Scrutiny of Acts and Regulations Committee

Inquiry into the Summary Offences Act 1966
Final Report, November 2001

Table of Proposals and Recommendations

[4] [5] [7] [8] [9] [9A] [10] [11] [12] [13] [14] [16]
[17] [20] [21] [22] [23] [24] [25] [26] [27] [28] [29]
[30] [31] [32] [33] [34] [37] [38] [39] [42] [45] [46]
[47] [48] [49] [50] [50A] [52] [52A] [53] [54] [55]
[56] [57] [58] [59] [60] [60A] [61] [62]

[Back to Table of Contents]

PART I – Provisions applicable throughout Victoria

Division 1 – Public Order Offences relating to the good order of towns, etc

Summary Offences Act 1966

Proposals

Reasons for Proposal

Other/Proposed Legislation

Comments

4. Any person who –

(a) burns rubbish shaving or other materials in a public place — shall be guilty of an offence.

 Repeal 1. A similar provision already exists in another Act.

2. Local government may regulate this.

 Environment Protection Act 1970, s. 41.

Local Government Act 1989, Schedule 1.1(1); 1.7(8).

 The other proposed legislation noted can be used to address offences of difference of seriousness. Section 41 of the Environment Protection Act 1970 carries a very high penalty (2400 penalty units). This suggests it is more suitable for very serious offences. The Committee believes that less serious examples of this offence would be more appropriately governed by appropriate local laws, which contain lower penalties.

(b) leaves inflammable materials or matter in or on a public shed or place or in an open space near a building without first obtaining the permission of the local authority — shall be guilty of an offence.

 Repeal 1. A similar provision already exists in another Act.

2. Local government may regulate this.

 Litter Act 1987, s. 5 (depositing of litter generally)

Local Government Act 1989, Schedule 1.1(1), (7); 1.7(8)

Occupational Health and Safety Act 1985 s21 (general duty to ensure that workplaces are safe).

  

(c) opens a drain or sewer in or removes the surface of a footpath or road without first obtaining the permission of the local authority — shall be guilty of an offence.

Repeal

 1. Similar provisions already exist in other Acts. Water Act 1989,
ss. 288, 290;
Health Act 1958 s. 39A(f)		 The Committee considers that this activity may be regulated by other more appropriate means. Section 42 of the Health Act, which creates a general offence of causing a nuisance, may provide one such alternative. In addition, local councils may also regulate this activity by use of the schedules mentioned.
2. Amend Transport Act 1983, the Transport (Roads and Property) Regulations 1993  
3. Local government may regulate this. Local Government Act 1989,
ss. 198(1)(a), (b), (c); 203(4)(a), (b)(5), Schedule 1 Part 6, 2.4 and 4.3, 10.1.

Occupational Health and Safety Act 1985 s21 (general duty to ensure that workplaces are safe).

(d) in a public place –

(i) flies a kite; or
(ii) plays at a game

to the annoyance of any person.

Repeal

 1. This conduct does not warrant a criminal penalty.

2. Local government may regulate this

 Local Government Act 1989. The Committee considers that the specific offence of this nature is not required. It notes that if games are played in a manner that places people in danger, such conduct may be the subject of charges under s17 of the Crimes Act 1958. If no such danger is present, the general criminal law should not be used to regulate the activity. In any case local councils may still regulate such activities under local laws.

(e) obstructs a footpath or road whether by allowing a vehicle to remain across such footpath or road or by placing goods thereon or otherwise — shall be guilty of an offence.

Repeal

 1. This offence is appropriate for inclusion in Schedule 4 of the Road Safety (General) Regulations 1999. Road Safety (General) Regulations 1999.  
2. Local government may regulate this. Local Government Act 1989, 202, Schedule 6.

(f) has an awning on or over a footpath in a public street or thoroughfare not being 2.13 metres clear above the footpath or hangs goods on or under an awning over the footpath — shall be guilty of an offence.

 Repeal 1. Local government may regulate this. Local Government Act 1989,
s. 111(1), Schedule 1.3(1).		 The Committee considers that if the activity is to be subject to regulation, it should be by way of local laws administered by local councils.

(g) carries out a blasting operation in or near a public place without first obtaining the permission of the local authority or does not attend to all directions in regard thereto given by the local authority — shall be guilty of an offence.

Repeal and
re-enact

 A similar provision already exists in another Act. The Committee considers that the Dangerous Goods Act 1985 is a more appropriate statute to regulate this activity.

Section s37 of the Dangerous Goods Act 1985 applies to cases where there is a danger to life or property. It does not, however, clearly extend to cases where the blasting does not pose a direct danger to life or property but is nonetheless a nuisance, e.g. blasting conducted on uninhabited public lands where no people are within any appreciable distance. A small amendment to the Act may be required if it is to clearly extend to such activities.

The Committee notes that local councils may not be able to regulate such activities because the type of uninhabited land that blasting which does not endanger life or property includes state and national parks and reserves. Such land is not subject to local government regulation.

 Dangerous Goods Act 1985,
s. 37(1)(a), (b), (c).		  
(h) exposes in a public street or thoroughfare (except in a fair or market lawfully appointed for that purpose) a vehicle or a horse or other animal for show hire or sale; Repeal

1. A similar provision already exists in another Act

 Road Safety (Road Rules) Regulations 1999, r. 401(1), (2) 
2. Local government may regulate this. Local Government Act 1989,
Schedule 1.6(2).
(i) makes a cellar, door or other opening from the footpath of a public street or thoroughfare without the consent of the local authority; Repeal 1. A similar provision already exists in another Act. Transport (Roads and Property) Regulations 1993. 
2. Local government may regulate this. Local Government Act 1989,
s. 111(1), Schedule 1.6(2).
(j) sets off fireworks in a public place without first obtaining the permission of the local authority Repeal 1. A similar provision already exists in another Act. Dangerous Goods Act 1985,
s. 37(1)(a), (b), (c).		The Dangerous Goods (Explosives) Regulations 2000 Part 7 provide a detailed permit system for the use of fireworks, and include a requirement of local council permission in most cases.
2. Local government may regulate this. Local Government Act 1989, (Repealed 60/1995) s. 111(1), Schedule 1.1(1), 1.7(8).
5. Where in a prosecution for obstructing a footpath street or road under–

(a) paragraph (e) of section 4; or

 Repeal 1. Not relevant with the repeal of section 4(e) of the Act. Road Safety (Road Rules) Regulations 1999 
(b) any local law made under section 111 of the Local Government Act 1989 or any corresponding previous enactment –

the obstruction alleged is by assemblage of persons (not being a procession) or by any person or persons forming part of or connected with such assemblage the court shall not convict the defendant unless it is satisfied that, having regard to all the circumstances of the case and to the amount of traffic which actually was at the time on the footpath street or road, there was undue obstruction thereof.

 Retain, pending passage of the Peaceful Assemblies Bill 2001.     This provision should be repealed for the same reason given for s5(a).
7. Any Person who –

(a) places upon any road footpath canal or waterway an obstruction likely to cause death or injury to any person passing thereon;

Repeal

 1. Similar provisions already exist in other Acts. Crimes Act 1958, ss. 22-24;
Road Safety (Road Rules) Regulations 1999, r. 401.		  
2. Local government may regulate this. Local Government Act 1989,
s. 111(1), Schedule 1, 2(4), 4(1), 6(1), (2) and (4).
(b) leaves a hole excavation or dangerous formation in or near a public place unguarded or without having a warning light burning nearby between sunset and sunrise;

Repeal

 1. Local government may regulate this. Local Government Act 1989,
s. 111(1), Schedule 1.6(2), (3) and (4), Schedule 10, ss. 11 and 12.		  
(c) fails to keep in good repair any protective cover rail gate or fence over or about a cellar or lower area opening into or upon or near a public place or keeps any such cover rail gate or fence open for an unreasonable time in the circumstances; Repeal 1. Local government may regulate this.

The discussion paper also stated "Where unguarded works constitute conduct endangering life the Crimes Act 1958, s. 84 may apply."

 Local Government Act 1989,
s. 111(1), Schedule 1.6(2); Schedule 10, ss. 10 and 11.		  
(d) throws any offensive matter or thing or any animal into a waterway, canal or other place whence a supply of water for human use is obtained; Repeal 1. Similar provisions already exist in other Acts. Environment Protection Act 1970, s. 39(1); Health Act 1958,
s. 42; Water Act 1989,
ss. 288.		  
(e) draws or trails a sledge or timber or other heavy material upon a public footpath or road so as to damage the surface thereof; Repeal 1. Place offence in a more appropriate Act Amend the Transport Act 1983 Note: Local government does not have control over all roads.
2 Local government may regulate this Local Government Act 1989,
s. 111(1), Schedule 1.6. 		 
(f) in a public place rolls a drum, barrel or cask or breaks in a horse to the injury of or danger to any person or damage to any property; or Repeal 1. A similar provision already exists in another Act. Crimes Act 1958, s. 24.  
2. Local government may regulate this. Local Government Act 1989,
s. 111(1), Schedule 1.1(3), 2.(4)
(g) throws or discharges a stone arrow or other missile to the injury of or danger to any person or damage to any property —
shall be guilty of an offence.		 Repeal Although similar provisions already exist in other Acts, e.g. Crimes Act 1958, s. 23 (Recklessly placing another in danger of serious injury) and s. 24 (Negligently causing serious injury); Litter Act 1987,
ss. 5 and 6. The Committee believes that this offence provides a useful and appropriate lesser charge to the less serious offences. 		  The Discussion Paper of May 2001 suggested the repeal of this provision in favour of use of the applicable provisions of the Crimes Act.

Many of the submissions received by the Committee submitted that the alternative offences mentioned in the Discussion Paper do not achieve the same result as sub-section 7(g) because they each require a high standard of either intent or danger. These other offences are widely regarded as more suitable for cases that involve a serious level of danger. By contrast 7(g) may be used in situations that are not be as dangerous but still warrant some penalty.

8. Any person who–

(a) being the driver of a horse-drawn vehicle on a road goes away from the animal so as not to have control over it without securely fastening one of the wheels of the vehicle by a brake chain or strap so as to effectually prevent the wheel rotating;

Repeal

 1. Place offence in a more appropriate Act. Consequential amendments to the Road Safety (Road Rules) Regulations 1999 and the Road Rules – Victoria (1999) may be required.  
2. Local government may regulate this. Local Government Act 1989,
s. 111(1), Schedule 1.6(3).
(b) drives a cart wagon or dray in or through a public place without the name and residence of the owner thereof being painted in a legible and permanent manner on the right or off side in letters of at least 25 millimetres in length;

Repeal

 1. Place in a more appropriate Act. Road Safety Act 1986.  

(c) drives a dog or goat harnessed or attached to a vehicle in or through a public place;

Repeal

 1. Place offence in a more appropriate Act. Prevention of Cruelty to Animals Act 1986. The Committee considers that the most appropriate location for any consequential amendment depends on the intended purpose of the existing provision. If it is designed to protect the public a consequential amendment could be most suitably incorporated into the Road Safety Act 1986. If the existing clause is intended to protect animals any consequential amendment would be better placed in the Prevention to Cruelty to Animals Act 1986. This Act contains other similar provisions, e.g. s9 (general offence of cruelty to animals) s10 (aggravated cruelty) s15A (offence to drive with a dog kept in a utility vehicle unless the dog is properly secured). It should be noted that this Act contains general offences of cruelty against animals. It may be that the particular protection offered by s8(1)(c) is redundant.
2. Local government may regulate this. Domestic (Feral and Nuisance) Animals Act 1994, ss. 28 and 29.

Local Government Act 1989,
s. 111(1); Schedule 1.1(3).

(d) turns loose or allows to wander any cattle or other beast upon a public road or thoroughfare; Repeal 1. Place offence in a more appropriate Act.    
2. Local government may regulate this.  
(e) sets on urges or permits a dog or other animal to attack or worry any person horse or other animal or by ill-usage or negligence in driving cattle causes any mischief to be done by such cattle; Repeal 1. A similar provision already exists in another Act. Domestic (Feral and Nuisance) Animals Act 1994, ss. 28 and 29; Crimes Act 1958, ss. 23 and 197(1).  
2. Local government may regulate this. Local Government Act 1989,
s. 111(1), Schedule 1.1(3).
(f) obstructs or prevents the driving of cattle along over or across a public road or thoroughfare; Repeal 1. Local government may regulate this. Local Government Act 1989,
s. 111(1), Schedule 1.1(3), 6.		  
(g) slaughters or skins a beast on a public road or thoroughfare; Repeal 1. A similar provision already exists in another Act. Health Act 1958, s. 305;
see also The Meat Inspection Act 1983 (Cth), ss. 17 and 18.		  
(h) leaves a dead beast or its skin on a public road or thoroughfare; Repeal 1. A similar provision already exists in another Act. Litter Act 1987, s. 5(1);
Health Act 1958, ss. 39A and 42.		  
(i) being the driver guard or conductor of a public vehicle for the conveyance of passengers wilfully delays on the road or uses any abusive or insulting language to any passenger, or by reason of intoxication or other misconduct endangers the safety or property of any passenger or other person —
shall be guilty of an offence.		 Repeal 1. Similar provisions already exist in other Acts. Road Safety Act 1986, s.49(1), 64; or Transport Act 1983  
9(1) Any person who–

(a) destroys damages pollutes or obstructs any aqueduct dam sluice pipe pump waterway pond pool or fountain;

 Repeal 1. Similar provisions already exist in other Acts. Environment Protection Act 1970, s. 39(1); Crimes Act 1958,
s. 197.		 The Committee considers that more serious examples of the offence could be charged under s197 of the Crimes Act, while other offences could be charged under s39(1) of the Environment Protection Act.
(b) being an artificer workman journeyman or apprentice wilfully damages spoils or destroys any goods wares work or material committed to his care or charge; Repeal 1. A similar provision already exists in another Act. Crimes Act 1958, s. 197.  
(c) wilfully injures or damages any property (whether private or public) the injury done being under the value of $500; or Retain with an amendment to the maximum value of property that may be covered by this offence. Although similar provisions exist in the Crimes Act 1958 (s197) the Committee believes that a separate summary offence of causing damage to property up to a specified value should be retained.   The Discussion Paper of May 2001 proposed that this sub-section should be repealed. However the evidence received by the Committee indicated significant support for the retention of this provision. However the Committee believes that the amount that is currently specified should be amended. The Committee received several submissions which noted that amount fixed in this sub-section had not been changed for many years. As a result the scope of the provision was fairly narrow. There was wide support for the retention of this provision and an increase in the amount specified. The Committee agrees that the specified amount should be increased to take account of inflation. It suggests the amount of $5,000.
(d) wilfully trespasses in any public place other than a Scheduled public place and neglects or refuses to leave that place after being warned to do so by the owner occupier or a person authorized by or on behalf of the owner or occupier; or

(e) without express or implied authority given by the owner or occupier or given on behalf of the owner or occupier by a person authorised to give it or without any other lawful excuse, wilfully enters any private place or Scheduled public place, unless for a legitimate purpose; or

 Retain 1. The Committee considers that an offence for willful trespass should be maintained.    
(f) neglects or refuses to leave a private place or Scheduled public place after being warned to do so by the owner or occupier or a person authorised to give that warning on behalf of the owner or occupier, unless the person has a lawful excuse; or

(g) without lawful excuse, enters any place (whether private or public) in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace–

shall be guilty of an offence.

 Retain      
Repeal Similar provisions exist in other clauses (d)(e)(f) of of this sub-section. The Discussion Paper of May 2001 proposed that this provision be retained. However, both the Law Institute and the Criminal Bar Association of the Victorian Bar expressed concern about the ‘breach of peace’ requirement in this sub-section. The Committee agrees that this element is unclear. It is also most likely to be redundant because if a person commits a trespass, it can be punished under other sub-sections. If there is an additional act of violence etc, such actions should be the subject of a separate charge. For these reasons, the Committee believes that the provision should be repealed.
9(1A) In any proceedings for an offence against sub-section (1) the statement on oath of any person that he is or was at any stated time the owner or occupier of any place or a person authorized by or on behalf of the owner or occupier thereof shall be evidence until the contrary is proved by or on behalf of the defendant that such person is or was the owner or occupier of that place or a person authorized by or on behalf of the owner or occupier thereof (as the case requires).

9(1B) A person may commit an offence against paragraph (d), (e), (f) or (g) of sub-section (1) even though he or she did not intend to take possession of the place.

9(1C) Without limiting paragraph (e) of sub-section (1), examples of circumstances in which a person does not have express or implied authority to enter a place are–

(a) the person enters that place after having been previously warned not to enter by the owner or occupier or a person authorised to give such a warning on behalf of the owner or occupier; or

(b) the person enters that place despite being then warned not to enter by the owner or occupier or a person authorised to give such a warning on behalf of the owner or occupier; or

(c) the person enters that place in breach of a prominently displayed sign erected at that place by the owner or occupier or a person authorised to erect such a sign on behalf of the owner or occupier stating that–

Retain

 1. The Committee considers that these sections should be retained because they remove the need for lengthy processes of proof for aspects of offences in s9(1) that are not controversial. This reasoning was supported by courts and legal professional organizations.   The Discussion Paper of May 2001 proposed the repeal of these sections because the Committee felt that they only further defined the element of offences under s9(1). However, evidence to the Committee from courts and legal professional associations supported the retention of these sections. This evidence satisfied the Committee that ss9(1A)-(1E) assist the administration of the corresponding offences in s9(1) by indicating how particular elements of the offences in sub-section 9(1)(d)(e)(f)(g) may be constituted. Sub-section (1A) does likewise to the issue of proof of ownership or occupancy.
(i) the person concerned, or a class of persons of which the person concerned is a member, is prohibited from entering that place; or

(ii) persons engaging in that place in the type of activity in which the person concerned is proposing to engage in that place are prohibited from entering that place–

and the person has no other lawful excuse for entering that place.

9(1D) A warning may be given to a person under sub-section (1)(f) or sub-section (1C)(a) or (b)–

(a) orally; or

(b) by delivering written notice of it personally to the person; or

(c) except in the case of a warning under sub-section (1)(f), by sending written notice of it by certified mail addressed to the person at his or her usual or last known place of residence.

Retain

      
9(1E) A person may commit an offence against paragraph (g) of sub-section (1) even though he or she had a right to enter that place in a manner other than that described in that paragraph. Repeal. This section should be repealed as a consequence of the suggested repeal of s9(1)((g).    
9(2) For the purposes of section 86 of the Sentencing Act 1991 the cost of repairing or making good anything spoiled or damaged in contravention of this section shall be deemed to be loss or damage suffered in relation thereto. Retain.      
9(3) Nothing contained in this section shall extend to any case where the person offending acted under a fair and reasonable supposition that he had a right to do the act complained of or to any trespass (not being wilful and malicious) committed in hunting or the pursuit of game.

Repeal and re-enact

 The Committee considers that there should be a defence to the summary offence of trespass, though it should not be limited to hunting related matters as is presently the case. The Committee believes that a more general defence should be enacted along the following lines:

It is a defence to a charge under sub-section (1) if the defendant proves that it was necessary to enter or remain in or on the place concerned or to return to that place for the defendant’s own protection or the protection of some other person, or because of some emergency involving the defendant’s property of some other person.

    
9(A) Computer trespass

A person must not gain access to, or enter, a computer system or part of a computer system without lawful authority to do so.

Retain, pending the outcome of a review of computer crime by the Department of Justice.

 1. The provision is a useful mechanism to deter computer-related crimes in Victoria.   Earlier this year the Standing Committee of Attorneys-General (SCAG) released a very detailed report on computer offences (as part of the mode criminal code project). The Department of Justice is considering that report. The Department has indicated that it will revisit s9A as part of the implementation of the report.
10. Posting bills etc. and defacing property

(1) Any person who posts any placard bill sticker or other document on or writes or paints on or otherwise defaces any road bridge or footpath or any house building hoarding wall fence gate tree tree-guard post pillar hydrant fire-alarm petrol pump or other structure whatsoever without the consent of the occupier or owner of the premises concerned or of any person or body having authority to give such consent shall be guilty of an offence.

Retain

 1. The section is a useful mechanism to deter bill posters and graffiti.   The section heading of s10 of Summary Offences Act should be amended to include "graffiti" and minor offences. The Crimes Act 1958 should be amended

(a) to include an offence of "defacing property"; or

(b) to broaden the existing s197 to specifically cover more serious offences og graffiti and bill posting.

The Discussion Paper canvassed an amendment to the Crimes Act to include an offence of defacing property and the broadening of s197 to specifically cover more serious offences of graffiti and bill posting. However, evidence before the Committee indicated that s.197 is adequate to address offences of graffiti and bill posting which cause property damage. If the conduct does not damage the property, there appears no reason why it should be prosecuted as an indictable offence.

2. Local government may regulate this. Local Government Act 1989, Schedule 1.1(7).
(2) Upon any proceedings for an offence against sub-section (1)–

(a) the burden of proving any consent aforesaid shall be upon the defendant; and

Retain

 1. The Committee believes these provisions are necessary to establish the offences under s.10(1).   The Committee took evidence from several parties on this sub-section and considers that it removes the need for a property holder to give evidence that he or she did not give consent. A property holder would not normally consent to the posting of bill on his or her property. The reverse onus simply removes the need to call evidence to establish this normally obvious point. If, however, the landowner or property did consent the the posting of bills, the reverse onus does not prevent an accused from calling evidence to establish this point. On this view, the reverse onus provides a convenient means of prima facie establishing a procedural issue without significantly detracting from the rights of defendants.
(b) in the case of any placard, bill, sticker, poster, or other document containing an advertisement of a commercial nature any person who appears to the satisfaction of the court to have authorized the publication thereof or to be in any manner concerned in the promotion or management of any business or entertainment or any sport, game, exhibition, or other event of a commercial nature whatsoever referred to therein shall, unless he satisfies the court that he did not post such placard, bill, sticker, poster, or document or authorize the posting thereof and that otherwise he had no knowledge of such posting, be deemed to have posted such placard, bill, sticker, poster, or document (as the case may be).

Retain

     Evidence to the Committee questioned practical value of this clause. This evidence suggested that event promoters (who would normally conduct activity covered by this clause) often assert that they have used an agent to post and bills and did not authorise the posting of bills in any unlawful locations. It is normally difficult for the prosecution to prove otherwise.
(3) Nothing in sub-section (2) shall affect the liability under sub-section (1) of any person who actually posts any such placard, bill, sticker, poster, or other document and the conviction of any other person in relation thereto shall not exonerate from any penalty under this section any person who actually so posts any such placard, bill, sticker, poster, or document. Retain      
(4) Any person who without the authority of the publisher of a placard, bill, sticker, poster, or other document containing an advertisement of a commercial nature or of some person concerned in the promotion or management of any business, entertainment, sport, game, exhibition, or other event referred to therein posts the placard, bill, sticker, poster, or document in contravention of the provisions of sub-section (1) shall be liable upon conviction for an offence against that sub-section to a penalty of not more than $500 or to imprisonment for a term of not more than six months. Retain      
(5) Upon any proceedings for an offence against sub-section (1) the burden of proving the authority referred to in sub-section (4) shall be upon the defendant.        
(6) The court before which any person is convicted for an offence against this section may, in addition to imposing any penalty, order the defendant to pay to any person named in the order the cost of removing or obliterating any thing written posted or painted without such consent as aforesaid and making good any damage done thereby and every amount so ordered to be paid shall for the purpose of enforcing the payment thereof be regarded as part of the penalty and be recoverable accordingly. Repeal The Committee considers that this clause is redundant because Magistrates may make similar orders under the Sentencing Act 1991.    
11. Lighting of fires in the open air

(1) Except as provided in sub-section (2), a person must not–

(a) light or use a fire in the open air or carry when lighted any flammable material resulting in the destruction, damaging or endangering of the life or property of others; or

(b) leave a fire in the open air which that person has lighted or of which that person is in charge without leaving another person in charge of that fire.

Repeal

 1. Similar provisions already exist in other Acts. Crimes Act 1958, s. 197.Section 197 of the Crimes Act covers cases where a person lights a fire with an intent to cause damage or to threaten people. Section 11 of the Summary Offences Act covers fires that are lit foolishly or negligently rather than with a clear intention to cause damage. The Committee considers that these offences are complimentary rather than identical. Accordingly, if s11 is repealed an equivalent offence should be included in the Country Fire Authority Act 1958 and the Metropolitan Fire Brigade Act 1958.
2. Place in a more appropriate Act. The Committee believes that offences of this nature should be located in the statutes that regulate fire prevention and related activities. Country Fire Authority Act 1958 and the Metropolitan Fire Brigades Act 1958.
Local Government Act 1989,
Schedule 1.1(1).
(2) Sub-section (1) does not apply to the owner or occupier of any land or a person acting under the direction of an owner or occupier of any land who burns any grass, stubble, weeds, scrub, undergrowth or any vegetation, wood or other flammable material in an area of land if–

(a) a fire-break of not less than 3 metres and cleared of all flammable material has been prepared around the perimeter of the area of land; and

(b) at least two hours before burning is commenced, notice of intention to burn has been given to each owner or occupier of land contiguous to the area of land.

Repeal

 1. Similar provisions already exist in other Acts. Crimes Act 1958, s. 197.  
2. Place in a more appropriate Act Amend the Country Fire Authority Act 1958 and the Metropolitan Fire Brigades Act 1958.
3. Local government may regulate this. Local Government Act 1989,
Schedule 1.1(1).
(3) This section does not apply in the country area of Victoria within the meaning of the Country Fire Authority Act 1958 during a fire danger period within the meaning of that Act.

Repeal

      
(4) This section does not affect the right of any person to sue for and recover at common law or otherwise compensation for or in respect of any damage caused by reckless or negligent use of fire.

Repeal

      
12. Wilfully giving false alarm of fire

(1) Any person who wilfully gives or causes to be given to any brigade within the meaning of the Metropolitan Fire Brigades Act 1958 or the Country Fire Authority Act 1958 a false alarm of fire shall be guilty of an offence.

Repeal

 1. Place these provisions in a more appropriate Act. Country Fire Authority Act 1958, s. 20B; Country Fire Regulations 1992, r. 113(1)(a); Metropolitan Fire Brigades Act 1958, s. 32D. Evidence received from parties involved in the regulation of fire fighting activities submitted that an offence of this nature should be retained. The Committee agrees that an offence of this nature should be retained but considers that it should be located in legislation governing fire safety rather than the Summary Offences Act.
(2) In addition to any penalty or punishment imposed under this section, the court may order any person convicted of an offence under this section to pay to the Metropolitan Fire Brigades Board or the Country Fire Authority (as the case may be), as compensation for the expenses and charges incurred by any brigade under the control of the Board or the Authority (as the case may be) by reason of the false alarm having been given, such amount as is provided for by the regulations made under the Metropolitan Fire Brigades Act 1958 or the Country Fire Authority Act 1958 or such lesser amount as the court thinks fit.

Repeal

      
13. Persons found drunk

Any person found drunk in a public place shall be guilty of an offence and may be arrested by a member of the police force and lodged in safe custody.

Retain

Background:

The Report of the Drugs & Crime Committee proposed that ss13, 14 and 16 be repealed and comprehensive new legislation dealing with public intoxication be enacted. The Report also recommended that new legislation governing this area should enable intoxicated persons to be detained on a civil rather than criminal basis. It also proposed that such legislation should form only one part of a wider program to manage intoxicated people. The report recommended ‘sobering up centres’ to detain and treat people found intoxicated in public places, should be established before any move to decriminalise public drunkenness took effect.

Reason:

The Committee has considered the Report of the Drugs & Crime Committee. It also received significant evidence which examined the utility of ss13, 14 and 16. The Committee has concluded that the decriminalisation public drunkenness should not occur before programs to receive and manage persons found intoxicated in public places are developed. Sections 13, 14 and 16 should be retained in the meantime.

   
14. Persons found drunk and disorderly

Any person found drunk and disorderly in a public place shall be guilty of an offence.

Retain

 See above   See above.
16. Drunkards behaving in riotous or disorderly manner

Any person who, while drunk–

(a) behaves in a riotous or disorderly manner in a public place;

(b) is in charge, in a public place, of a carriage (not including a motor vehicle within the meaning of the Road Safety Act 1986) or a horse or cattle or a steam engine–

shall be guilty of an offence.

Retain

 See above   See above.
17. Obscene, indecent, threatening language and behaviour etc. in public

(1) Any person who in or near a public place or within the view or hearing of any person being or passing therein or thereon –

(a) sings an obscene song or ballad;

(b) writes or draws exhibits or displays an indecent or obscene word figure or representation;

(c) uses profane indecent or obscene language or threatening abusive or insulting words; or

(d) behaves in a riotous indecent offensive or insulting manner–

shall be guilty of an offence.

Repeal and
re-enact

 (1) The Committee believes these provisions are too specific in their prohibited behaviour and should be replaced by three new generic offences that create an offence for a person in a public place to—

(a) intentionally engage in conduct likely to be offensive, threatening or obscene to other people;

(b) using language that is likely to be offensive, threatening or obscene to other people;

(c) displaying material, depictions or representations that is likely to be offensive, threatening or obscene to other people

   The proposals for this provision from the Discussion Paper attracted considerable attention. There was wide agreement that the existing provision should be revised. Almost all submissions that addressed s17(1) agreed that the provision in its current form was unsatisfactory. Many submissions suggested that the intended scope and meaning of the provision was unclear. Several suggested such uncertainty enabled the provision to be applied in an indiscriminate or inconsistent manner. Many commentators also suggested that the social standards had changed in recent years to such an extent there was little if any general agreement about what conduct or language could be regarded as offensive. As a result it was suggested that summary offences governing language and behaviour were not appropriate and should be repealed. A significant number of other submissions agreed that the existing provisions were unclear but supported the existence of some form of general offences prohibiting offensive language and behaviour.
(2) Where in the opinion of the chairman presiding at a public meeting any person in or near the hall room or building in which the meeting is being held–

(a) behaves in a riotous indecent offensive threatening or insulting manner; or

(b) uses threatening abusive obscene indecent or insulting words–

the chairman may verbally direct any member of the police force who is present to remove such person from the hall room or building or the neighbourhood thereof and the member of the police force shall remove such person accordingly.

Repeal

 1. Similar provisions already exist in the Act. Trespass provisions in s. 9; and proposed new s.17 of this Act.  
(3) Where at a general meeting of a corporation a person wilfully fails to obey a ruling or direction given in good faith by the chairman presiding at the meeting for the preservation of order at the meeting, such person shall be liable to be removed from the meeting if the meeting so resolves or where because the meeting has been so disrupted that it is not practicable to put such a resolution to the meeting the Chairman so directs.

Repeal

 The Corporations Law contains very detailed provisions governing the conduct of company annual general meetings. There is no specific offence of disrupting an annual general meeting, though general offences of trespass or offensive behaviour could apply in some cases. The Committee notes that no charges have been instituted under this provision for some time.    
(4) Where a person is liable to be removed from a meeting under sub-section (3) the Chairman may verbally direct any member of the police force who is present to remove such person from the hall, room or building in which the meeting is being held or the neighbourhood thereof and the member of the police force shall remove such person accordingly.

Repeal

      
20. Improperly conducting refreshment house

(1) Any person who allows in any house building tent or other premises wherein liquors provisions or refreshments are sold or disposed of any drunkenness or other disorderly conduct or suffers any gaming whatsoever therein or suffers persons of notoriously bad character to frequent his premises shall be guilty of an offence.

Penalty: For a first offence – 5 penalty units; For a second or subsequent offence –imprisonment for three months.

Repeal

 1. Similar provisions already exist in other Acts. Liquor Control Reform Act 1998, ss. 90-91, s.108.

Lotteries Gaming and Betting Act 1966, ss 11-12, 17.

  
2. Local government may regulate this. Local Government Act 1989,
Schedule 1(7).		  
(2) Where a person convicted of an offence against this section is registered in respect of the premises concerned the registration shall be deemed to be cancelled and the premises to be unregistered and the court may, if it thinks fit, order that the premises be not again registered for any period not exceeding six months.

Repeal

 1. Similar provisions exist in other Acts. Food Act 1984, s. 36; Liquor Control Reform Act 1998,
ss. 91-92.		  
2. Local government may regulate this. Local Government Act 1989,
Schedule 1.
21. Disturbing religious worship

(1) Any person who wilfully and without lawful justification or excuse, the proof of which lies on him, disquiets or disturbs any meeting of persons lawfully assembled for religious worship or assaults any person lawfully officiating at any such meeting or any of the persons there assembled shall be guilty of an offence.

Penalty: 15 penalty units or imprisonment for three months.

(2) A prosecution for an offence against this section shall be commenced within three months after the offence is committed.

Repeal

 1. Similar provisions already exist in this Act. The proposed new section 17(1) of this Act covers offensive, obscene or threatening conduct; and s. 9(1) covers trespass.  
2 Assaults are covered by similar provisions in this and other Acts. Summary Offences Act 1966, s. 23; Crimes Act 1958, ss. 16-18.
22. Entry of police

(1) A member of the police force may at any time enter into any house building room premises or place which is a public place within the meaning of that interpretation in section 3, notwithstanding that the place be upon private premises, when and so often as he thinks proper for securing the observance of this Act and no such entry shall in any way be deemed a trespass.

Retain

 1. The Committee believes this is an appropriate power to enable the enforcement of the provisions in this Act.   On 18 April 2001 the Premier issued a reference to the Parliamentary Law Reform Committee, to examine powers to enter and search vehicles and premises and seize any thing. The Committee is due to report on the first day of the Autumn 2002 sittings. This report should provide a holistic view of powers to search.

The committee considers that s22 should be retained, pending the report of the Law Reform Committee.

(2) Any person who needlessly delays to admit a member of the police force, whether by day or night, into any house building room premises or place which is a public place as aforesaid shall be guilty of an offence.

Penalty: 1 penalty unit.

Retain

      
23. Common assault

Any person who unlawfully assaults or beats another person shall be guilty of an offence.

Penalty: 15 penalty units or imprisonment for three months.

Retain

 1. The provision is a useful offence for lower level assault. Crimes Act 1958, ss. 16-18. The Committee received a range of views on the question of increasing the penalty. These submissions revealed a fair level of support for a moderate increase in penalty, to accommodate those cases that were previously charged under s24. It was apparent that many submissions supported a repeal of s24 on the basis that the penalty in 23 was not increased significantly . Submissions that considered this issue in detail suggested a new increased maximum penalty from 6 months to 2 years imprisonment.

The Committee believes that consideration should be given to increasing the penalty. In the evidence received by the Committee there was wide agreement that a summary offence of assault should be retained because it provides a less serious charge of assault. Such a charge can be an appropriate alternative to possible indictable offences.

24. Aggravated assault

(1)(a) Where a person is convicted before the Magistrates' Court of an assault or battery upon any male child whose age in the opinion of the court does not exceed fourteen years or upon any female, if in the opinion of the court the assault or battery is of such an aggravated nature that it cannot sufficiently be punished under the last preceding section, the person offending shall be liable on conviction to a penalty of 25 penalty units or to imprisonment for six months and the court may (if it thinks fit in any of the said cases) without any further or other charge adjudge any person convicted to enter into a recognizance and find sureties to keep the peace and be of good behaviour for a term of not more than six months from the expiration of such sentence.

Repeal

 1. Similar provisions already exist in other Acts.

2. The Committee believes assault is a very significant offence and should carry significant penalties. However it has been argued that there is a need to make provision for minor assaults and even behaviour which is intimidating or threatening that is bordering on assault to be heard in the Magistrates Court. As a consequence the Committee is recommending a rationalisation as follows –

(a) Assault be dealt with under the Crimes Act 1958;

(b) That the provision of common assault be maintained in this Act to allow Magistrates’ Courts the opportunity to deal with lower lever assault;

(c) That for conduct bordering on assault but which could be characterised as intimidating or threatening then the re-drafted s. 17(1)(a) offensive or threatening conduct could be applied; and

(d) That the maximum penalty for common assault be increased to allow the Courts more flexibility in sentencing as a consequence of the proposal to repeal this section.

 Crimes Act 1958, ss. 16-18; Summary Offences Act 1966,
s. 23.		 Evidence to the Committee suggested that this section covers a range of cases that are, in effect, aggravating circumstances. Such cases may be charged under s23, and the various circumstances listed in s25 may be used as aggravating factors in a sentence. This approach would be useful in cases where the assault might not be serious, but the status of the victim was an aggravating factor, e.g. a very young or old victim. If the assault itself is more serious, it can be prosecuted on indictment under the relevant provisions of the Crimes Act 1958.
(1)(b) In default of compliance with any such order to enter into a recognizance and find sureties the court may order a defendant to be imprisoned until he complies with the order:

Provided that no person shall be imprisoned for non-compliance with any such order for a longer period than twelve months.

Repeal

      
(2) Any person who in company with any other person or persons assaults another person shall be liable to imprisonment for twelve months and any person who by kicking or with any weapon or instrument whatsoever assaults another person shall be liable to imprisonment for two years.

Repeal

 1. Similar provisions already exist in this and another Act.

2. See reasons in s.24(1)(a) above.

 Summary Offences Act 1966,
s. 23; Crimes Act 1958, ss. 16-18.		  
25. Conviction or dismissal a bar to criminal proceedings

If any person against whom a charge for an offence against section 23 or section 24 has been filed has been convicted and has paid the whole amount adjudged to be paid or has suffered the imprisonment awarded in lieu thereof or for non-payment thereof or if the charge against that person has been dismissed in every such case he shall be released from all further or other criminal proceedings for the same cause; but any person so convicted shall remain liable to all civil proceedings in like manner as if he had not been so convicted.

Repeal

 Section 51 of the Interpretation of Legislation 1984 provides that an offender is not liable to be punished more than once for the same act or omission. This provision is of general application. It is bolstered by the common law rules of double jeopardy and the inherent power of courts to permanently stay a proceeding that if it is an abuse of process. For these reasons the Committee considers that this provision is redundant and should be repealed. Magistrates' Court Act 1989.  
26. Unexplained possession of personal property reasonably suspected to be stolen

(1) Any person having in his actual possession or conveying in any manner any personal property whatsoever reasonably suspected of being stolen or unlawfully obtained whether in or outside Victoria may be arrested either with or without warrant and brought before a bail justice or the Magistrates' Court, or may be summoned to appear before the Magistrates' Court.

(2) If such person does not in the opinion of the court give a satisfactory account as to how he came by such property he shall be guilty of an offence.

Penalty: Imprisonment for one year.

(3) Upon proof that any property was or had been in the actual possession of such person or under his control and whether or not such person still has possession or control thereof when brought before the court the property shall for the purposes of this section be deemed to be in his actual possession.

(4) Where a person is charged before the Magistrates' Court with an offence under this section the court may proceed to hear and determine the matter notwithstanding that it appears from the evidence that the person charged stole or unlawfully obtained the property concerned in a place outside Victoria in circumstances amounting to the commission of a criminal offence in that place.

Retain

 The Committee noted the reverse onus of proof implications in this section but considered the existing provisions were appropriate in the circumstances.

In forming this view the Committee took significant evidence, which highlighted the following issues. The reverse onus is regarded by some stakeholders to be contrary to normal principles of criminal law. It can also present special problems to young or low income people or people who are less likely to retain documents that could be used to prove that any property in their possession was purchased lawfully. The advantage of the reverse onus is that it provides a sensible and convenient means to resolve cases in which property is suspected of being stolen. Some evidence suggested that the reverse onus is appropriate because it is invoked after the formation of a reasonable suspicion that property is stolen. In such circumstances it is not unreasonable to require a person to provide an account for their possession of the property. Several parties noted that this procedure was useful where police found a treasure trove of obviously stolen goods because it removed the need to prove that each single piece of property was stolen.

The Committee received significant evidence that the existing requirement that a person charged under the section is required to provide a ‘satisfactory account’. Many submissions suggested that the requirement was vague and not adopted in other provisions governing forfeiture and the like. They also suggested that it was undesirable that the requirement of this nature be accompanied by a possible sentence of imprisonment.

  The Discussion Paper suggested that consideration may be given to addressing the criticism that this section reverses the onus of proof by redrafting this section to allow the existence of an honest and reasonable belief to be used as a defence.
27. Search warrant for skins of cattle, goods from wreck etc.

(1) If a magistrate is satisfied, by evidence on oath or by affidavit, that there is reasonable cause to suspect that any of the following articles, namely–

(a) the skin or carcass or any part of the skin or carcass of any cattle;

(b) any goods merchandise or article reasonably believed to have been taken or to have come from a ship or vessel in distress or wrecked stranded or cast on shore–

has been stolen or unlawfully taken or obtained and is to be found in a house or other place the magistrate may issue a warrant to search the house or place for the articles and to bring before the Magistrates' Court all such articles found therein and to bring before a bail justice or the Magistrates' Court, or summon to appear before the Magistrates' Court, any person in whose possession or on whose premises those articles are so found.

(2) Whenever a member of the police force finds any such articles on the premises or in the possession of any person or persons and has reasonable cause to suspect that any of such articles has been stolen or unlawfully taken or obtained he may bring all such articles before the Magistrates' Court and also may summon such a person to appear before the Magistrates' Court or arrest such a person and bring him or her before a bail justice or the Magistrates' Court.

Repeal

 1. Similar provisions already exist in other Acts. Crimes Act 1958, ss. 92 and 465; Summary Offences Act 1966, s. 26.  
(3) Any person on whose premises or in whose possession any such article is so found who, after proof of the matters referred to in sub-section (1) or sub-section (2) of this section, does not satisfy the court before which he is brought or appears that he came lawfully by the article or that the article was on his premises without his knowledge or assent shall be guilty of an offence.

Penalty: 25 penalty units or imprisonment for six months.

Repeal

      
28. Recovery of possession of stolen cattle

(1) A person claiming to be entitled to the possession of cattle which–

(a) have been reported to the police as having been stolen not more than 12 months before the application; and

(b) are in the possession or under the control of another person–

may apply to the Magistrates' Court for an order for delivery of the cattle.

Repeal and re-enact (1) in this Act.

 The Committee believes that s28(1) should be retained because it may perform a useful function. The Committee has concluded that the provision should be retained in the Summary Offences Act because there appears to be no other more appropriate alternative Act. Magistrates' Court Act 1989,
s. 78.		 The Committee arrived at this position notwithstanding the Legal & Constitutional Committee, 45th Report - Law Relating to Stolen Goods (Livestock), March 1991 consulted with all Magistrates sitting in rural courts in Victoria. It concluded that –"while s. 28 is potentially a most useful remedy to livestock owners, nevertheless, it is not and has not been utilised for a very long time." (p. 12).
(2) An application–

(a) may be made without notice to any other person; and

(b) must be supported by evidence on oath or by affidavit.

(3) If satisfied that the applicant may be entitled to possession of the cattle, the Court constituted by a registrar may make an order directing the person who has possession or control of the cattle–

(a) to deliver them to the applicant; and

(b) to refrain from disposing of them except in accordance with paragraph (a) pending any further hearing of the application.

(4) An order under sub-section (3) must be served on the person to whom it is directed within 7 days after the making of the order.

(5) Subject to this section, an order under sub-section (3)(a) takes effect 7 days after service and an order under sub-section (3)(b) takes effect on service.

(6) If within 7 days after service of an order under sub-section (3) the person to whom the order is directed lodges an objection with the Court–

(a) the order under sub-section (3)(a) lapses and is of no effect; and

(b) the application under sub-section (1) must be referred to the Court constituted by a magistrate.

(7) The Court may extend or abridge the time fixed by sub-sections (4), (5) and (6) or by an order fixing, extending or abridging time.

(8) The Court may extend time under sub-section (7) before or after the time expires whether or not an application for the extension is made before the time expires.

(9) If it seems to the Court hearing a referral under sub-section (6) that all or any of the cattle were stolen not more than 12 months before the application under sub-section (1), the Court may–

(a) determine who owns the stolen cattle; and

(b) order possession of the stolen cattle to be given to the owner; and

(c) if necessary, issue a warrant in the form prescribed by rules of the Court directed to a member of the police force authorising the member forthwith to seize the stolen cattle and to deliver them to the owner; and

(d) subject to sub-section (12), make any order as to costs that the Court thinks fit.

(10) If the Court is not so satisfied, it must dismiss the application.

(11) The Court may make any order that it thinks fit with respect to the delivery, preservation or care of the cattle pending the determination of an application under this section.

(12) The person from whom the cattle are seized in accordance with a warrant issued under sub-section (9)(c) must pay all lawful costs of executing the warrant.

(13) An application under this section is civil in nature.

(14) The Magistrates' Court has jurisdiction to determine an application under this section irrespective of the value of the cattle.

 Repeal Sub-sections (2)-(14) are more procedural in nature and should be located in more appropriate legislation, such as the Magistrates’ Court Rules.   
29. Recovery of price paid for stolen cattle

(1) Any person from whom or from whose possession cattle are taken or detained under an order or warrant under the last preceding section may recover from his vendor the amount paid by him as the purchase money of the cattle.

Repeal

 1. These sections do not create an offence, but set out procedures for restitution and compensation.    
2 Similar provisions already exist in another Act.

3 These sections could be placed in a more appropriate Act.

 Sentencing Act 1991, s. 84. 86.

Magistrates Court Act 1989.
(2) Any vendor of such cattle who may repay or is compelled to repay the purchase money he has received for such cattle may in like manner recover back from his vendor the amount he has paid such last-mentioned vendor as the purchase money of the cattle.

Repeal

 1. More appropriately dealt with by the Sentencing Act 1991. Sentencing Act 1991, s. 84.  
(3) Upon complaint on oath made by any person or vendor as aforesaid or any person on his behalf–

(a) that such person or vendor has paid for the cattle and that the cattle have been taken from him; or

(b) that he has paid or been compelled to repay the amount he received–

a magistrate may summon the party who sold the cattle to such last-mentioned person or vendor to appear before the Magistrates' Court or may issue a warrant to arrest the party.

(4) Upon the appearance of such party or upon proof of the due service of a summons the Magistrates' Court–

(a) may examine the parties or either of them and their respective witnesses (if any) upon oath touching the purchase and payment of the amount of the purchase money for such cattle and the restitution of the cattle purchased or the repayment of the sum received; and

(b) may make such order for the repayment of that amount with the costs incurred in the recovery thereof as to the court appears reasonable:

Repeal

 1. These sections could be placed in a more appropriate Act. Magistrates Court Act 1989.  
Provided that the execution of the order shall be stayed for such time as the court may order if the person from whom or from whose possession the cattle have been taken or on whom such order for payment is made forthwith enters into a bond to the complainant with two sufficient sureties in such amount as the court thinks reasonable conditioned to prosecute to conviction within the time aforesaid the person guilty of having stolen the cattle; and a conviction within the time aforesaid shall supersede the order so made by the court as aforesaid, and no subsequent proceedings shall be had thereon:

Provided further that the court on the application of such party and on notice to the complainant may extend the time aforesaid.

(5) Subject to the provisions of the Auction Sales Act 1958 the term "vendor" in this section includes the auctioneer or other agent of the vendor as well as the vendor himself.

 Repeal      
30. Possession of skin or carcass of stolen cattle

(1) If the skin or carcass or any part of the skin or carcass of any cattle stolen from any person is found in the possession of any other person or on the premises of any other person with his knowledge and that other person being taken or summoned before the Magistrates' Court does not satisfy the court that he came lawfully by such skin carcass or part thereof respectively shall be guilty of an offence.

Penalty: 50 penalty units or imprisonment for one year.

Repeal     The possession of stolen cattle skins or carcasses may be remedied by s26, which provides a general offence against unexplained possession of stolen property. The Committee considers that there is no reason to retain a separate specific provision governing stolen cattle skins or carcasses.
(2) If the skin or carcass or any part of the skin or carcass of any cattle is found in the possession of any person or on the premises of any person with his knowledge and such person being summoned before the Magistrates' Court does not satisfy the court that he came lawfully by that skin or carcass or part thereof he shall be guilty of an offence.

Penalty: 25 penalty units or imprisonment for six months.

Repeal

 1. Similar provisions already exist in this and other Acts. Summary Offences Act 1966,
s. 26; Crimes Act 1958,
ss. 72 and 88(1).		 The reasons provided for the repeal of sub-section (1) apply to the repeal of this sub-section.
(3) An inspector may demand the skins of any cattle whatsoever that have been or that appear from the record book required to be kept by or under the Health Act 1958 at a meat processing facility licensed under the Meat Industry Act 1993 to have been slaughtered within one month previously to the date of such demand or a full and satisfactory account showing to whom any such skin has been sold or in what manner disposed of, and every person who upon such demand refuses or neglects to produce such skin or in the case the skin cannot be produced to give a full and satisfactory account of how and in what manner the skin has been disposed of shall be guilty of an offence.

Penalty: 5 penalty units.

 Repeal     The reasons provided for the repeal of sub-section (1) apply to the repeal of this sub-section.
(4) Any person who destroys the skin of any cattle or cuts out burns or otherwise destroys or defaces a brand which has been upon such skin and any person who is in possession of any skin from which a brand has been cut or burnt or otherwise destroyed or defaced without being able to give a satisfactory account thereof shall be guilty of an offence.

Penalty: 5 penalty units.

(5) Any person purchasing a raw hide or skin from which a brand has been cut or burnt out or destroyed or otherwise defaced shall be guilty of an offence.

Penalty: 5 penalty units.

Repeal

      
(6) Any inspector or member of the police force may at any time of the day or night enter any meat processing facility licensed under the Meat Industry Act 1993 or any other place or premises whatsoever at which there is good cause to suspect that stolen cattle have been slaughtered or are intended to be slaughtered and may make such search and inquiry therein as is necessary for the discovery of the offence and of the offender.

Repeal

 1. Similar provisions already exist in this and other Acts. Summary Offences Act 1966, s.26; Crimes Act 1958, s. 465(1); Magistrates' Court Act 1989, s. 78(1).  
(7) Any person who obstructs or hinders any inspector or member of the police force so as to prevent him from or delay him in entering a meat processing facility licensed under the Meat Industry Act 1993 or any other house place or premises for the purpose of examining any cattle or skins of cattle shall be guilty of an offence.

Penalty: 5 penalty units.

Repeal

 1. Section 30(7) is a surplus provision. Summary Offences Act 1966,
s. 52(1).		  
(8) If any person convicted under this section holds a licence or registration under any Act or any local law or regulation the licence or registration may, if the Magistrates' Court thinks fit, be cancelled or suspended and thereupon such person or premises shall be deemed to be unlicensed or unregistered (as the case may be).

Repeal

 The Committee believes that if a licence is to be removed, it can and should be done by the Authority by whom it was issued. This may be achieved by exercise of the power under which the licence was issued.    
(9) Every fine penalty or forfeiture accruing under this section within a municipal council shall be paid to the council of that district for the public uses thereof:

Provided that all moneys arising from fines penalties and forfeitures imposed under this section and recovered by an employee or inspector in the Department of Human Services shall form part of the Consolidated Fund.

(10) In this section "inspector" includes any inspector or acting or assistant inspector of the Department of Human Services or any environmental health officer of a council.

Repeal

 The Committee considers that it is not necessary to retain separate provisions governing fines.    
31. Possession of property from wrecks

If any goods merchandise or articles belonging to a ship or vessel in distress or wrecked stranded or cast on shore are found in the possession of any person or on the premises of any person with his knowledge and such person being taken or summoned before the Magistrates' Court does not satisfy the court that he came lawfully by the same such person shall be liable to a penalty over and above the value of the goods merchandise or articles of not more than 25 penalty units or to imprisonment for a term of not more than six months.

Repeal

 1. Similar provisions exist in this and other Acts. The Heritage Act extends to ‘the protection and conservation of places and objects of cultural heritage significance and the registration of such places and objects’. The Act does not protect all wrecks, only historic shipwrecks as defined by s. 3.

2. Place offence in a more Appropriate Act.

 Summary Offences Act 1966, s.26(1); Crimes Act 1958, s. 88(1), ss. 72-74.

Heritage Act 1995, Part 5.

 .
32. Offering property from wrecks for sale

(1) Any person who offers or exposes for sale any goods merchandise or articles which have been unlawfully taken or obtained or are reasonably suspected to have been unlawfully taken or obtained from a ship or vessel in distress or wrecked stranded or cast on shore, and who being summoned to appear before the Magistrates' Court does not appear and satisfy the court that he came lawfully by the same shall pay such sum as the court fixes as a reasonable reward to the person (if any) who has seized the same, and shall also be liable to a penalty over and above the value of the goods merchandise or articles of not more than 25 penalty units or to be imprisoned for a term of not more than six months.

(2) In every such case any person to whom any such goods merchandise or articles are offered for sale or any member of the police force may seize the same and shall with all convenient speed cause the same to be removed to, or notice of such seizure to be given to, the Magistrates' Court.

Retain

 1. Similar provisions exist in this and other Acts Summary Offences Act, s.26(1); Crimes Act 1958, s. 88(1), ss. 72-74; Heritage Act 1995.  
33. Examination of persons through whose hands property has passed

(1) In any proceedings under any of the provisions of sections 26 to 32 (both inclusive) in which any person is required–

(a) to give a satisfactory account as to how he came by any property;

(b) to satisfy the court that he lawfully came by any property; or

Retain, with some amendment.

 1. Already covered in other legislation.

2. These are procedural matters dealing with the collection of evidence which do not necessarily need to be codified. Sub-sections (1) and (2) are designed to assist the reverse onus of proof contained in ss. 26-32. Such matters are best left to the common law and the rules of procedure in the Courts.

   The Committee has recommended that ss. 27, 28(2)-(14), 29-32 be repealed. These recommendations, if acted upon, would require consequential amendment to s.33 because this section refers to those sections which are proposed to be repealed.
(c) to satisfy the court that any property was on his premises without his knowledge or assent–

if on the hearing of the charge–

(i) the defendant declares that he received the property from any other person; or

(ii) it appears to the court that the property has passed through the hands or possession of any other person or has been in the possession of any other person or on his premises with his knowledge or assent–

the court may in its discretion by warrant or summons cause every such other person to be brought before it to give an account of the property

(2) If it appears by the admission of any person so brought before the Magistrates' Court or by proof on oath–

(a) that such last-mentioned person had possession of the property; or

(b) that the property was on his premises–

and if such person–

(i) does not give a satisfactory account as to how he came by the property; or

(ii) does not satisfy the court that he lawfully came by the property or that the property was on his premises without his knowledge or assent–

he shall be liable to the punishment specified in the sections respectively under which the proceedings are taken.

Repeal

      
(3) If a person has been convicted of an offence under any of the provisions of sections 26 to 32 in relation to any property, the informant, the Director of Public Prosecutions or any person who claims an interest in the property may, at the time the conviction is made or at any later time, apply to the Magistrates' Court for an order in relation to the property.

(4) The Magistrates' Court may, on an application under sub-section (3), make such orders in relation to the property to which the application relates as it considers just.

(5) Examples of the kind of order that the Magistrates' Court may make under sub-section (4) are:

(a) If the property is not money, an order that the property be sold;

(b) An order that the property, if money or converted into money, be paid into the Consolidated Fund;

(c) An order declaring the nature, extent and value (as at the time of making the order) of the interest of a person specified in the order in the property and directing that the whole or any part of the property (including money into which the property has been converted) be transferred to that person;

Repeal

 1. This section should be placed in a more appropriate Act. Magistrates Court Act 1989. The Discussion Paper of May 2001 proposed that all of s33 be repealed. The Committee notes that the recovery procedure contained in sub-sections (3)-(8) operates in a separate manner from sub-section (1) and (2). The Committee considers that the procedure in sub-sections (3)-(8) assists the administration of ss26-32. The Committee has recommended that s26 be retained and that s28(1) be re-enacted. The Committee considers that if these recommendations are adopted, s33(3)-(8) should be retained. It also considers that the sub-sections should remain in the Summary Offences Act because it is appropriate that the recovery provisions should be retained in the same Act as the principal provisions to which they related.
(d) An order directing that a person specified in the order retain the whole or any part of the property (including money into which the property has been converted) for a period specified in the order.

(6) The applicant for an order under sub-section (4) must give notice of the application in the manner prescribed by rules of court to each other person whom the applicant has reason to believe could have applied for the order.

(7) The Magistrates' Court may, at any time before the final determination of an application under sub-section (3), direct the applicant to give or publish notice of the application to such persons, in such manner and within such time as the Court thinks fit.

(8) The Magistrates' Court has power to give all directions that are necessary to give effect to an order made by it under sub-section (4).

Repeal

      
34. Retaining or disposing of property as workmen etc.

(1) Any artificer workman journeyman apprentice or other person who unlawfully disposes of or retains in his possession without the consent of the person by whom he is hired retained or employed any goods wares work or materials committed to his care or charge (the value of such goods wares work or materials being not more than $100) or any person who receives any of the same knowing them to have been stolen or unlawfully obtained shall be guilty of an offence.

Penalty: For a first offence – 5 penalty units or imprisonment for three months;

For a second or subsequent offence – 10 penalty units or imprisonment for six months.

Repeal

 1. A similar provision already exists in another Act. Crimes Act 1958, ss. 72-74 and 81(1).  
(2) If any person to whom any property is offered to be sold pawned or delivered has reasonable cause to suspect that an offence referred to in the last preceding sub-section has been committed in respect of the property, he may arrest without a warrant and with all convenient speed take before a bail justice or the Magistrates' Court the person offering the property together with the property to be dealt with according to law; and in every such case the stolen property shall by order of the court by which the case is heard and determined be delivered over to the rightful owner, if known, or if the rightful owner is not known shall be sold and the proceeds of the sale shall be paid into and form part of the Consolidated Fund.

Repeal

 1. Similar provisions already exist in other Acts. Crimes Act 1958, s. 458; Second-Hand Dealers and Pawnbrokers Act 1989, s. 22. The submission of the Department of Justice, which administers legislation governing second-hand dealers accepted that such legislation provided a sufficient form of regulation for second-hand dealers. The Committee considers that s34(2) does not perform a significant additional function concerning this activity that warrants its retention.
37. Obtaining goods etc. by valueless cheque

(1) Any person who obtains any chattel money valuable security credit benefit or advantage by passing a cheque which is not paid on presentation shall be guilty of an offence.

Penalty: 25 penalty units or imprisonment for one year.

Repeal and
re-enact

 1. The Committee considers it appropriate to retain a summary offence for this type of behaviour. However this section should be re-drafted to extend beyond cheques to include other personal financial instruments.

2. The Committee considers this section should be maintained in this Act to cover less serious cases, as the Crimes Act 1958, ss.81 and 82 adequately cover more serious offences where deception is involved.

 Crimes Act 1958, ss. 81 and 82 This recommendation attracted significant unfavourable comment, because of the belief that the section appeared to feature in prosecutions against financially disadvantaged people. Several submissions suggested that the section was invoked in cases that did not involve criminal behaviour but rather misfortune experienced by people who had low incomes. Accordingly, it was suggested that the section had an unfair impact against such people. The Committee believes that a summary offence of this nature should remain because it provides a less serious alternative to possible indictable offences.
(2) It shall be a defence to a charge for an offence against sub-section (1) of this section to prove that the defendant–

(a) had reasonable grounds for believing that the cheque would be paid in full on presentation; and

(b) had no intent to defraud.

Retain

     The recommendation for this sub-section follows that for subsection (1).
(3) The fact that at the time when the cheque was passed there were some funds to the credit of the account on which the cheque was drawn shall not of itself be a defence.

(4) No proceedings shall be brought against any person for an offence against this section except with the consent of the Director of Public Prosecutions.

Retain

      

Division 3 – Illegal Taking or Using of Vehicles

Summary Offences Act 1966

Proposals

Reasons for Proposal

Other/Proposed Legislation

Comments
38. Taking or using vehicle without consent of owner etc

(1) Any person who takes or in any manner uses a vehicle (including a bicycle but not including a motor vehicle within the meaning of the Road Safety Act 1986) or a boat ship or other vessel the property of any other person without the consent of the owner or person in lawful possession thereof shall be guilty of an offence.

Penalty: 15 penalty units or imprisonment for three months.

(2) Nothing in this section shall affect any other liability civil or criminal of any person guilty of an offence against this section.

Retain

 The Committee considers that this provision creates a less serious offence for car stealing, that is suitable for offences of a lesser level of culpability. The Committee considers that this offence should be retained because it provides a separate, less serious alternative charge to some forms of theft. As such it allows less serious cases to be prosecuted summarily, but does not prevent the prosecution more serious cases by charges under the Crimes Act.   The Discussion Paper proposed that this section be repealed because conduct of this nature could be prosecuted under the Crimes Act 1958, ss73(11) and 74. This proposal attracted a significant amount of evidence which led the Committee to believe that the section should be retained. Some submissions suggested that cases that are normally charged under this section are not theft in the normal understanding of the term, e.g. young people who take a care from their parents or an employer, clearly without permission but intending to bring it back. Such examples do not involve the element of ‘dishonesty’ required by the Crimes Act but may, in appropriate cases, nonetheless warrant sanction.

Division 4 – Advertising of Live Sexually-Explicit Entertainment

Summary Offences Act 1966

Proposals

Reasons for Proposal

Other/Proposed Legislation

Comments
39. Advertising regulations

(1) The Governor in Council may make regulations for or with respect to–

(a) the size, form and content of advertisements for live sexually-explicit entertainment;

(b) prohibiting the advertising–

(i) in a specified publication or specified class of publication; or

(ii) in a specified manner–

of advertisements for live sexually-explicit entertainment;

(c) generally regulating the publication of advertisements for live sexually-explicit entertainment.

(2) A power conferred by sub-section (1) to make regulations may be exercised–

(a) either in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified case or class of case; and

(b) so as to make, as respects the cases in relation to which the power is exercised–

(i) the same provision for all cases in relation to which the power is exercised, or different provisions for different cases or classes of case, or different provisions for the same case or class of case for different purposes; or

(ii) any such provision either unconditionally or subject to any specified condition.

(3) Regulations made under sub-section (1) may be made–

(a) so as to apply–

(i) at all times or at a specified time; or

(ii) throughout the whole of the State or in a specified part of the State; or

(iii) as specified in both sub-paragraphs (i) and (ii); and

(b) so as to require a matter affected by the regulations to be –

(i) in accordance with a specified standard or specified requirement; or

(ii) approved by or to the satisfaction of a specified person or a specified class of person; or

(iii) as specified in both sub-paragraphs (i) and (ii); and

(c) so as to apply, adopt or incorporate any matter contained in any document whatsoever whether –

(i) wholly or partially or as amended by the regulations; or

(ii) as in force at the time the regulations are made or at any time before then; and

(d) so as to confer a discretionary authority or impose a duty on a specified person or a specified class of person; and

(e) so as to provide in a specified case or class of case for the exemption of persons or things or a class of persons or things from any of the provisions of the regulations, whether unconditionally or on specified conditions and either wholly or to such an extent as is specified; and

(f) so as to impose a penalty not exceeding 20 penalty units for a contravention of the regulations.

Retain

 This section is essentially an enabling provision because it grants power to make regulations on advertising sexually explicit entertainment. The provision does not itself impose any restrictions or regulations on this activity. The Committee notes that no regulations have been made and that failure questions whether the provision is redundant. The Committee suggests that this conclusion provides an occasion to consider whether to promulgate regulations under the section. There seems, however, seems to be no more appropriate Act in which a power of this nature could be located.    

Division 5 – Tattooing of Juveniles

Summary Offences Act 1966

Proposals

Reasons for Proposal

Other/Proposed Legislation

Comments
42. Tattooing of juveniles

(1) Any person who performs any tattooing or like process on any person under the age of eighteen years shall be guilty of an offence.

Penalty: 5 penalty units.

Retain

 The Committee believes that although this provision appears ineffective and is in fact not appropriate to be in the Summary Offences Act it should be maintained pending a much wider review of tattooing and the related, and now more prevalent, activity of body piercing. The Discussion Paper proposed that this provision be repealed. Evidence to the Committee in response to this proposal highlighted two key issues. First, this provision should be extended to the not dissimilar and now more prevalent activity of body piercing. Secondly, issues relating to parental consent and the health and safety of these procedures need to be dealt with under appropriate guidelines and procedures.
(2) Nothing in this Division shall apply to any tattooing or other like process performed by or at the written request of a registered medical practitioner within the meaning of the Medical Practice Act 1994.

This provision should be retained for the reasons provided for sub-section (1).

Division 7 – Homing Pigeons

Summary Offences Act 1966

Proposals

Reasons for Proposal

Other/Proposed Legislation

Comments
45. Definition

In this Division "homing pigeon" means a pigeon used as a bearer of messages or as a racing pigeon and which has affixed or attached to either or both legs a metal or other ring.

 Repeal      
46. Destruction of homing pigeons

A person other than the owner shall not shoot kill wound or in any way injure destroy ensnare catch or take a homing pigeon.

Penalty: 1 penalty unit.

 Repeal 1. Similar provisions already exist in other Acts. Prevention of Cruelty to Animals Act 1986, ss. 9 and 10; Crimes Act 1958, s. 197(1).  
47. Compensation.

For the purposes of section 59 of the Sentencing Act 1991 the court may, in assessing the value of a homing pigeon, take into account the racing record (if any) of the pigeon as well as the market value of pigeons of that type.

 Repeal 1. A similar provision already exists in another Act. Sentencing Act 1991, s. 86.  
48. Entering in pursuit of homing pigeons

Any person entering upon enclosed land or premises for the purpose of killing wounding disabling ensnaring taking or in any way injuring or destroying a homing pigeon of which he is not the owner shall be guilty of an offence.

Penalty: 1 penalty unit.

 Repeal 1. Similar provisions already exist in this and other Acts. Summary Offences Act 1966, s.9(1)(d)(e)(f); Crimes Act 1958, s 76.  
49. Existing remedies preserved

Nothing in this Division shall in any way limit or abridge any other civil or criminal proceedings in respect of pigeons.

Repeal

      

PART II – Provisions applicable to special localities

Summary Offences Act 1966

Proposals

Reasons for Proposal

Other/Proposed Legislation

Comments
50. Prohibition of use of certain kinds of matches in specified localities in certain months

(1) The Governor in Council by Order published in the Government Gazette may prohibit in any locality specified in the Order during all or any of the months from November to April (both inclusive) the sale offering for sale distribution or use of any matches other than those so made as to strike only on a preparation affixed to the containing box or to a box containing the same description of matches.

(2) The Governor in Council may in like manner rescind revoke amend or vary any Order under this section.

(3) Any person who sells offers for sale distributes or uses any matches in contravention of an Order under this section shall be guilty of an offence.

Penalty: 1 penalty unit.

(4) Nothing in this section shall apply to matches used or for use in any mine within the meaning of the Mineral Resources Development Act 1990.

Repeal

   The Committee suggests that either the Country Fire Authority Act 1958 or the Metropolitan Fire Brigades Act 1958 would be a suitable Act to include an equivalent provision to s50 because each of those Acts includes other powers concerning the control of fire hazards in specified times/areas. This section is intended to counter fire hazards in high-risk locations. The Committee believes that this risk should be regulated, but the Summary Offences Act is not the most appropriate statute to locate such a provision.
50A. Trespass – land used for primary production

(1) In this section unless inconsistent with the context or subject-matter "primary production" means farming agricultural horticultural viticultural pastoral or grazing operation and without affecting the generality of the foregoing provisions includes dairy farming poultry farming and bee farming operations.

(2) The provisions of this section shall apply only within such districts as are specified by proclamation made under this section

(3) Upon the application of the municipal council the Governor in Council may by proclamation published in the Government Gazette –

(a) declare the municipal district of the municipal council or any part thereof to be a district to which this section applies; and

(c) revoke or vary any such proclamation.

(4) The Governor in Council may by proclamation published in the Government Gazette –

(a) declare an area that is not part of a municipal district to be an area to which this section applies; and

(b) revoke or vary any such proclamation.

(5) Any person who within any district specified by proclamation made under this section and during the fire danger period within the meaning of the Country Fire Authority Act 1958 engages in or enters with the intention of ferreting on any land which is used in connection with primary production without the consent, express or implied, of the occupier of that land or of some person apparently authorized to act on behalf of such occupier shall be guilty of an offence against this section and liable for a first offence to a penalty of not more than 1 penalty unit and for a second or subsequent offence to a penalty of not more than 5 penalty units.

(6) It shall be a defence to a prosecution for an offence against sub-section (5) if the defendant satisfies the court that he did not actually engage in ferreting on that land but was approaching the residence of the occupier of the land along a defined or customary path for the purpose of applying for such consent.

(7) Upon any proceedings for an offence against this section the burden of proving the consent of the occupier of any land concerned or of any person apparently authorized to act on behalf of such occupier shall be upon the person charged.

(8) Nothing in this section shall in any way limit or abridge any other civil or criminal proceeding in relation to any such trespass.

Repeal

 1. As s. 50A(1) - (8) deals with the activity of ferreting on private land during the fire danger period, this is best covered by the general trespass provisions in this Act. Summary offences Act 1966, s.9.  

PART III – Supplementary

Summary Offences Act 1966

Proposals

Reasons for Proposal

Other/Proposed Legislation

Comments
52. Assaulting or resisting constables etc

(1) Any person who assaults resists obstructs hinders or delays or incites or encourages any other person to assault resist obstruct hinder or delay any member of the police force in the execution of his duty under this Act or otherwise, or any person lawfully assisting any such member in the execution of his duty under this Act, or any member of the staff of the local authority in the execution of his duty under this Act shall be guilty of an offence.

Penalty: 25 penalty units or imprisonment for six months.

Retain

 1. The Committee believes this is an appropriate offence to be maintained in this Act.  The recommendation that this provision be retained attracted significant comment. Some submissions suggested that this charge was ‘overused’, as evidenced by the relatively high level of charges that were dismissed/acquitted in the statistics of the discussion paper. The Victoria Police submitted that the charge was an essential tool to their work and the administration of justice.

The Committee notes that behavior which falls within the scope of this provision could often be charged under one or more indictable offences. In many cases, however, a summary proceeding may be the most appropriate course.

(2) In addition to imposing a penalty the court may order and award a sum sufficient to cover any damage which any such member of the police force person or member of staff has sustained by such assault resistance obstruction hindrance or delay, such sum to be recoverable in the same manner as the penalty.

Repeal

 1. These are matters more appropriately left to the discretion of the courts.   The Committee received several submissions in response to the proposal of the Discussion Paper that this provision be repealed. The submissions received from both Victorian Police and the Police Association did not oppose the repeal of this provision.
52(1A) Any person who together with others wilfully and without lawful authority besets any premises, whether public or private, for the purpose and with the effect of obstructing, hindering, or impeding by an assemblage of persons the exercise by any person of any lawful right to enter, use, or leave such premises shall be guilty of an offence.

Penalty: 15 penalty units or imprisonment for three months.

Repeal

 1. Similar provisions already exist under this and other Acts. Summary Offences Act 1966, s. 9(1)(d);
Vagrancy Act 1966,
s. 7(1)(i).		  
52A. Offence to harass witnesses etc

A person must not harass a person because that person has taken part, is about to take part or is taking part in a criminal proceeding in any court as a witness or in any other capacity.

Penalty: 120 penalty units or imprisonment for 12 months.

Retain

 This offence provides a useful means of dealing with less serious offences of this nature. The Committee received many submissions which supported the retention of this clause. Many of those submissions stated that this clause provided noted a useful and effective means of dealing with the less serious instances of harassment that could be dealt with effectively by a summary offence. It was also noted that retention of this provision would not prevent the prosecution of more serious examples of harassment that could be charged under s399B of the Crimes Act   The Discussion Paper recommended that this provision be repealed because offences of this nature could be prosecuted under the Crimes Act 1958. However the evidence revealed that this offence provided a useful means of dealing with relatively minor examples of this type of behaviour.
53. Making false reports to police etc

(1) Any person who falsely and with knowledge of the falsity of the report voluntarily reports or causes to be reported to any member of the police force that an act has been done or an event has occurred, which act or event as so reported is such as calls for an investigation by a member of the police force shall be guilty of an offence.

Penalty: 120 penalty units or imprisonment for 1 year.

(2) For the purposes of sub-section (1)–

(a) "voluntarily", in respect of a report by any person, means –

(i) of that person's own motion and volition; and

(ii) otherwise than in the course of an interrogation made by a member of the police force; and

(b) "causes to be reported" includes creating any circumstances or doing any acts for the purpose of inducing or which induce some other person to report to a member of the police force that an act has been done or event occurred which calls for investigation by a member of the police force.

(3) Where a person is charged before a court of summary jurisdiction with an offence against this section the court shall, as soon as the person is charged and before any evidence has been given in support of the charge, cause the person charged to be informed that he may object to being summarily dealt with and may elect to be tried by a jury.

(4) Where a person charged with an offence against this section is not present before the court upon the hearing the court may, if it thinks fit, adjourn the hearing of the charge with a view of securing the attendance of that person, if practicable, at the hearing of the charge, but nevertheless the court shall have jurisdiction to deal summarily with the case in the absence of the person charged.

(5) If before any evidence is given in support of the charge the person charged objects to the charge being dealt with summarily by the court and elects that he be tried by a jury the court shall hear and inquire into the charge as if it had no jurisdiction finally to determine the matter and may direct the person charged to be tried by a jury as aforesaid or discharge him.

(6) Any person directed to be tried as aforesaid shall notwithstanding any law usage or practice to the contrary be tried upon presentment made as for an indictable offence cognisable by the Supreme Court or the County Court.

(6A) In addition to and without derogating from section 86 of the Sentencing Act 1991, if a court finds a person guilty of, or convicts a person of, an offence against this section, the court may order the person to pay to the informant a reasonable amount for any expenses, including remuneration payable to members of the police force, incurred by the State arising out of or incidental to the commission of the offence.

(6AB) In sub-section (6A) "remuneration", in relation to a person, includes long service leave entitlements, holiday pay, superannuation contributions and any other employment benefits.

(6AC) If a court decides to make an order under sub-section (6A), sub-sections (2), (3), (4), (7), (8) and (9) of section 86 of the Sentencing Act 1991 apply as if –

(a) a reference to an order under sub-section (1) were a reference to an order under sub-section (6A); and

(b) a reference to compensation were a reference to expenses referred to in sub-section (6A).

(6AD) An order under sub-section (6A) must be taken to be a judgment debt due by the offender to the informant and payment of any amount remaining unpaid under the order may be enforced in the court by which it was made.

(6B) Any moneys received by the informant under sub-section (6A) shall be paid by him to the Consolidated Fund.

Retain

     If this provision was repealed, offences of this nature could only be prosecuted by indictment under the Crimes Act 1958.

Submissions to the inquiry revealed strong support for the retention of a summary offence of this type, to deal with less serious instances of making false reports. Many submissions acknowledged that false reports cause problems for the administration of the law, but noted that most cases were relatively minor and did not warrant trial on indictment. Some submissions noted that the people who made false reports were often young and/or vulnerable. Such people can and should be dealt with effectively by s53. It should be noted that retaining s53 does not prevent the use of other provisions for more serious cases of false reporting, e.g. perjury, attempting to pervert the course of justice.

54. Offence by body corporate

Where a body corporate is guilty of an offence against this Act the body corporate shall be liable to the penalties therefor so far as those penalties are capable of being imposed upon a body corporate, and any director manager or officer of the body corporate who knowingly directs authorizes or suffers the commission of the offence by the body corporate shall, without affecting the liability of the body corporate therefor, be severally guilty of an offence and liable to the penalty or punishment applicable thereto.

Retain

 The section extends any liability for an offence committed by a body corporate to its directors and other senior staff in specified circumstances. In effect, if the director has authorised the relevant act, he or she may also be found guilty of the offence. The clause allows for the liability of a company to be attributed to a director in limited cases. It removes the need for a second trial against a company director. This section does not operate unfairly because it requires that the offence is proved against the company and that the director has taken an active role in the offence.    
55. Liability of masters

Where it appears to the court on the hearing of a charge for an offence against this Act that the person committing the offence has acted only under the orders or by the sanction of his master or employer and that the master or employer is in fact the offending party, either solely or as well as the person so offending, the court may by summons or warrant order the master or employer to appear to answer the charge as if it had originally been filed against the master or employer and may either discharge the person first charged or may hear and determine the charge against both as the court thinks fit.

Repeal

     These provisions empower the court to bring an employer before it even if the employer has not been charged. This procedural power can be useful. If this power is required for the operation of the Magistrates’ Court it should be re-enacted in the Magistrates’ Court Act 1989.
56. Informations

(1) Unless otherwise expressly provided any member of the police force or any inspector or other employee in the Department of Human Services or any member of the staff of any municipal council may file a charge for a breach of or an offence against any of the provisions of this Act.

(2) No fee shall be payable on the issue of a summons to answer to a charge for an offence against this Act.

Retain

 The evidence presented to the Committee indicates that this section provides a useful power to assist the administration of the Summary Offences Act which should be retained.    
57. Neglect to prosecute

If a person who has filed a charge in respect of an alleged offence against this Act does not appear at the hearing or declines or neglects to proceed upon or prosecute the charge the court may authorize some other person to proceed upon or prosecute the charge or may authorize any other person to take proceedings.

Repeal

 This clause grants a special procedural power to the Magistrates’ Court. For that reason the Committee considers that this power should be located in the Magistrates’ Court Act 1989.    
58. Accomplice

No member of the police force or person if such member or person is acting under instructions given in writing in relation to a particular case by a member of the police force not below the rank of senior sergeant shall be deemed to be an offender or accomplice in the commission of an offence against this Act although such member or person might, but for this section, have been deemed to be such an offender or accomplice.

Retain

 The Committee recommends the retention of this provision because it provides a necessary and appropriate power for police activity in respect of this Act.    
59. Procedure

Unless otherwise expressly provided all charges for or in respect of offences against this Act shall be heard and determined by the Magistrates' Court.

Retain

      
60. Offences of more serious nature not to be dealt with under this Act

If the Magistrates' Court is of the opinion that an offence against this Act alleged before it does not properly come within the meaning and intention of this Act but that an offence of a more serious or heinous kind has been committed the court may refuse to entertain or to further entertain the charge and may proceed as if the more serious or more heinous offence had been charged in the charge before the court whether the person charged has or has not pleaded thereto.

Retain

 The Committee believes it is necessary and appropriate that the Court retain such a power.   The Discussion Paper proposed that this provision be retained. This proposal attracted considerable evidence and differing views. That evidence revealed two essential views on this provision. Some stakeholders, such as the Department of Justice and the Police agreed with the proposal to retain the section. Others, such as the Criminal Bar Association and the Federation of Community Legal Centres, did not. The representatives of the Magistrates’ Court supported retention of the section.

The Committee has concluded that this section should be retained because it provides the Court with useful procedural flexibility. It also enables the Court to properly discharge its functions, by allowing the court to refuse to entertain a change where it ‘is of the opinion’ that the charge ‘does not properly come within the meaning and intention’ of the Act.

60A. Forfeiture of weapons or instruments

A court that convicts a person of an offence under section 24(2) may order that the weapon or instrument be forfeited to Her Majesty and be sold or destroyed as specified in the order.

Repeal

 The Committee believes that courts should be able to order the forfeiture of weapons held by convicted persons should extend clearly to all possible situations faced by the court. Accordingly, this provision should be retained.   While other provisions exist under the Firearms Act 1996 and the Control of Weapons Act govern guns and other weapons (knives etc) respectively, neither Act appears to cover both sorts of weapons. Section 9 of the Control of Weapons Act 1990 applies only to offences under that Act, and the Act does not apply to firearms. Section 9 does not provide as wide a power to order forfeiture as s60A of the Summary Offences Act. The Firearms Act 1996 is directed to forfeiture of any ‘firearm which is forfeited to the Crown under this Act or any other Act’: s152. The Sentencing Act 1991 does not include a general power to order forfeiture.
61. Proceeds of sale of forfeited property to be paid to Consolidated Fund

The proceeds of the sale of any property forfeited to Her Majesty under the provisions of this Act shall be paid into and form part of the Consolidated Fund.

Repeal

 1. A similar provision already exists in another Act. Magistrates' Court Act 1989, s. 137(1);
Confiscation Act 1997, Part 3.
Section 59 of the Sentencing Act 1991 may also be relied upon. 		The alternative sections listed in the discussion paper grant the Magistrates’ Court an equivalent power to s61 of the Summary Offences Act. The Committee notes that it is possible for the Supreme or County Courts to hear summary offences. In such cases those courts may invoke s137(1) of the Magistrates’ Court Act 1989 by virtue of s359AA(3)(e) of the Crimes Act 1958. That provision allows the Supreme or County Court which convicts a person of a relevant summary offence to make such orders in relation to the conviction as might be made by the Magistrates’ Court.
62. Transitional provisions

(1) If on the commencement of section 55 of the Law and Justice Legislation Amendment Act 1997, section 57 of the Children's Services Act 1996 is not in operation, Schedule 1 to this Act has effect, until that section comes into operation, as if item 2 of that Schedule referred to a children's service centre within the meaning of Part XIA of the Health Act 1958 that directly receives any financial assistance from the State.

(2) Section 53 as amended by section 5 of the Summary Offences (Amendment) Act 1998 applies only to offences committed after the commencement of that Act

Repealed

      

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