Alert Digest No. 1 of 2002
Tuesday, 26 February 2002

Purpose

The Bill amends the Crimes Act 1958 ("the Act") to facilitate Victoria's participation in the national DNA database system and to amend procedures for the obtaining, use and retention of forensic samples.

Main features of the provisions in the Bill include –

• Consensual supervised self-administration of sampling whereas the current provisions only permit mouth swabs to be taken by a doctor or a nurse.

• Expands upon the range of offences for which a forensic sample can be obtained.

• Under the existing legislation only the Magistrates Court can issue an order for a DNA sample to be retained. The Bill allows the court of hearing (including the County and Supreme courts) to make a retention order.

• Introduces new procedures which will enable police to obtain a forensic sample from an offender who is not in custody where the court has ordered the taking of that sample.

• Provides that, where a person has been ordered to provide a forensic sample, a member of the police force may issue a notice requesting that person to attend at a nominated police station within a specified period of time to provide the forensic sample. If the person fails to comply, a member of the police force may apply for a warrant to arrest that person.

• Provides that, if a court orders a forensic sample to be taken from an offender who is not in prison, the court must also order the offender to attend at a police station, or other specified place within a specified period, to allow the forensic procedure to be carried out. If the person fails to comply, a member of the police force may apply for an arrest warrant.

• Facilitates Victoria’s participation in a national DNA database by enabling Victoria to enter into arrangements for the exchange of DNA information between Australian jurisdictions.

The Committee notes the comments in the Second Reading Speech –

The DNA database provisions in this Bill are based on the February 2000 draft model forensic procedures bill developed by the model criminal code officers committee under the auspices of the Standing Committee of Attorneys-General. The model Bill was developed during 1999 following months of national consultation, including meetings with the Federal and New South Wales privacy commissioners, Crimtrac and law enforcement agencies.

The Bill outlines key procedures in relation to how forensic material is to be stored on the database, who may have access to the database and when the information from the database may be disclosed. The Bill contains safeguards to ensure that DNA information can only be disclosed and used for certain purposes such as a criminal investigation, use in a coronial inquest or inquiry, and use as evidence in criminal proceedings.

The Bill provides an effective and accountable system for the retention and matching of forensic materials on the national DNA database. The privacy of Victorian citizens is also guarded against, because each step in dealing with forensic material is regulated and reinforced by various criminal offences which carry penalties for misuse of the database and DNA information.

[2]. The provisions in the Bill (except clause 18(2)) comes into operation on the day after Royal Assent. Clause 18(2) is deemed to have come into operation on the commencement of section 16(1)(c) of the Drugs, Poisons and Controlled Substances (Amendment) Act 2001.

[5]. Inserts new definitions in the Act. The new definitions are based on the February 2000 Model Forensic Procedures Bill ("the Model Bill") developed by the Model Criminal Code Officers' Committee under the auspices of the Standing Committee of Attorneys-General. The new definitions explain key concepts and terms relating to the national DNA database system, including definitions of the indexes which are to comprise the database.

[6]. Inserts a new 464S(1)(ea) dealing with informed consent by a suspect to be subject to a forensic procedure and provides that a suspect, before giving his or her informed consent, must be informed by a member of the police force that information obtained from analysis of forensic material will be placed on a DNA database and may be used for the purpose of a criminal investigation or any other purpose for which the DNA database may be used.

[7]. Inserts 464Z(3A) to provide that where an intimate sample is to be taken from a person, there is nothing to prevent that person (if they so consent and subject also to the police considering it appropriate) from taking their own sample of a scraping of the mouth, subject to the supervision of an authorised police officer.

[8]. Amends sections 464ZA(4) and (5) to provide that where a person takes their own mouth scraping, there is no requirement to video-record the taking of such a sample or require that the taking of the sample be witnessed by an independent medical practitioner, nurse or independent person.

[10]. Inserts a new sub-section 464ZF(2A) allowing a court to direct a person found guilty of a forensic sample offence (defined in Schedule 8 of the Act) who is not in custody to undergo a forensic procedure at a specified place before a specified time.

[11]. Inserts 464ZFAA concerning notices to attend for a forensic procedure which may be served personally, by leaving it with a person over 16 years of age at the last know home or business address of the person or by post to such an address.

[12]. Amends 464ZFA concerning the issue of warrants for failure to attend such a procedure.

[13]. Amends 464ZFB to provide that a retention order may be made by the court of hearing and not, as is currently the case, only by the Magistrates’ Court.

[15]. Amends the informed consent provisions in section 464ZGB(3)(b) (where samples are given voluntarily) to provide that a volunteer must be informed that DNA information obtained may be used for the purpose of a criminal investigation or any other purpose for which the DNA database may be used. A volunteer must be informed that they have a choice as to whether DNA information obtained from analysis of their sample is used for a limited purpose (eg. the missing persons index) or for any purpose for which the DNA database may be used.

Further, a volunteer must be informed that information obtained from the analysis could produce evidence to be used in a court.

[16]. Inserts new sections 464ZGG to 464ZGO.

464ZGG creates offences in relation to unauthorised analysis of forensic material and to prevent the inclusion of certain DNA material on the database.

464ZGH makes unauthorised access to the DNA database an offence and sets out the list of authorised access purposes.

464ZGI(1) sets out the permissible matching of DNA profiles. It is an offence for a person to intentionally or recklessly cause the matching of a DNA profile with a DNA profile on an index other than in accordance with 464ZG(1).

464ZGJ(2) provides that it is an offence for a person to intentionally or recklessly cause any identifying information to be recorded or retained in a DNA database system after it is required to be destroyed.

464ZGJ(3) provides that it is an offence for any identifying information relating to a DNA profile on the volunteers index to be retained for more than a period of 12 months (unless the volunteer agrees to it being kept for a longer period.).

464ZGJ(4) provides that it is an offence if a responsible person does not ensure that identifying information relating to a DNA profile on the serious offenders index is removed as soon as practicable after becoming aware that the offender has been pardoned or acquitted or the conviction has been quashed.

464ZGK(1) provides that it is an offence to intentionally or recklessly disclose any information stored on the DNA database system; or any other information revealed by the carrying out of a forensic procedure other than for the permissible purposes.

464ZGL and 464ZGM enable orders for the carrying out of forensic procedures that were made in one jurisdiction to be registered and enforced in another jurisdiction where a person who is subject to such an order moves between jurisdictions.

464ZGN provides that Victoria can enter into arrangements with other Australian jurisdictions under which information from a DNA database may be transmitted elsewhere in Australia.

464ZGO provides that forensic material can be taken, retained and used in Victoria provided its taking, retention or use is authorised by the law of another Australian jurisdiction. It permits forensic material or information that has been taken in accordance with a corresponding law of another Australian jurisdiction to be used as evidence in Victoria even if its use would contravene the relevant Victorian provisions relating to the carrying out of forensic procedures.

[18(2)]. Contains statute law revision amendments by inserting the name of the Act, namely the Drugs, Poisons and Controlled Substances Act 1981, in the references to offences in items 22 to 28 of Schedule 8 to the Principal Act. Section 16(1)(c) of the Drugs, Poisons and Controlled Substances (Amendment) Act 2001 inserted these items but omitted reference to the Act name.

[19]. Contains transitional provisions.

The Committee makes no further comment.

The Bill amends the Crimes Act 1958 ("the Act") by –

• creating new criminal offences of corporate manslaughter and negligently causing serious injury by a body corporate in certain circumstances; and

• imposing criminal liability on senior officers of a body corporate in certain circumstances; and

• increasing penalties in health and safety legislation; and

• making other miscellaneous amendments to health and safety legislation.

[2]. The provisions in the Bill come into operation on the day after Royal Assent.

Current Crimes Act 1958 provision for comparative purposes.

5. Punishment for manslaughter

Whosoever is convicted of manslaughter shall be liable to level 3 imprisonment (20 years maximum) or to a fine in addition to or without any such other punishment as aforesaid.

22. Conduct endangering life

A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of death is guilty of an indictable offence.

Penalty: Level 5 imprisonment (10 years maximum).

23. Conduct endangering persons

A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of serious injury is guilty of an indictable offence.

Penalty: Level 6 imprisonment (5 years maximum).

24. Negligently causing serious injury

A person who by negligently doing or omitting to do an act causes serious injury to another person is guilty of an indictable offence.

Penalty: Level 6 imprisonment (5 years maximum).

[3]. Inserts new Subdivision (3) into Division 1 of Part 1 of the Act (new sections 11-14F).

A body corporate that by negligence kills –

* an employee in the course of his or her employment by the body corporate; or

* a worker in the course of providing services to, or relating to, the body corporate--

is guilty of the indictable offence of corporate manslaughter.

A body corporate is liable on conviction to a fine not exceeding 50,000 penalty units ($5,000,000).

Negligently causing serious injury

A body corporate that by negligence causes serious injury to –

* an employee in the course of his or her employment by the body corporate; or

* a worker in the course providing services to, or relating to, the body corporate--

is guilty of an indictable offence.

A body corporate that is guilty of the offence is liable to a fine not exceeding 20,000 penalty units ($2,000,000).

14A. Identifies certain conduct of a body corporate that can be considered by a court for the new offences.

The conduct of an employee or a senior officer of an agent acting within the actual scope of their employment or within their actual authority must be attributed to that agent.

The conduct of an employee, agent or senior officer of a body corporate acting within the actual scope of their employment or within their actual authority must be attributed to that body corporate.

Definition of negligence

New section 14C creates an offence for senior officers of a body corporate if it is proved that the body corporate has committed an offence against section 13 (corporate manslaughter) or against section 14 (serious injury). There are also additional elements that must be proved before a senior officer can be found guilty.

The additional elements are that the senior officer –

• was organisationally responsible for the conduct, or part of the conduct, of the body corporate in relation to the offence by the body corporate; and

• in performing or failing to perform his or her organisational responsibilities, materially contributed to the offence by the body corporate; and

• knew that, as a consequence of his or her conduct, there was a substantial risk that the body corporate would engage in conduct that involved a high risk of death or really serious injury to a person.

It must be further proved that having regard to the circumstances known to the senior officer, it was unjustifiable to allow that substantial risk to exist.

As the offence involves derivative, rather than direct, liability, it is unnecessary for the senior officer to personally owe a duty of care to the person killed. However, the body corporate must owe a duty of care to that person before the senior officer can be liable for this offence.

New section 14C(3) identifies at least three factors that may be considered amongst others, a court may consider in determining whether a senior officer has been organisationally responsible.

Where it is proved that the corporation has committed an offence under new section 13 (corporate manslaughter): Level 6 imprisonment (5 years maximum) or a level 4 fine (1800 penalty units ($180,000) or both.

Where it is proved that the corporation has committed an offence under new section 14 (serious injury): Level 7 imprisonment (2 years maximum) or a level 5 fine (1200 penalty units ($120,000) or both.

Offenders may be ordered to take specified actions 14D creates new sentencing orders on a body corporate fund guilty of offences under these new offences including publicising the offence and penalty specifically or generally.

14E. Clarifies that nothing in the Subdivision prevents a body corporate being prosecuted for manslaughter or any other offence. The new offences of corporate manslaughter and negligently causing serious injury by a body corporate only apply when the victim is a worker who is killed or seriously injured in the course of their employment. The existing offences of manslaughter under the common law or negligently causing serious injury under section 24 of the Crimes Act 1958 are therefore available for other victims.

Where the new offences apply, prosecutions will also be available under existing offences. However, a body corporate could not be punished under both the new offences and existing offences. Under section 51 of the Interpretation of Legislation Act 1984, a person (including a body corporate) cannot be punished more than once for the same conduct.

14F. Provides that it is immaterial that some of the conduct constituting an offence against the Subdivision occurred outside Victoria, so long as the death or serious injury occurred in Victoria. For example, decisions made by senior officers in another State about safety issues may be relevant conduct of the body corporate in determining negligence.

[4]. Amends section 325 to provide maximum penalties for the offence of being an accessory to the new offences (An accessory is a person who impedes the apprehension, prosecution, conviction or punishment of the principal offender). An accessory to an offence of corporate manslaughter will be liable to a maximum penalty of 5 years imprisonment. An accessory to an offence of negligently causing serious injury by a body corporate will be liable to a maximum penalty of 2 years imprisonment.

[5]. Inserts a new section 595 providing that the new offences in sections 13 and 14 only apply to deaths and serious injuries where the allegedly negligent conduct occurs on or after the commencement of the amending Act and also clarifies that the new offences do not apply to deaths or serious injuries where the allegedly negligent conduct occurred before the commencement of this amending Act even if the death or serious injury occurred on or after that commencement.

[6]. Amends section 20(3) of the Dangerous Goods Act 1985 to restrict the privilege against self-incrimination to natural persons only. At common law the privilege is not available to corporations – Caltex Refining Co Pty Ltd v State Pollution Control Commission (1993) 178 CLR 477, nor is the privilege available against exposure to a pecuniary penalty – Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 281.

[7]. Amends section 45 of the Dangerous Goods Act 1985 to provide that offences against the Act itself (as distinct from contraventions of the regulations) will now be indictable offences.

[9]. Amends section 20 of the Equipment (Public Safety) Act 1994 to restrict the privilege against self-incrimination to natural persons only (refer to clause 6 above).

[10]. Amends penal provisions in the Equipment (Public Safety) Act 1994 by increasing maximum penalties for offences.

[11]. Amends section 40(8) restrict the privilege against self-incrimination to natural persons only, consistent with the position at common law (refer to clause 6 above).

[12]. Amends penal provisions by increasing maximum penalties for offences.

[13]. Increases the maximum penalty to be imposed on an employer for breaching the obligation (section 21) to establish and maintain a safe working environment.

[14]. Amends section 54 (offence of discrimination) so that an offence is committed where a prohibited discriminatory reason for dismissal of a worker is not the sole reason but is at least a substantial reason for the employer taking the adverse action (Refer to clause 16 below).

[15]. Amends Schedule 4 of the Magistrates’ Court Act 1989 in respect to revised penalties applicable to indictable offences triable summarily under the Acts named in clauses 7, 9 and 11 above.

[16]. Amends section 242 of the Accident Compensation Act 1985 (discriminatory dismissal of worker) so that an offence is committed where a prohibited discriminatory reason for the dismissal of a worker for reason of –

• providing information or giving evidence to the Authority under section 239, or

• allowing an inspection of premises, the inspection of books or the giving of information under section 240, or

• or given the employer notice of an injury, or

• taking steps to pursue a claim for compensation

is a substantial reason for the employer to dismiss the worker, and not just where, as is the current position, the reason is the sole or dominant reason.

The Committee makes no further comment.

The Bill amends the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the Control of Weapons Act 1990, the Intellectually Disabled Persons' Services Act 1986 and the Mental Health Act 1986 with respect to security patients and persons subject to supervision.

[2]. Part 1 and 6 come into operation on the day after Royal Assent. The remaining provisions of come into operation on proclamation but not later than 1 July 2002.

[3]. Includes an amendment to clarify that a person may not appeal from a supervision order made by the Court of Appeal back to the Court of Appeal. It is not intended to curtail any other appeal rights a person in this situation may have.

[4]. Inserts a new sub-section 5(2) to clarify the existing position that if a person is found not guilty because of mental impairment on a charge heard in the Magistrates Court, the magistrate must discharge the person. Magistrates cannot impose supervision orders under the Act.

[5]. Inserts a new section 19A which gives the Director of Public Prosecutions ("DPP") the right to appeal against an unconditional release under section 18(4)(b)* of the Act. An unconditional discharge in this section follows a finding by a jury at a special hearing that the defendant committed the offence charged or an offence available as an alternative. The DPP may appeal if he or she considers that the order should not have been made and that an appeal is in the public interest. * Where a jury has determined that the defendant committed the offence charged the judge must either declare the defendant liable to supervision or release the defendant unconditionally.

On such an appeal the Court of Appeal may confirm the order or declare the defendant liable to supervision under Part 5 of the Act.

If the latter course is taken the Court of Appeal may itself make the supervision order, or remit the matter to the court that ordered the release. The Court may remit the matter with directions and, if directions are given, the court that ordered the discharge must follow those directions.

[6]. Inserts a new section 24A which allows the DPP to appeal against an unconditional release under section 23(b) of the Act. An unconditional release in this section follows a finding by a jury at a trial that the defendant is not guilty because of mental impairment. As under section 19A, the DPP may appeal if he or she considers that the order should not have been made and that an appeal is in the public interest. The Court of Appeal is given the same powers as it is given under section 19A.

[7]. Section 28 is amended to require the court to state the day from which a nominal term runs. The court may state that the nominal term will run from a day earlier than the day on which the supervision order is made. This will allow a nominal term to be backdated to take into account any time a person has spent in detention or custody in relation to proceedings for the offence.

[8]. Inserts new section 28A which contains appeal provisions in relation to supervision orders. A person who is subject to a supervision order may appeal to the Court of Appeal against that order.

[10]. Creates the power to obtain a court warrant for any person who leaves Victoria in contravention of a supervision order. Either the person's supervisor or the Secretary DHS will have the power to apply to the court for a warrant for the person's arrest.

New section 30B covers the situation where a person subject to a custodial supervision order is absent without leave and has left Victoria. Again, either the person's supervisor or the Secretary DHS will have the power to apply to the court for a warrant for the person's arrest.

Once a warrant is issued under either of these sections, it can be executed interstate under the provisions of the Commonwealth Service and Execution of Process Act 1992.

[13]. Substitutes a new section 34 and inserts a new section 34A dealing with appeals to the Court of Appeal against the confirmation or variation of supervision orders and appeals against revocation of non-custodial supervision orders.

[15]. Clarifies the rights of appearance of the various parties who have roles under the Act.

[16]. Substitutes a new section 38 that provides that the rules of evidence do not apply to the various applications and reviews under the Act.

[17]. Prescribes notices to parties who may potentially be involved in hearings under the Act. It inserts a number of new sections placing an obligation to give notice of hearings on various parties including family members and the victim of the offence.

New section 38D allows the court to order that a person other than a parent or guardian is to receive notice on behalf of a family member or victim under 18.

New section 38E allows for a limited amount of information about the person subject to the order to be supplied to the family member or victim. This is to assist the family member or victim in preparing a report under section 42 of the Act.

New section 38F requires a person subject to a supervision order to supply a list of their family members to the DPP. Section 38F(2) sets out when this list is to be supplied.

[21]. Amends section 42 so that reports of family members and victims can also be used by the courts in determining whether to grant extended leave.

[25]. Substitutes section 54 and also inserts new sections 54A and 54B. These provisions give guidance to the Forensic Leave Panel when considering applications by forensic patients and forensic residents for on-ground leave or limited off-ground leave.

[27]. Substitutes section 57 to provide that an application for extended leave may either be made by the forensic patient or the forensic resident or by the authorised psychiatrist or Secretary DHS. A person may appeal a refusal to grant extended leave to the Court of Appeal.

The Secretary DHS or the DPP or Attorney-General (if they were parties to the proceedings granting extended leave) may appeal against a grant of extended leave if he or she considers that the extended leave should not have been granted and an appeal is in the public interest.

[29]. Inserts a new section 58A, which provides for appeals to the Court of Appeal in relation to decisions concerning revocation of the extended leave of a person subject to a supervision order. A person whose extended leave has been revoked may appeal against that revocation. The Secretary DHS may appeal against a refusal to revoke extended leave if he or she considers that the extended leave should have been revoked and that an appeal is in the public interest. The DPP or the Attorney-General may appeal on the same terms as the Secretary DHS, provided that they were a party to the revocation proceeding.

[30]. Inserts a new Part 7A (new sections 73A to 73H) which sets out legal procedures for the interstate transfer of persons subject to supervision under the Act or equivalent legislation of another State.

73A. Defines various terms that are necessary for the operation of the new Part 7A.

73B. Defines when a law of another State or Territory is a corresponding law, and when a type of order made under the corresponding law is an interstate supervision order, for the purposes of Part 7A.

73C. Defines when a person is taken to have given informed consent for the purposes of an interstate transfer or an interim disposition determined by the Victorian Minister.

73D. Defines when a person who is subject to a supervision order in Victoria may be transferred to another State of Australia.

73E. Provides for the transfer of a person who is subject to an interstate supervision order to Victoria.

73F. Provides that within 6 months of a person being transferred to Victoria pursuant to 73E, the Secretary DHS must apply to the Supreme Court for a review to determine an appropriate disposition for that person.

[33]. Amends section 9(1) of the Control of Weapons Act 1990 so that if a person is charged with an offence under that Act and is found not guilty of that offence because of mental impairment, the forfeiture provisions of section 9 of that Act will still apply.

[38]. Inserts a new section 43A in the Act providing that the chief psychiatrist may issue, vary and revoke clinical guidelines relating to the discharge of security patients, and in doing so, must consult with the Correctional Services Commissioner and the Mental Health Review Board.

[40]. Substitutes a new section 51 in the Act which removes the power to grant leave of absence to security patients from the chief psychiatrist and gives that power to the Secretary to the Department of Justice (the Secretary). The substituted section 51 has no appeal provision from a decision of the Secretary to the Mental Health Board (the Board) whereas the current provision in section 51(4) allows an appeal to the Board from a decision of the chief psychiatrist.

Section 4D(a)(iii) Parliamentary Committees Act 1968 – Makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions. The Committee notes a submission from the Public Advocate, Mr Julian Gardner concerning the substituted section 51 proposed by clause 40. The submission draws attention to the removal in the substituted section 51 of a right to appeal to the Mental Health Review Board in circumstances where the current section 51 allows an appeal where the Chief Psychiatrist has refused to grant, or extend, a leave of absence or revokes leave of absence.

The Committee will write to the Minister for advice concerning the absence of an appeal provision in the substituted section 51.

[43]. Amends section 93L of the Act to clarify that the provisions concerning escort of Victorian patients apprehended interstate apply to security patients and forensic patients.

The Committee makes no further comment.

The Bill amends the Casino Control Act 1991 and the Gaming Machine Control Act 1991 to further regulate gaming; and amends the Tobacco Act 1987 to prohibit smoking in places where gaming machines are played.

The Bill –

• bans smoking in gaming areas;

• bans gaming machines accepting notes instead of coins;

• limits cash winnings pay outs to under $250 with larger amounts to be paid by cheque;

• provides an operations break of 10 minutes on gaming machines after 90 minutes of operation;

• bans automatic teller machines at gaming venues;

• removes certain gaming incentives and loyalty promotions.

[2]. The provisions in the Bill (except section 13) commence on 1 February 2003. Section 13, comes into operation on 1 February 2006.

[3]. Amends section 13 to make it a condition of every casino licence that there are no automatic teller machines in the casino or in any premises adjoining or surrounding the casino. The amendment applies to licences issued after 1 February 2003.

[5]. Amends the disciplinary and licence suspension provisions in section 20 to reflect the new offences introduced by [16 and 17].

[6]. Amends section 62A to prohibit a gaming machine to be used unless the design of the machine is such that only coins can be accepted for betting; and the maximum winnings or accumulated credits that the gaming machine can pay out in cash is $250; and the gaming machine ceases operating for a period of at least 10 minutes after it has been operating for a period of 90 minutes. If a gaming machine was lawfully used immediately before 1 February 2003 the new provision does not apply to the machine until 1 February 2006.

[8]. Amends section 12H of the Act to make the same consequential amendment to [3] above.

[9]. Amends the disciplinary and licence suspension provisions in section 30 to reflect the new offences introduced by [16 and 17].

[11]. Inserts new section 69A to make the same consequential amendment to the Act as [6] above.

[12]. Inserts new sections 81A-81C into the Act to provide that any person who holds a licence under the Act or is a gaming operator, must not give a person cash or gaming tokens in exchange for a cheque to enable that person or any other person to play a gaming machine in an approved venue. New section 81B provides that winnings over $250 must be paid by cheque. Further a licence holder must not provide a player with any rewards or loyalty schemes.

[16].Inserts new sections 5E and 5F.

5E. Provides that a person must not smoke in a gaming machine area in a casino or in a restricted area. If an inspector believes on reasonable grounds that a person is committing or has committed an offence the inspector, on producing his or her identity card, may direct the person to cease the contravention.

5F. If smoking occurs in a gaming machine area in a casino or a restricted area the occupier of the gaming machine area or restricted area is guilty of an offence. Penalty 5 penalty units.

It is a defence to a prosecution if the defendant proves that they did not provide an ashtray, matches, a lighter or any other thing designed to facilitate smoking and could not have been reasonably expected to be aware that the contravention was occurring, or had requested the person to stop smoking or had taken immediate steps to remove that person from the gaming venue if that person had not complied with the request.

[17]. Inserts new section 15BA providing that a casino operator must cause prescribed no smoking signs to be displayed at entrances to the gaming machine area in the casino as would reasonably identify the area as a no smoking area.

The Committee makes no further comment.

The Bill amends the Infertility Treatment Act 1995 ("the Act") to clarify the matters that a doctor must be satisfied with before carrying out a treatment procedure. The Committee notes the comments in the Second Reading Speech –

The purpose of this Bill is to amend the Infertility Treatment Act 1995 by including a new section 4A, which requires a doctor to be satisfied either that a woman has a physical condition preventing pregnancy or that sperm produced by her husband is unlikely to cause a pregnancy before access to assisted reproductive technology (ART) is allowed.

The Bill makes it clear that psychological infertility is not a criterion for access to ART, and further, emphasises that the title of the Act remains a guiding principle for access: it is the Infertility Treatment Act, and therefore only physical conditions preventing pregnancy should be considered by the treating doctor.

[2]. The provisions in the Bill come into operation on the day after Royal Assent.

[4]. Inserts a new section 4A providing –

This Act does not authorise the carrying out of a treatment procedure on a woman where the doctor is satisfied that the woman is unlikely to become pregnant other than by a treatment procedure unless the doctor is also satisfied, on reasonable grounds –

(a) that the woman has a physical condition causing an inability to become pregnant other than by a treatment procedure; or

(b) that sperm produced by the husband of the woman is unlikely to cause the woman to become pregnant from an oocyte produced by her other than by a treatment procedure; or

(c) that the husband of the woman is unable to produce sperm.".

The Committee makes no further comment.

The Bill amends the Road Safety Act 1986 ("the Act") and the Sentencing Act 1991 to empower the Magistrates' Court to require the use of alcohol interlocks as a condition of the granting of a licence or permit to certain disqualified drivers.

[2]. Sections 1 and 2 commence on Royal Assent and the remaining provisions commence on proclamation but not later than 1 August 2002.

[3]. Inserts new definitions into section 3(1) including a new definition of "alcohol interlock" being a device to be fitted to motor vehicles to analyse breath samples (blood alcohol content ‘BAC’) for the presence of alcohol and to prevent vehicles being started if they detect alcohol.

[7]. Inserts new sections 50AAA to 50AAJ and provides for the alcohol interlocks scheme.

50AAA. Empowers a Magistrates' Court to order that a drink-driver must have an alcohol interlock condition on his or her licence. The section applies when a court is considering an application by a drink-driver for a licence restoration order. If the court decides to impose an alcohol interlock condition on a first offender, it must be for at least six months:

For repeat offenders, section 50AAA(3) will require that alcohol interlock conditions be imposed in all cases. Minimum periods are prescribed by section 50AAB(3).

Where an alcohol interlock condition must be imposed, the court does not need to consider an alcohol assessment report before granting a licence restoration order:

50AAB deals with how an alcohol interlock condition can be removed.

50AAB(3). Provides that for repeat offenders where an interlock condition is imposed it must be imposed for a minimum period which may be either 6 months or 36 months depending on the alcohol reading and whether it is a second or subsequent offence.

In determining whether a person is a first, second or subsequent offender, a conviction or finding of guilt is to be disregarded if it was recorded 10 years or more before the person applied for the restoration of his or her licence (refer to [8]).

VicRoads may not remove an alcohol interlock condition except on the order of a court.

50AAB(5). Provides that a person may apply to a court for the removal of an alcohol interlock condition and must obtain an alcohol assessment report and 50AAB(6) deals with the matters that should be taken into account by a court when considering whether to allow the drink-driver to drive without an alcohol interlock.

50AAC. If a Magistrate imposes an alcohol interlock condition on any offender that is longer than the relevant minimum period or where the offence is a first offence (over 0.15 BAC), the person may appeal against that decision to the County Court: See section 50AAC.

50AAD. It is an offence for a person to breach an alcohol interlock condition. This includes driving a vehicle without an interlock, or a vehicle that was started by circumventing the interlock.

It is a defence to a charge of breaching an alcohol interlock condition if the person reasonably believed that an interlock fitted to the vehicle was an approved interlock that was installed and maintained in accordance with the Act.

A court may order that the vehicle used in the offence be immobilised for up to 12 months to prevent its use.

50AAE. Deals with the approval of alcohol interlocks and suppliers of interlocks by VicRoads for the purposes of the new provisions.

50AAF. Enables VicRoads to give approval subject to conditions, such as a condition requiring suppliers to make interlocks available on concessional terms to persons of limited means, in accordance with guidelines.

50AAG. Enables VicRoads to issue guidelines in relation to the interlocks and interlock suppliers. These could include, for example, guidelines in relation to the terms and conditions on which suppliers are to provide interlocks to persons of limited means.

The Committee notes that the imposition of a condition that an interlock device be fitted may in some cases cause additional financial hardship and act as a de facto penalty. The Committee further notes that ‘guidelines’ are not statutory rules within the meaning of section 3 of the Subordinate Legislation Act 1994 and are therefore not amenable to Parliamentary scrutiny under that Act. The Committee considers that a legislative base concerning financial hardship and concessional availability of interlock devices may be preferred. In this respect the Committee notes the submission of the Law Institute of Victoria.

The Committee will write to the Minister seeking further information in respect to this provision.

50AAH. Where VicRoads cancels an interlock approval it may (but will not be required to) send notices to all persons who are subject to an alcohol interlock condition. VicRoads must specify in the Government Gazette and in a newspaper the date, being not less than one month from the date of the notice, after which the interlock may not be used. After approval of an interlock has been cancelled because it is defective, it will be a breach of an alcohol interlock condition to drive in a vehicle fitted with one of those interlocks.

50AAI deals with the cancellation of approval of an alcohol interlock supplier.

50AAJ. Provides a right of review to VCAT of a decision by VicRoads to refuse to give, or to cancel, approval of an interlock or of an alcohol interlock supplier.

[9]. Amends section 19 to require a person subject to an alcohol interlock condition to carry their driver's licence at all times when driving and also amends section 52(1B) to fix a zero BAC limit in respect of drivers who must comply with an alcohol interlock condition.

[10 and 14]. Inserts a new section 103B in the Act and a new section 126 in the Sentencing Act 1991 to provide that the new interlock provisions apply only in respect of offences committed after those provisions come into force.

[11]. Inserts a new section 87C into the Sentencing Act 1991 to provide corresponding definitions for the new interlock provisions and to provide that convictions and findings of guilt recorded 10 years or more previously are to be disregarded for the purpose of determining whether the alcohol interlock provisions apply to a person.

[13]. Inserts new sections 89A to 89D into the Sentencing Act 1991.

89A. Corresponds generally to new section 50AAA of the Road Safety Act 1986, inserted by [7]. It deals with the imposition of alcohol interlock conditions on persons convicted of offences involving the use of a motor vehicle where alcohol was a factor in the offence. New sections 89B, 89C and 89D also correspond with new section 50AAB, 59AAC and 50AAD inserted in the Road Safety Act 1986 by the Bill.

The Committee makes no further comment.

The purpose of the Bill is to enable Scotch College to establish investment common funds for the collective investment of trust funds.

[2]. The Act comes into operation on the day after Royal Assent.

The Act was assented to on 18 December 2001.

The Bill amends the Sentencing Act 1991 (‘the Act’) to provide for a new sentencing order know as a drug treatment order (DTO); and the Magistrates' Court Act 1989 to establish a Drug Court Division of the Magistrates' Court; and makes consequential amendments to the Corrections Act 1986.

[2]. Sections 1 to 3 come into operation on the day after Royal Assent. The remaining provisions of the Act (other than sections 8, 9 and 14*) come into operation on proclamation, but no later than 1 December 2002 (in the case of section 11 no later than on 1 December 2003).

*Sections 8, 9 and 14, which provide for the repeal of amendments made by the Act, commence four years after the day on which clause 5 comes into operation.

[4]. Makes a series of definition and other similar amendments to the Act consistent with the new drug treatment order sentencing order introduced by the Bill.

[5]. Inserts a new Subdivision (1C) in relation to drug treatment orders in Division 2 of Part 3 of the Principal Act. This new Subdivision consists of new sections 18X to 18ZS.

18X sets out the particular purposes of a drug treatment order.

18Y provides that only the Drug Court may make a drug treatment order.

18Z sets out the circumstances in which the Drug Court may make a drug treatment order. An order may be made where –

• the offender pleads guilty to an offence within the jurisdiction of the Magistrates' Court, other than a sexual offence or an offence involving the infliction of actual bodily harm other than of a minor nature;

• the Drug Court convicts the offender of the offence;

• the Drug Court is satisfied that the offender is dependent on drugs or alcohol and that the offender's dependency contributed to the commission of the offence;

• the Drug Court considers that a sentence of immediate imprisonment, would otherwise be appropriate;

• the Drug Court has received a drug treatment order assessment report on the offender and;.

• the offender has agreed in writing to the making of the order.

18ZC describes the two parts of a drug treatment order being the treatment and supervision part; and the custodial part.

The two parts of a DTO operate concurrently and need not be the same length.

18ZD concerns the custodial part of the drug treatment order. It provides that, when making a drug treatment order, the Drug Court must impose the sentence of imprisonment that it would have imposed had it not made the drug treatment order.

18ZE describes the concept of activation of the custodial part of a drug treatment order.

18ZF sets out the core conditions of a drug treatment order, all of which must be attached to the order while the treatment and supervision part of the order is in operation.

18ZH(1) gives the Drug Court a general power to vary the treatment and supervision part of a drug treatment order from time to time, if it considers it appropriate to do so based on its assessment of the offender's progress.

18ZI(4) provides that no objection can be taken to a Drug Court magistrate subsequently constituting the Drug Court in a proceeding on the ground that he or she had previously convened a case conference in relation to that proceeding.

18ZJ provides that the drug court on its own initiative may confer a sentencing rewards on offenders for full or substantial compliance of conditions attached to a drug treatment order.

18ZK gives the Drug Court the power to cancel the drug treatment order (by cancelling both of its parts) if the offender has fully or substantially complied with the conditions attached to the order, and the continuation of the order is no longer necessary to meet the purposes for which it was made.

18ZL concerns the situation where an offender has failed to comply with a condition of a drug treatment order, other than by committing an offence punishable on conviction by imprisonment for more than 12 months.

18ZM concerns the imprisonment or detention of an offender in a secure custody facility where the offender has failed to comply with a condition attached to the DTO.

18ZN concerns the situation where an offender has failed to comply with a condition attached to a drug treatment order by committing an offence punishable on conviction by imprisonment for more than 12 months.

18ZP sets out a number of circumstances in which the Drug Court may cancel the treatment and supervision part of the drug treatment order.

18ZQ deals with the preparation of drug treatment order assessment reports, the principal purposes of which are to establish whether a defendant is suitable for a drug treatment order and to prepare a case management plan for the defendant.

18ZR sets out special provisions in relation to appeals to the County Court.

18ZR is not intended to affect appeals to the Supreme Court against sentencing orders of the Magistrates' Court, including the Drug Court.

18ZS provides for a limited immunity from prosecution for illicit drug use and possession offences as a result of admissions made in connection with assessment of the eligibility of a person for a drug treatment order, or in connection with the assessment by the Drug Court of the person's progress under a drug treatment order.

[7]. Inserts a new section 126 in the Act to provide that the new sentencing option introduced by this Bill applies to the sentencing of a person for an offence, irrespective of when the offence was committed.

[8]. Repeals the amendments made by [4 and 5] and commences four years after the day on which [5] comes into operation.

[9]. By way of a sunsetting transitional provision, a new section 126A is inserted to provide that the Bill as amended will continue to apply to a drug treatment orders in force immediately before the repeal by [8].

[10]. Inserts new sections 4A and 4B in the Magistrates' Court Act 1989 establishing a new Drug Court Division of the Magistrates' Court composed of specially assigned magistrates who may only sit and act at a venue as published in the Government Gazette.

[12]. Amends section 3 of the Corrections Act 1986 to include a drug treatment order in the definition of "correctional order". [13]. Amends section 6C of that Act to clarify that a person who is subject to a DTO and is in the community is not regarded to be in the legal custody of the Secretary to the Department of Justice, and [14] repeals the amendments made in that Act by [12 and 13], four years after the day on which clause 5 comes into operation.

The Committee makes no further comment