AMENDMENTS TO TELECOMMUNICATIONS (INTERCEPTION) (STATE PROVISIONS) ACT 1988 32 33 34 35 36 37 38 39

Purpose of Principal Act Definitions Documents connected with issue of warrants to be kept Other records to be kept in connection with interceptions Documents to be given to the Police Minister Documents connected with issue of warrants to be kept Other records to be kept in connection with interceptions Documents to be given to the Police Integrity Minister

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17 17 17 17 17 18 19 20 20 21 21 21 22 22 22 22 23 23 24 25 25 25 27 28 28 28 29 29

Section

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PART 6—AMENDMENT TO INFRINGEMENTS ACT 2006 AND RELATED AMENDMENTS TO OTHER ACTS

30

Division 1—Amendment of Infringements Act 2006

30

40 41 42 43 44 45 46 47 48 49 50 51 52

53 54

55 56 57

Cancellation of certain infringement notices Applications for revocation of enforcement orders Powers to revoke enforcement orders Applying for payment order Infringements registrar may make payment order Consequences of default under a payment order New section 81A inserted 81A Recall and cancellation of infringement warrant Warrant void after 5 years New sections 94A and 94B inserted 94A Infringements registrar may stay infringement warrant 94B Fresh infringement warrant following expiry Direction not to renew driver licence or motor vehicle registration Division 1 of Part 10 repealed When can an attachment of earnings order be made? New sections 128A and 128B inserted 128A Allocation of money under attachment of earnings order 128B Infringement warrant stayed if attachment of earnings order made When can an attachment of debts order be made? New sections 133A and 133B inserted 133A Allocation of money under attachment of debts order 133B Infringement warrant may be stayed if attachment of debts order made Section 134 substituted 134 Application of Part Term of imprisonment in default of payment of outstanding fines Service of documents

Division 2—Amendment of Sentencing Act 1991 58

New section 16A inserted 16A Person may consent to imprisonment in respect of unpaid fines

Division 3—Other consequential amendments 59 60 61

Amendment of EastLink Project Act 2004 Amendment of Magistrates' Court Act 1989 Repeal of section 40G of Water Efficiency Labelling and Standards Act 2005

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30 30 30 31 31 33 33 33 33 34 34 35 35 35 36 36 36 37 38 38 38 39 40 40 40 41 42 42 42 43 43 43 43

Section

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PART 7—REPEAL OF AMENDING ACT 62

Repeal of Amending Act ═══════════════

ENDNOTES

44 44 45

iv

Victoria

Justice Legislation Miscellaneous Amendments Act 2009† No. 87 of 2009 [Assented to 15 December 2009]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purposes The main purposes of this Act are— (a) to amend the Crimes Act 1958 in relation to digital evidence capture; (b) to amend the Criminal Procedure Act 2009 to replace a reference to a trial judge;

1

Justice Legislation Miscellaneous Amendments Act 2009 No. 87 of 2009 s. 2

Part 1—Preliminary

(c) to amend the Major Crime (Investigative Powers) Act 2004 and the Major Crime Legislation Amendment Act 2009 to improve the operation of provisions of those Acts; (d) to make miscellaneous amendments to the Sheriff Act 2009 to improve the operation of that Act and consequential amendments to other Acts to remove redundant references to the sheriff and the deputy sheriff; (e) to amend the Telecommunications (Interception) (State Provisions) Act 1988 to ensure consistency with the Telecommunications (Interception and Access) Act 1979 of the Commonwealth; (f) to amend the Infringements Act 2006 and other Acts to improve the operation of the infringements system. 2 Commencement (1) This Part, Part 2 (except sections 3, 4 and 5), Part 3 (except sections 8 and 10), Part 4 and Part 5 come into operation on the day after the day on which this Act receives the Royal Assent. (2) Sections 8 and 10 come into operation on a day to be proclaimed. (3) If sections 8 and 10 do not come into operation before 1 February 2010, they come into operation on that day. (4) Subject to subsection (5), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (5) If a provision referred to in subsection (4) does not come into operation before 1 November 2010, it comes into operation on that day. __________________ 2

Justice Legislation Miscellaneous Amendments Act 2009 No. 87 of 2009 Part 2—Amendments to Crimes Legislation

s. 3

PART 2—AMENDMENTS TO CRIMES LEGISLATION

3 Recording of confessions and admissions (1) In section 464H(1) of the Crimes Act 1958, for "and the recording (whether audio recording or audiovisual recording) is available to be tendered in evidence" substitute— "and, if either an audio recording or an audiovisual recording was made, that recording or, if both an audio recording and an audiovisual recording were made, the audiovisual recording is available to be tendered in evidence".

(2) For section 464H(3)(a) and (b) of the Crimes Act 1958 substitute— "(a) if either an audio recording or an audiovisual recording was made, a copy of that recording as soon as practicable but not later than 7 days after the recording was made; and (b) if both an audio recording and an audiovisual recording were made— (i) the audio recording as soon as practicable but not later than 7 days after the recording was made; and (ii) if the person is charged with an offence to which the recording relates, a copy of the audiovisual recording as soon as practicable but not later than 7 days after the person is charged; and

3

See: Act No. 6231. Reprint No. 21 as at 7 May 2009 and amending Act Nos 16/2004, 9/2008, 46/2008, 78/2008, 4/2009, 7/2009, 22/2009 and 25/2009. LawToday: www. legislation. vic.gov.au


Part 2—Amendments to Crimes Legislation

(c) if a transcript of the recording is prepared, a copy of the transcript as soon as practicable but not later than 7 days after the transcript was made.". (3) After section 464H(3) of the Crimes Act 1958 insert— "(3A) On request by a person charged with an offence or the legal practitioner representing that person, the investigating official must provide an additional copy of the audiovisual recording referred to in subsection (3).". 4 New sections 464JA to 464JD inserted After section 464J of the Crimes Act 1958 insert— "464JA Offences in relation to recordings (1) In this section— authorised person means— (a) a member of police personnel within the meaning of the Police Regulation Act 1958 (other than a protective services officer appointed under Part VIA of that Act); (b) a person or body engaged to provide services to Victoria Police in relation to the installation or maintenance of recording equipment; (c) the Director of Public Prosecutions for Victoria or a person acting under the authority of the Director;

4


(d) the Chief Crown Prosecutor or a Crown Prosecutor or Associate Crown Prosecutor appointed under the Public Prosecutions Act 1994; (e) a person employed in the Office of Public Prosecutions under the Public Prosecutions Act 1994; (f) a legal practitioner representing— (i) the State; or (ii) an informant; (g) a legal practitioner representing— (i) a suspect recorded under section 464B(5H), 464G or 464H; or (ii) a co-accused of the suspect; (h) an officer or employee of Victoria Legal Aid employed under the Legal Aid Act 1978; (i) a court or a person acting under the direction of a court; (j) a coroner within the meaning of the Coroners Act 2008 or a person acting under the direction of a coroner; (k) the Commissioner for Law Enforcement Data Security appointed under Part 2 of the Commissioner for Law Enforcement Data Security Act 2005 or a person acting under his or her direction;

5

s. 4



(l) the Chief Examiner or an Examiner appointed under Part 3 of the Major Crime (Investigative Powers) Act 2004 or a person acting under the direction of the Chief Examiner or an Examiner; (m) the Director, Police Integrity appointed under Part 2 of the Police Integrity Act 2008 or a person acting under his or her direction; (n) the Special Investigations Monitor appointed under section 5 of the Major Crime (Special Investigations Monitor) Act 2004 or a person acting under his or her direction; (o) a member of the Legislative Assembly or Legislative Council or a person acting under his or her direction; (p) a person, or person belonging to a class of persons, prescribed for the purposes of this definition; publish means— (a) insert in a newspaper or other publication; or (b) disseminate by broadcast, telecast or cinematograph; or (c) bring to the notice of the public or any member of the public by any other means, including by publication on the Internet;

6


recording means a recording made in accordance with section 464B(5H), 464G or 464H. (2) A person must not knowingly possess an audio recording or an audiovisual recording unless the person— (a) is the suspect; or (b) is a legal practitioner representing the suspect; or (c) is an authorised person acting in the performance of his or her duties; or (d) has possession of the recording in a sealed package in the course of his or her duties as a person engaged by a person referred to in paragraph (a), (b) or (c) to transport the recording to that person. Penalty: Level 8 imprisonment (1 year maximum). Note The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.

(3) A person must not play an audio recording or an audiovisual recording to another person unless— (a) the recording is played for purposes connected with the prosecution or defence of, or legal proceedings relating to, a charge to which the recording relates; or

7

s. 4



(b) the recording is played for purposes connected with an investigation of a death or a fire or an inquest held by a coroner; or (c) the recording is played for purposes connected with disciplinary action against a member of the force within the meaning of the Police Regulation Act 1958; or (d) the recording is played for purposes connected with disciplinary action against a legal practitioner; or (e) the recording is played in accordance with the direction of a court under section 464JB; or (f) the recording is played in accordance with section 464JD; or (g) the recording is played by an authorised person acting in the course of his or her duties. Penalty: Level 8 imprisonment (1 year maximum). Note The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.

(4) A person must not supply or offer to supply an audio recording or an audiovisual recording to another person other than— (a) the suspect in relation to whom the recording was made;

8


(b) a legal practitioner representing the suspect; (c) an authorised person acting in the performance of his or her duties; (d) a person engaged by a person referred to in paragraph (a), (b) or (c) to transport the recording. Penalty: Level 8 imprisonment (1 year maximum). Note The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.

(5) A person, other than an authorised person acting in the performance of his or her duties, must not copy the whole or any part of an audio recording or an audiovisual recording or permit another person to make such a copy, unless the person is acting in accordance with the direction of a court under section 464JB. Penalty: Level 8 imprisonment (1 year maximum). Note The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.

(6) An authorised person must not knowingly or recklessly tamper with, modify or erase (in whole or in part) a recording, except in accordance with the direction of a court under section 464JB. Penalty: Level 8 imprisonment (1 year maximum). 9

s. 4


Part 2—Amendments to Crimes Legislation Note The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.

(7) A person must not publish or cause to be published the whole or any part of an audio recording or an audiovisual recording except in accordance with the direction of a court under section 464JB. Penalty: Level 7 imprisonment (2 years maximum). Note The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 1200 penalty units: see section 113D of the Sentencing Act 1991.

(8) An offence against a provision of this section is a summary offence. 464JB Court may give directions in relation to a recording (1) In this section— recording has the same meaning as in section 464JA. (2) A court may give directions, with or without conditions, as to the supply, copying, editing, erasure, playing or publishing of an audio recording or an audiovisual recording. 464JC Retention of copy of recording (1) In this section— authorised person has the same meaning as in section 464JA;

10


court means— (a) if a criminal proceeding to which the recording relates has commenced but has not been completed, the court hearing the proceeding; (b) in any other case, the Magistrates' Court; recording has the same meaning as in section 464JA. (2) The Chief Commissioner of Police must keep a copy of a recording in safe custody for a period of 7 years from the making of the recording. (3) If the court is satisfied that there is good cause to keep a copy of a recording for a period longer than 7 years, the court may order that the Chief Commissioner of Police retain the copy for a further period specified in the order. (4) An application for an order under subsection (3) may be made by— (a) the suspect in relation to whom the recording was made; or (b) an authorised person acting in the performance of his or her duties. (5) The court must not make an order under subsection (3) unless— (a) the court is satisfied that the applicant has given reasonable notice of the application to the suspect and the Chief Commissioner of Police; and

11

s. 4



(b) the court has given the suspect and the Chief Commissioner of Police a reasonable opportunity to be heard. 464JD Use of recordings for training, teaching or testing purposes (1) In this section— prescribed person means— (a) a member of police personnel within the meaning of the Police Regulation Act 1958 (other than a protective services officer appointed under Part VIA of that Act); (b) a person or body engaged to provide services to Victoria Police in relation to the installation or maintenance of recording equipment; (c) a legal practitioner or a person training to become a legal practitioner; or (d) a person, or a person belonging to a class of persons, prescribed for the purposes of this section; recording has the same meaning as in section 464JA. (2) Subject to section 464JA, a recording may be played to a prescribed person for the purposes of training or teaching that person or testing the recording equipment if— (a) the suspect has been convicted or found guilty of the charge to which the recording relates; and

12


s. 5

(b) all legal proceedings in relation to the subject matter in the recording have been concluded; and (c) all reasonable measures have been taken to prevent the identification of the suspect or any other person (including an alleged victim) from the recording when it is played.". 5 New section 614 inserted At the end of Part 7 of the Crimes Act 1958 insert— "614 Transitional provision—Justice Legislation Miscellaneous Amendments Act 2009 Section 464H as amended by section 3 of the Justice Legislation Miscellaneous Amendments Act 2009 applies to an audio recording or an audiovisual recording made on or after the commencement of section 3 of that Act.". 6 Interlocutory decision In section 3 of the Criminal Procedure Act 2009, in the definition of interlocutory decision, for "trial judge" substitute "judge".

__________________

13

See: Act No. 7/2009. Statute Book: www. legislation. vic.gov.au


Part 3—Amendments to Major Crime Legislation

PART 3—AMENDMENTS TO MAJOR CRIME LEGISLATION

7 Witness already held in custody See: Act No. 79/2004. Reprint No. 2 as at 2 April 2009 and amending Act No. 3/2009. LawToday: www. legislation. vic.gov.au

After section 18(7) of the Major Crime (Investigative Powers) Act 2004 insert— "(8) If an order is made under this section, sections 12(2), 13, 16, 37(5) and 49 apply as if a reference in those sections to a witness summons issued under section 14 or 15 included a reference to an order under this section.". 8 Revocation of coercive powers orders In section 18(8) of the Major Crime (Investigative Powers) Act 2004, for "12(2)" substitute "12C". 9 Preliminary requirements (1) In section 31 of the Major Crime (Investigative Powers) Act 2004, for "Before any question is asked" substitute "Subject to subsection (2), before any question is asked". (2) At the end of section 31 of the Major Crime (Investigative Powers) Act 2004 insert— "(2) If a witness attends an examination solely to produce documents on behalf of a body corporate that is a corporation or an ADI, the Chief Examiner is only required to comply with subsection (1)(d), (e), (f) and (g) in relation to that witness.".

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Justice Legislation Miscellaneous Amendments Act 2009 No. 87 of 2009 Part 3—Amendments to Major Crime Legislation

s. 10

10 Restriction on publication of evidence In section 43(5)(b) of the Major Crime (Investigative Powers) Act 2004, after "examining the evidence" insert "and considering any submissions made under subsection (4A)". 11 Amendment of Major Crime Legislation Amendment Act 2009—Restriction on publication of evidence In section 10 of the Major Crime Legislation Amendment Act 2009, in proposed section 43(4A), for "Before a court gives a certificate under subsection (4)," substitute "When the Chief Examiner or the Chief Commissioner makes evidence available to the court in accordance with subsection (4),". __________________

15

See: Act No. 3/2009. Statute Book: www. legislation. vic.gov.au


Part 4—Amendments to Sheriff Act 2009 and Related Amendments to Other Acts

PART 4—AMENDMENTS TO SHERIFF ACT 2009 AND RELATED AMENDMENTS TO OTHER ACTS

Division 1—Amendments to the Sheriff Act 2009 12 Execution and return of warrants and other processes See: Act No. 9/2009. LawToday: www. legislation. vic.gov.au

In section 13(1) of the Sheriff Act 2009, for "all warrants and" substitute "every warrant or".

13 Requirements in relation to entry to premises to execute civil warrants (1) For section 22(4) of the Sheriff Act 2009 substitute— "(4) The sheriff may use force and assistance to enter the premises if the owner or occupier of the premises unreasonably withholds his or her consent. (4A) Despite subsection (3), the sheriff may use force and assistance to enter the premises if— (a) the sheriff, after reasonable attempts to do so, cannot contact the owner or occupier of the premises; or (b) the sheriff reasonably believes that the owner or occupier of the premises is avoiding being contacted by the sheriff.". (2) In section 22(5) of the Sheriff Act 2009, for "Division" substitute "section".

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Justice Legislation Miscellaneous Amendments Act 2009 No. 87 of 2009 Part 4—Amendments to Sheriff Act 2009 and Related Amendments to Other Acts

14 Sheriff may demand and receive payment in relation to money warrants (1) In section 27(4)(b) of the Sheriff Act 2009 omit "of" (where first occurring). (2) In section 27(9)(b) of the Sheriff Act 2009, after "that" (where first occurring) insert ", in the case of a money warrant that is a criminal warrant,". 15 New heading to Division 10 of Part 3 For the heading to Division 10 of Part 3 of the Sheriff Act 2009 substitute— "Division 10—Costs and expenses of execution of warrants". 16 New heading to section 32 For the heading to section 32 of the Sheriff Act 2009 substitute— "Sheriff may recover reasonable costs and expenses of execution". 17 All warrants in a multiple warrant situation must be executed at the same time In section 35 of the Sheriff Act 2009, after "Subject to" insert "section 13 and". 18 Execution of warrant to imprison and infringement warrant For section 38(2)(b) of the Sheriff Act 2009 substitute— "(b) must not execute the infringement warrant unless— (i) the person has been arrested under the warrant to imprison; or

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(ii) the person is in a police gaol in the legal custody of the Chief Commissioner of Police or in a prison in the legal custody of the Secretary.". 19 Execution of warrant to imprison and warrant to arrest For section 39(2)(b) of the Sheriff Act 2009 substitute— "(b) must not execute the warrant to arrest— (i) unless a seven day demand relating to the warrant to arrest is served on the person before the warrant to imprison has been received by the sheriff and— (A) the period under that seven day demand has expired and no liability discharge event has occurred before the warrant to imprison is executed; or (B) the operation of the period under that seven day demand has been waived by the person; or (ii) unless the person is released from the legal custody of the Chief Commissioner of Police or the Secretary (as the case requires) and— (A) the period under a seven day demand relating to the warrant to arrest and served on the person has expired and no liability discharge event has occurred; or (B) the operation of the period under that seven day demand has been waived by the person.".

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20 Execution of warrant to imprison, warrant to arrest and infringement warrant (1) For section 40(2)(b) of the Sheriff Act 2009 substitute— "(b) must not execute the infringement warrant unless— (i) the person has been arrested under the warrant to imprison; or (ii) the person is in a police gaol in the legal custody of the Chief Commissioner of Police or in a prison in the legal custody of the Secretary; and". (2) For section 40(2)(c) of the Sheriff Act 2009 substitute— "(c) must not execute the warrant to arrest— (i) unless a seven day demand relating to the warrant to arrest is served on the person before the warrant to imprison has been received by the sheriff and— (A) the period under that seven day demand has expired and no liability discharge event has occurred before the warrant to imprison is executed; or (B) the operation of the period under that seven day demand has been waived by the person; or (ii) unless the person is released from the legal custody of the Chief Commissioner of Police or the Secretary (as the case requires) and—

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(A) the period under a seven day demand relating to the warrant to arrest and served on the person has expired and no liability discharge event has occurred; or (B) the operation of the period under that seven day demand has been waived by the person.". 21 Offence to resist sheriff, deputy sheriff or sheriff's officer (1) For the heading to section 47 of the Sheriff Act 2009 substitute— "Offence to resist sheriff, deputy sheriff, sheriff's officer or justice employee". (2) In section 47 of the Sheriff Act 2009, for "or a sheriff's officer" substitute ", a sheriff's officer or an appropriately trained justice employee". 22 Offence to assault sheriff, deputy sheriff or sheriff's officer (1) For the heading to section 48 of the Sheriff Act 2009 substitute— "Offence to assault sheriff, deputy sheriff, sheriff's officer or justice employee". (2) In section 48(1)(c) of the Sheriff Act 2009, for "power." substitute "power; or". (3) After section 48(1)(c) of the Sheriff Act 2009 insert— "(d) an appropriately trained justice employee while the appropriately trained justice employee is performing or exercising a delegated enforcement function or power.".

20


23 Offence to escape from lawful custody of sheriff, deputy sheriff or sheriff's officer (1) For the heading to section 49 of the Sheriff Act 2009 substitute— "Offence to escape from lawful custody of sheriff, deputy sheriff, sheriff's officer or justice employee". (2) In section 49 of the Sheriff Act 2009, for "or a sheriff's officer" substitute ", a sheriff's officer or an appropriately trained justice employee". 24 Offence to rescue or attempt to rescue goods In section 50(1) of the Sheriff Act 2009, for "or a sheriff's officer" substitute ", a sheriff's officer or an appropriately trained justice employee". 25 Offence to impersonate sheriff, deputy sheriff or sheriff's officer (1) For the heading to section 51 of the Sheriff Act 2009 substitute— "Offence to impersonate sheriff, deputy sheriff, sheriff's officer or justice employee". (2) In section 51 of the Sheriff Act 2009, for "or a sheriff's officer" substitute ", a sheriff's officer or an appropriately trained justice employee".

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Division 2—Amendments to other Acts 26 Commonwealth Games Arrangements Act 2001— proceedings where refusal to give up possession See: Act No. 57/2001. Reprint No. 2 as at 1 March 2006 and amending Act Nos 29/2006 and 80/2006. LawToday: www. legislation. vic.gov.au

Section 39(8) of the Commonwealth Games Arrangements Act 2001 is repealed.

27 EastLink Project Act 2004—proceedings where refusal to give up possession See: Act No. 39/2004. Reprint No. 2 as at 31 July 2009 and amending Act No. 6/2009. LawToday: www. legislation. vic.gov.au

Section 76(8) of the EastLink Project Act 2004 is repealed.

28 EastLink Project Act 2004—proceedings where refusal to give up possession Section 117(7) of the EastLink Project Act 2004 is repealed.

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s. 29

29 Land Acquisition and Compensation Act 1986— proceedings where refusal to deliver possession Section 28(8) of the Land Acquisition and Compensation Act 1986 is repealed.

See: Act No. 121/1986. Reprint No. 4 as at 7 May 2009 and amending Act No. 78/2008. LawToday: www. legislation. vic.gov.au

30 Project Development and Construction Management Act 1994—proceedings where refusal to give up possession Section 20G(8) of the Project Development and Construction Management Act 1994 is repealed.

23

See: Act No. 101/1994. Reprint No. 4 as at 10 September 2009. LawToday: www. legislation. vic.gov.au



31 Road Management Act 2004—proceedings where refusal to give up possession See: Act No. 12/2004. Reprint No. 2 as at 11 October 2006 and amending Act Nos 61/2005, 74/2006, 85/2006, 69/2007, 74/2007, 13/2009, 17/2009 and 28/2009. LawToday: www. legislation. vic.gov.au

Clause 45(8) of Schedule 5A to the Road Management Act 2004 is repealed.

__________________

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Justice Legislation Miscellaneous Amendments Act 2009 No. 87 of 2009 Part 5—Amendments to Telecommunications (Interception) (State Provisions) Act 1988

s. 32

PART 5—AMENDMENTS TO TELECOMMUNICATIONS (INTERCEPTION) (STATE PROVISIONS) ACT 1988

32 Purpose of Principal Act In section 1 of the Telecommunications (Interception) (State Provisions) Act 1988, for "Telecommunications (Interception) Act 1979 of the Commonwealth" substitute "Telecommunications (Interception and Access) Act 1979 of the Commonwealth". 33 Definitions (1) In section 3(1) of the Telecommunications (Interception) (State Provisions) Act 1988, the definition of Minister is repealed. (2) In section 3(1) of the Telecommunications (Interception) (State Provisions) Act 1988, for the definition of Part VI warrant substitute— "Part 2–5 warrant means a warrant issued or to be issued under Part 2–5 of the Commonwealth Act;". (3) In section 3(1) of the Telecommunications (Interception) (State Provisions) Act 1988, in the definition of restricted record, for "a record obtained" substitute "a record other than a copy, that was obtained". (4) In section 3(1) of the Telecommunications (Interception) (State Provisions) Act 1988, for the definition of the Commonwealth Act substitute— "the Commonwealth Act means the Telecommunications (Interception and Access) Act 1979 of the Commonwealth;".

25

See: Act No. 46/1988. Reprint No. 2 as at 7 May 2009. LawToday: www. legislation. vic.gov.au


Part 5—Amendments to Telecommunications (Interception) (State Provisions) Act 1988

(5) In section 3(1) of the Telecommunications (Interception) (State Provisions) Act 1988, for the definition of warrant substitute— "warrant means a warrant issued under Part 2–5 of the Commonwealth Act.". (6) In section 3(1) of the Telecommunications (Interception) (State Provisions) Act 1988 insert the following definitions— "Police Integrity Minister means the Minister administering the Police Integrity Act 2008; Police Minister means the Minister administering the Police Regulation Act 1958;". (7) In the Telecommunications (Interception) (State Provisions) Act 1988— (a) in sections 7(1) and 12 for "Minister" (wherever occurring) substitute "Police Minister"; (b) in section 7(1)(c)(i) for "Minister's" substitute "Police Minister's"; (c) insert the following heading to section 8— "Documents to be given by State Police Minister to Commonwealth Minister"; (d) in section 8 for "The Minister" substitute "The Police Minister"; (e) In section 8 for "the Minister," substitute "the Police Minister,"; (f) in the heading to section 9C for "Minister" substitute "Police Integrity Minister"; (g) in sections 9C(1) and 15 for "Minister" (wherever occurring) substitute "Police Integrity Minister", (h) in section 9C(1)(c)(i) for "Minister's" substitute "Police Integrity Minister's"; 26


(i) in the heading to section 9D for "State Minister" substitute "State Police Integrity Minister"; (j) in section 9D for "The Minister" substitute "The Police Integrity Minister"; (k) in section 9D for "the Minister," substitute "the Police Integrity Minister,"; (l) for section 10(c) substitute— "(c) report to the Police Minister about the results of the inspections referred to in paragraph (a) and the Police Integrity Minister about the results of the inspections referred to in paragraph (b); and"; (m) in section 20C for "Minister" substitute "Police Minister or Police Integrity Minister"; (n) in section 21 for "The Minister must" substitute "The Police Minister or the Police Integrity Minister (as the case requires) must". 34 Documents connected with issue of warrants to be kept (1) For section 5(a), (b) and (c) of the Telecommunications (Interception) (State Provisions) Act 1988 substitute— "(a) each warrant issued to the Police Force; and (b) a copy of each notification by the Chief Commissioner of Police under section 59A of the Commonwealth Act; and (c) each instrument revoking a warrant issued to the Police Force; and".

27

s. 34


Part 5—Amendments to Telecommunications (Interception) (State Provisions) Act 1988

(2) In section 5(f) of the Telecommunications (Interception) (State Provisions) Act 1988, for "Part VI warrant" substitute "Part 2–5 warrant". 35 Other records to be kept in connection with interceptions (1) In section 6 of the Telecommunications (Interception) (State Provisions) Act 1988, for "Part VI warrant" (wherever occurring) substitute "Part 2–5 warrant". (2) In section 6 of the Telecommunications (Interception) (State Provisions) Act 1988, for "lawfully obtained information" (wherever occurring) substitute "lawfully intercepted information". 36 Documents to be given to the Police Minister (1) In section 7(1)(c) of the Telecommunications (Interception) (State Provisions) Act 1988, for "2 months" substitute "3 months". (2) In section 7(1)(c)(i) of the Telecommunications (Interception) (State Provisions) Act 1988, for "Part IX" substitute "Part 2–8". 37 Documents connected with issue of warrants to be kept (1) For section 9A(a), (b) and (c) of the Telecommunications (Interception) (State Provisions) Act 1988 substitute— "(a) each warrant issued to the Office of Police Integrity; and (b) a copy of each notification by the Director under section 59A of the Commonwealth Act; and (c) each instrument revoking a warrant issued to the Office of Police Integrity; and".

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(2) In section 9A(f) of the Telecommunications (Interception) (State Provisions) Act 1988, for "Part VI warrant" substitute "Part 2–5 warrant". 38 Other records to be kept in connection with interceptions (1) In section 9B of the Telecommunications (Interception) (State Provisions) Act 1988, for "Part VI warrant" (wherever occurring) substitute "Part 2–5 warrant". (2) In section 9B of the Telecommunications (Interception) (State Provisions) Act 1988, for "lawfully obtained information" (wherever occurring) substitute "lawfully intercepted information". 39 Documents to be given to the Police Integrity Minister (1) In section 9C(1)(c) of the Telecommunications (Interception) (State Provisions) Act 1988, for "2 months" substitute "3 months". (2) In section 9C(1)(c)(i) of the Telecommunications (Interception) (State Provisions) Act 1988, for "Part IX" substitute "Part 2–8". __________________

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Part 6—Amendment to Infringements Act 2006 and Related Amendments to Other Acts

PART 6—AMENDMENT TO INFRINGEMENTS ACT 2006 AND RELATED AMENDMENTS TO OTHER ACTS

Division 1—Amendment of Infringements Act 2006 40 Cancellation of certain infringement notices See: Act No. 12/2006. Reprint No. 2 as at 1 July 2008 and amending Act No. 30/2007. LawToday: www. legislation. vic.gov.au

In section 36 of the Infringements Act 2006— (a) in paragraph (d), for "1988." substitute "1988;"; (b) after paragraph (d), insert— "(e) section 219A of the EastLink Project Act 2004.".

41 Applications for revocation of enforcement orders After section 65(3) of the Infringements Act 2006 insert— "(4) If a person makes more than 2 applications under subsection (1) in respect of the same enforcement order, the person must obtain the leave of the Court before filing any third or subsequent application under subsection (3).". 42 Powers to revoke enforcement orders Section 66(6) of the Infringements Act 2006 is repealed.

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Justice Legislation Miscellaneous Amendments Act 2009 No. 87 of 2009 Part 6—Amendment to Infringements Act 2006 and Related Amendments to Other Acts

43 Applying for payment order After section 76(1) of the Infringements Act 2006 insert— "(1A) A person making an application for a payment order under subsection (1) may also apply to an infringements registrar for variation of— (a) the prescribed costs; or (b) the prescribed fees on any infringement warrant.". 44 Infringements registrar may make payment order (1) In section 77(1) of the Infringements Act 2006 after "payment order" insert "and any application made for variation of the prescribed costs or variation of the prescribed fees on any infringement warrant". (2) After section 77(1)(c) of the Infringements Act 2006 insert— "(ca) make an order varying the prescribed costs or varying the prescribed fees on any infringement warrant payable under the fine and adjust the total of the fine accordingly;". (3) At the foot of section 77(5) of the Infringements Act 2006 insert— "Note See also an infringements registrar's power to stay an infringement warrant under section 94A.".

(4) In section 77(6) of the Infringements Act 2006— (a) after "payment order" (where first occurring) insert "or an application for the variation of prescribed costs or prescribed fees on any infringement warrant";

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(b) in paragraph (a) after "payment order" insert "or the order varying the prescribed costs or prescribed fees". (5) After section 77(6) of the Infringements Act 2006 insert— "(7) If an infringements registrar has made a payment order and an infringement warrant has been issued in respect of the enforcement order to which the payment order relates before the payment order was made, the infringements registrar may stay the infringement warrant under section 94A. (8) If an infringements registrar makes an order under section 94A staying an infringement warrant and the fine to which the payment order relates is subsequently paid in full, the stay on the infringement warrant ceases and the warrant expires. (9) If an infringements registrar makes an order under section 94A staying an infringement warrant and the person defaults before full payment of the fine to which the payment order relates has been paid— (a) if the default occurs before the end of 5 years after the infringement warrant was first issued, the infringement warrant remains enforceable until it becomes null and void under section 94; or (b) if the default occurs more than 5 years after the infringement warrant was first issued, the infringement warrant is null and void.".

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45 Consequences of default under a payment order In section 78(1) of the Infringements Act 2006, for "If an" substitute "Subject to section 94A, if an". 46 New section 81A inserted After section 81 of the Infringements Act 2006 insert— "81A Recall and cancellation of infringement warrant (1) An infringement warrant issued by an infringements registrar may be recalled and cancelled by— (a) that infringements registrar; or (b) another registrar from the same venue of the Court at which the infringement warrant was issued; or (c) a magistrate. (2) If an infringement warrant has been recalled and cancelled under subsection (1), a fresh infringement warrant may be issued for the same purpose as that for which the recalled infringement warrant was issued.". 47 Warrant void after 5 years In section 94 of the Infringements Act 2006, for "An infringement" substitute "Subject to section 94A, an infringement".

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48 New sections 94A and 94B inserted After section 94 of the Infringements Act 2006 insert— "94A Infringements registrar may stay infringement warrant (1) An infringements registrar may stay an infringement warrant issued in respect of an enforcement order in the following circumstances— (a) if a payment order has been made in respect of the enforcement order; (b) if an attachment of earnings order has been made; (c) if an attachment of debts order has been made. (2) An infringement warrant stayed under subsection (1) remains issued and enforceable until the stay ceases and, in accordance with section 94, on cessation of the stay— (a) if a period of 5 years after the infringement warrant was first issued has passed—the infringement warrant is null and void; or (b) if a period of 5 years after the infringement warrant was first issued has not passed—the infringement warrant remains enforceable. (3) An infringement warrant issued by an infringements registrar may be stayed under this section by— (a) that infringements registrar; or

34


(b) another registrar from the same venue of the Court at which the infringement warrant was issued; or (c) a magistrate. 94B Fresh infringement warrant following expiry With the leave of the Court— (a) a fresh infringement warrant may be issued for the same purpose as that for which an infringement warrant that has become null and void under section 94 was issued; and (b) the fine in respect of which the infringement warrant that is null and void because it has not been executed within 5 years after it was issued becomes enforceable or recoverable as if there had been no expiry.". 49 Direction not to renew driver licence or motor vehicle registration In section 114(5) of the Infringements Act 2006— (a) for "a person in default in respect of" substitute "subject to"; (b) after "warrants" (where first occurring) insert ", whether or not the person has been served with a seven-day notice in respect of any of those warrants". 50 Division 1 of Part 10 repealed Division 1 of Part 10 of the Infringements Act 2006 is repealed.

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51 When can an attachment of earnings order be made? After section 123(1) of the Infringements Act 2006 insert— "(1A) An infringements registrar must not make an attachment of earnings order unless satisfied that, in respect of one or more infringement warrants issued against a person, the person owes a total amount outstanding which is not less than the prescribed amount.". 52 New sections 128A and 128B inserted After section 128 of the Infringements Act 2006 insert— "128A Allocation of money under attachment of earnings order (1) An infringements registrar must allocate money received under an attachment of earnings order in order of priority based on the date of issue of an infringement warrant with the amount outstanding under the oldest infringement warrant being paid out first. (2) The order of priority to be applied when payments under an attachment of earnings order are allocated applies— (a) to all attachment of earnings orders managed by an infringements registrar; and (b) regardless of the origin of the infringement notices to which the attachment of earnings order applies. (3) If a person to whom an attachment of earnings order is directed overpays the amount to which the attachment of earnings order applies by continuing payments after

36


the attachment of earnings order is satisfied, an infringements registrar may— (a) refund the amount of the overpayment to the person in respect of whom the attachment of earnings order was made and— (i) the Consolidated Fund is hereby appropriated accordingly; or (ii) if the amount had been paid into another fund or account, the amount is to be refunded from that fund or account; or (b) if the person in respect of whom the attachment of earnings order was made has other outstanding enforcement orders that were not subject to the attachment of earnings order, apply the amount of the overpayment to those outstanding enforcement orders if the person consents to the amount being so applied. 128B Infringement warrant stayed if attachment of earnings order made (1) If an infringements registrar makes an attachment of earnings order, an infringement warrant that has been issued against the person in respect of whom the attachment of earnings order is made may be stayed by the infringements registrar in accordance with section 94A. (2) A stay on an infringement warrant referred to in subsection (1) ceases on the discharge of the attachment of earnings order.".

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53 When can an attachment of debts order be made? After section 129(1) of the Infringements Act 2006 insert— "(1A) An infringements registrar must not make an attachment of debts order unless satisfied that, in respect of one or more infringement warrants issued against a person, the person owes a total amount outstanding which is not less than the prescribed amount.". 54 New sections 133A and 133B inserted After section 133 of the Infringements Act 2006 insert— "133A Allocation of money under attachment of debts order (1) An infringements registrar must allocate money received under an attachment of debts order in order of priority based on the date of issue of an infringement warrant with the amount outstanding under the oldest infringement warrant being paid out first. (2) The order of priority to be applied when payments under an attachment of debts order are allocated applies— (a) to all attachment of debts orders managed by an infringements registrar; and (b) regardless of the origin of the infringement notices to which the attachment of debts order applies. (3) If a person to whom an attachment of debts order is directed overpays the amount to which the attachment of debts order applies by continuing payments after the attachment of debts order is satisfied, an infringements registrar may— 38


(a) refund the amount of the overpayment to the person in respect of whom the attachment of debts order was made and— (i) the Consolidated Fund is hereby appropriated accordingly; or (ii) if the amount had been paid into another fund or account, the amount is to be refunded from that fund or account; or (b) if the person in respect of whom the attachment of debts order was made has other outstanding enforcement orders that were not subject to the attachment of debts order, apply the amount of the overpayment to those outstanding enforcement orders if the person consents to the amount being so applied. 133B Infringement warrant may be stayed if attachment of debts order made (1) If an infringements registrar makes an attachment of debts order, an infringement warrant that has been issued against the person in respect of whom the attachment of debts order is made may be stayed by an infringements registrar in accordance with section 94A. (2) A stay on an infringement warrant referred to in subsection (1) ceases on the discharge of the attachment of debts order.".

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55 Section 134 substituted For section 134 of the Infringements Act 2006 substitute— "134 Application of Part This Part applies if enforcement action pursuant to an infringement warrant or under Part 8— (a) has been unsuccessful or unsatisfactory; or (b) is not possible; or (c) is not appropriate.". 56 Term of imprisonment in default of payment of outstanding fines (1) For section 161A(1) of the Infringements Act 2006 substitute— "(1) A person who has one or more infringement warrants issued against him or her and who is in custody may request, in writing, the sheriff to apply to the court for an order for that person to serve a period of imprisonment in default of payment of the outstanding fines under any one or more infringement warrants. (1A) On application under subsection (1), the Court may order that the person be imprisoned for a period of one day in respect of each penalty unit, or part of a penalty unit, of the amount of the penalty units to which the outstanding fines under the infringement warrant or warrants is an equivalent amount.

40


(1B) If the Court makes an order under subsection (1A), the Court may count the time served by the person from the date the person requested the sheriff to make an application under subsection (1) as time already served for the purposes of the term of imprisonment imposed under subsection (1A).". (2) In sections 161(2), (3) and (4), of the Infringements Act 2006, for "(1)" (wherever occurring) substitute "(1A)". 57 Service of documents (1) In section 162(1) of the Infringements Act 2006, after paragraph (b) insert— "(ba) by registered post; or". (2) For section 162(2)(c) of the Infringements Act 2006 substitute— "(c) subject to subsection (2A), an attachment of earnings order; or (ca) an attachment of debts order; or". (3) After section 162(2) of the Infringements Act 2006 insert— "(2A) An attachment of earnings order must be served on the person to whom the order is directed— (a) personally; or (b) by registered post.".

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Division 2—Amendment of Sentencing Act 1991 58 New section 16A inserted See: Act No. 49/1991. Reprint No. 11 as at 15 January 2009 and amending Act Nos 46/2008, 7/2009 and 22/2009. LawToday: www. legislation. vic.gov.au

After section 16 of the Sentencing Act 1991 insert— "16A Person may consent to imprisonment in respect of unpaid fines (1) A person who has one or more warrants issued against him or her under section 62 and who is already in custody serving an uncompleted sentence of imprisonment may request, in writing, the sheriff to apply to the court for an order for that person to serve a period of imprisonment in default of payment of the outstanding fine or any instalment under an instalment order under any one or more warrants. (2) The Court may order that the person be imprisoned in accordance with section 16(2) for a term calculated in accordance with section 63. (3) If the Court makes an order under subsection (2), the Court may count the time served by the person from the date the person requested the sheriff to make an application under subsection (1) as time already served for the purposes of the term of imprisonment imposed on the person under subsection (2). (4) A court may make an order under subsection (2) whether or not the person is brought before the court.".

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Division 3—Other consequential amendments 59 Amendment of EastLink Project Act 2004 In section 219A(6)(c) of the EastLink Project Act 2004, after "2006" insert ", or if the person is a child, elects to have the matter heard and determined in the Children's Court". 60 Amendment of Magistrates' Court Act 1989 (1) In section 3(1) of the Magistrates' Court Act 1989, in the definition of process, for "penalty enforcement warrant," substitute "infringement warrant,". (2) In section 38(1)(d) of the Magistrates' Court Act 1989, for "section 158" substitute "section 156". (3) In section 60 of the Magistrates' Court Act 1989, for "a penalty enforcement warrant" (wherever occurring) substitute "an infringement warrant".

61 Repeal of section 40G of Water Efficiency Labelling and Standards Act 2005 Section 40G of the Water Efficiency Labelling and Standards Act 2005 is repealed.

__________________

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See: Act No. 51/1989. Reprint No. 14 as at 21 August 2008 and amending Act Nos 51/2006, 12/2008, 34/2008, 38/2008, 52/2008, 68/2008, 72/2008, 74/2008, 76/2008, 78/2008, 83/2008, 4/2009, 7/2009, 9/2009, 13/2009, 25/2009, 30/2009 and 50/2009. LawToday: www. legislation. vic.gov.au See: Act No. 5/2005 and amending Act No. 32/2006. LawToday: www. legislation. vic.gov.au

Justice Legislation Miscellaneous Amendments Act 2009 No. 87 of 2009 Part 7—Repeal of Amending Act

s. 62

PART 7—REPEAL OF AMENDING ACT

62 Repeal of Amending Act This Act is repealed on 1 November 2011. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Justice Legislation Miscellaneous Amendments Act 2009 No. 87 of 2009 Endnotes

ENDNOTES †

Minister's second reading speech— Legislative Assembly: 15 October 2009 Legislative Council: 12 November 2009 The long title for the Bill for this Act was "A Bill for an Act to amend the Crimes Act 1958, the Criminal Procedure Act 2009, the Infringements Act 2006, the Major Crime (Investigative Powers) Act 2004, the Major Crime Legislation Amendment Act 2009, the Sheriff Act 2009, the Telecommunications (Interception) (State Provisions) Act 1988 and other Acts and for other purposes."

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