Click to go directly to section

[2] [4] [6] [7] [8] [9] [13] [15] [16] [17] [18] [19] [20] [22] [23] [24]

Vagrancy Act 1966

Proposals

Reasons for Proposal

Other/Proposed Legislation

Comments

2. Repeal

(1) Part III of the Police Offences Act 1958 and section 45 of the Children’s Court Act 1958 are hereby repealed.

(2) Except as in this Act expressly or by necessary implication provided—

(a) all persons things and circumstances appointed or created by or under the repealed provisions or existing or continuing under the repealed provisions immediately before the commencement of this Act shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if the said provisions had not been repealed; and

Repeal

These provisions are no longer needed because of the passage of time.

(b) in particular and without affecting the generality of the foregoing paragraph such repeal shall not disturb the continuity of status operation or effect of any order information warrant commitment liability limitation saving or right made laid issued accrued incurred or acquired or existing or continuing by or under the said provisions before the commencement of this Act.

(3) Any reference in any other Act to any of the provisions of Part 3 of the Police Offences Act 1958 shall be deemed to be a reference to the corresponding provisions of this Act.

Repeal

This provision will not be necessary if the Vagrancy Act 1966 is repealed.

Where the Committee has recommended that a provision of the Vagrancy Act 1966 should be retained through re-enactment in another Act, a new reference provision similar to s. 2(3) may need to be enacted in the relevant Act.

4. Definitions

In this Act unless inconsistent with the context or subject-matter—

“court” means the Magistrates’ Court;

“public place” includes and applies to—

(a) any public highway road street bridge footway footpath court alley passage or thoroughfare notwithstanding that it may be formed on private property;

(b) any park garden reserve or other place of public recreation or resort;

(c) any railway station platform or carriage;

(d) any wharf pier or jetty;

(e) any passenger ship or boat plying for hire;

(f) any public vehicle plying for hire;

(g) any church or chapel open to the public or any other building where divine service is being publicly held;

(h) any State school or the land or premises used in connection therewith;

(i) any public hall theatre or room while members of the public are in attendance at, or are assembling for or departing from, any public entertainment or meeting therein;

Repeal

This provision will not be necessary if the Vagrancy Act 1966 is repealed.

Where a provision of the Vagrancy Act 1966 has been retained through re-enactment in another Act, then any relevant definitions may also need to be retained through re-enactment in that Act.

(j) any market;

(k) any auction room or mart or place while a sale by auction is there proceeding;

(l) any licensed premises or authorised premises within the meaning of the Liquor Control Act 1987;

(m) any race-course cricket ground football ground or other such place while members of the public are present or are permitted to have access thereto whether with or without payment for admission;

(n) any place of public resort;

(o) any open place to which the public whether upon or without payment for admittance have or are permitted to have access; and

(p) any public place within the meaning of the words “public place” whether by virtue of this Act or otherwise.

Repeal

6. Consorting and like offences

(1) Any person who—

(a) is the occupier of a house or place that is frequented by reputed thieves;

(b) is found in a house or place in company with reputed thieves who, on being thereto required by the court, does not give to the satisfaction of the court a good account of his being in such house or place upon some lawful occasion;

(c) habitually consorts with reputed thieves unless such person, on being thereto required by the court, gives to the satisfaction of the court a good account of his so consorting;

Repeal

The Committee believes that these provisions are no longer appropriate because:

1. There are other provisions that provide a basis for dealing with conduct of this nature, such as section 7(1)(f) which proscribes ‘loitering with intent to commit an indictable offence’;

2. The consorting provisions are under-utilised;

3. The consorting provisions confer an undesirably wide discretion to charge individuals in the absence of a substantive offence;

4. The offence of consorting is predicated on guilt by association, a principle at odds with contemporary standards of justice;

5. The consorting provisions apply a reverse onus of proof in breach of modern legislative practice and the right to remain silent.

The Committee received a large number of written submissions and heard a substantial amount of evidence in relation to the consorting provisions. Aspects of this evidence, and the Committee’s deliberations and recommendations in relation to it, are discussed in more detail on pages 11 to 14 of this Report.

(d) begs or gathers alms or causes or procures or encourages a child to beg or gather alms;

1 Repeal

2. Re-enact in amended form in the Summary Offence Act 1966 (in relation to begging by adults)

1. With respect to offences relating to child begging, the Committee considers that this is covered by a suitable provision in another Act.

2. Additional research is required on the issue of begging.

3. Pending the conduct of further research, begging by adults should continue to be a summary offence.

In relation to child begging, see Community Services Act 1970, s.78(a).

Summary Offences Act 1966.

After reviewing the many responses to the proposal to decriminalise begging contained in its Discussion Paper of April 2002, the Committee has decided against recommending this course.

Although the Committee is cognisant of the arguments in favour of the decriminalisation of begging, the complexity of the issues involved and the lack of research conducted in relation to begging in Victoria have led the Committee to conclude that it does not have sufficient evidence before it to make a properly informed recommendation in relation to the decriminalisation of begging.

The Committee received a large number of written submissions and heard a substantial amount of evidence in relation to the offence of begging. Aspects of this evidence, and the Committee’s deliberations and recommendations in relation to it, are discussed in more detail on pages 14 to 16 of this Report.

(f) has on or about his person without lawful excuse (the proof of which excuse shall be on such person) any article of disguise—

shall be guilty of an offence.

Penalty: For a first offence—imprisonment for one year;

For a second or subsequent offence against this section (whether under the same paragraph or not)—imprisonment for two years.

1. Repeal

2. Re-enact in amended form in the Summary Offences Act 1966

1. The Committee is of the view that there is a continued need for an offence of this nature.

2. The Committee recommends that a new offence be inserted in the Summary Offences Act 1966 that modernises and consolidates section 6(1)(f) and section 7(1)(h) of the Vagrancy Act 1966 into a single offence.

3. The Committee believes that it is not appropriate to maintain a reverse onus of proof in relation to this offence, and in this regard recommends that the new provision make it a summary offence to “be disguised with unlawful intent.”

Summary Offences Act 1966.

In its Discussion Paper the Committee proposed that this section be repealed because conduct of this kind related directly to the commission of a criminal offence is adequately covered by the law of attempt. Having reviewed submissions on this provision, the Committee accepts that the law of attempt does not adequately cover the use of disguises for criminal purposes in some important circumstances.

(2) Proceedings against any person under paragraph (c) of the last preceding sub-section shall not be taken except by a member of the police force.

Repeal

This provision will not be required if section 6(1)(c) is repealed as the Committee recommends.

7. Soliciting alms, cheating etc.

(1) Any person who—

(a) solicits gathers or collects alms subscriptions or contributions under a false pretence;

Repeal

Suitable provisions already exist in other Acts.

Fundraising Appeals Act 1998, s.7;

Crimes Act 1958, ss.81 and 82.

(b) imposes or endeavours to impose upon any person or charitable institution by a false or fraudulent representation either verbally or in writing with a view to obtaining money or any other benefit or advantage;

Repeal

Suitable provisions already exist in other Acts.

Fundraising Appeals Act 1998, s.7;

Crimes Act 1958, ss.81 and 82.

(c) wilfully and obscenely exposes his person in a public place or in the view thereof;

1. Repeal

2. Re-enact in the Summary Offences Act 1966

The Committee believes that the offence of wilful and obscene exposure should be retained through re-enactment in the Summary Offences Act 1966.

Summary Offences Act 1966.

In its Discussion Paper the Committee suggested that the offence of wilful and obscene exposure might be subsumed into a re-worded general offence of ‘offensive conduct’ in the Summary Offences Act 1966. Having reviewed submissions on this point, the Committee acknowledges that wilful and obscene exposure should be retained as a specific offence in the Summary Offences Act 1966. This is because section 7(1)(c) is defined as a sexual offence, and so a prior conviction for this offence may be relevant to sentencing for subsequent sexual offences, and to existing provisions that relate to protecting the community from sexual offenders. (See for example section 60B of Crimes Act 1958, which relates to loitering by a sexual offender.)

(d) in or near a public place or within the view or hearing of any person being or passing therein or thereon or in or near any house or premises licensed for the sale of liquors plays or bets or solicits or encourages any other person to play or bet—

(i) at or with an instrument of gaming at any game or pretended game of chance;

(ii) at or on a game or trick of sleight of hand;

(iii) at or on a game or trick played with an instrument which in the opinion of the court is constructed or kept as a means of cheating;

Repeal

1. Suitable provisions already exist in other Acts.

2. This offence is under-utilised.

Lotteries, Gaming and Betting Act 1966, ss. 11, 13;

Gaming and Betting Act 1994, s.114.

(e) being a known or reputed cheat loiters in or near a public place or in or near a house or premises licensed for the sale of liquors and has in his possession an instrument of gaming or an instrument which in the opinion of the court is constructed or kept as a means of cheating, unless such person accounts for his having such instrument in his possession to the satisfaction of the court;

Repeal

1. With respect to possession of an instrument of cheating, a suitable provision already exists in another Act.

2. The Committee believes that possession of an instrument of gaming that is not related directly to the commission of a criminal offence should no longer be an offence.

3. This offence is under-utilised.

Crimes Act 1958, ss. 91.

(f) being a suspected person or a known or reputed thief or cheat loiters in or about or frequents—

(i) any river canal navigable stream dock or basin or a quay wharf or warehouse near or adjoining thereto or a street highway or avenue leading thereto;

(ii) a public place; or

(iii) a place adjacent to a street or highway—

with intent to commit an indictable offence;

1. Repeal

2. Re-enact in amended form in the Summary Offences Act 1966

The Committee believes that this offence should be retained, and that:

1. This offence should be re-located to the Summary Offences Act 1966;

2. This section is unduly specific and prescriptive in defining where loitering offences may occur. The section should be amended to define in simplified, general terms the locations in which the offence may occur;

3. The amended form of this offence should refer specifically to loitering by persons known or reputed to have committed drug-related offences, in addition to those known or reputed to have committed property offences;

4. To overcome concerns that this provision may be used inappropriately, the provision should be amended to require, in addition to loitering, “the performance of an act with the intent to commit, and in furtherance of, an indictable offence.”

Summary Offences Act 1966.

See pages 16 and 17 of this report.

(g) has in his custody or possession without lawful excuse (the proof of which excuse shall be on such person) any picklock-key crow jack bit or other implement of housebreaking;

1. Repeal

2. Re-enact in the Summary Offences Act 1966

The Committee believes that a provision of this kind should be retained through re-enactment in the Summary Offences Act 1966.

Crimes Act 1958, s. 91;

Summary Offences Act 1966.

In its Discussion Paper the Committee recommended that this provision be repealed on the basis that its subject matter was adequately covered by section 91 of the Crimes Act 1958.

Having reviewed submissions on this provision, the Committee acknowledges that s.91 of the Crimes Act 1958 does not adequately cover the offences presently proscribed by section 7(1)(g), and hence the Committee recommends retention of this provision.

(h) is found disguised or has his face blackened with an unlawful intent;

1. Repeal

2. Re-enact in amended form in the Summary Offences Act 1966

1. The Committee is of the view that there is a continued need for an offence of this nature.

2. The Committee recommends that a new offence be inserted in the Summary Offences Act 1966 that modernises and consolidates section 7(1)(h) and section 6(1)(f) of the Vagrancy Act 1966 into a single offence.

3. The Committee recommends that the new provision should make it a summary offence to “be disguised with unlawful intent.”

Summary Offences Act 1966

In its Discussion Paper the Committee proposed that this section be repealed because conduct of this kind related directly to the commission of a criminal offence is adequately covered by the law of attempt. Having reviewed submissions on this provision, the Committee accepts that the law of attempt may not adequately cover conduct of this kind in some circumstances. Accordingly, the Committee recommends that a new offence be inserted in the Summary Offences Act 1966 that modernises and consolidates section 6(1)(f) and section 7(1)(h) into a single offence (and removes from section 6(1)(f) the reverse onus of proof.)

(i) is found without lawful excuse (the proof of which excuse shall be on such person) in or upon or within the precincts of a building or structure or in a garden or enclosure or in or on board a ship or other vessel in any port harbor or place within Victoria or in a mine within the meaning of the Mineral Resources Development Act 1990;

Repeal

Suitable provisions already exist in another Act.

Summary Offences Act 1966, ss.9(1)(d) and (e).

(j) fraudulently manufactures or aids in the manufacture of any spurious or mixed metal or substance or fraudulently sells or offers for sale as unmanufactured gold or as gold in its natural state any metal or mixed or adulterated metal or other substance whether partly composed of gold or not—

shall be guilty of an offence.

Penalty: For a first offence—imprisonment for two years;

For a second or subsequent offence against this section (whether under the same paragraph or not)—imprisonment for three years.

Repeal

1. This provision appears to be archaic in many respects, and the subject matter is adequately covered by various codes and regulations dealing with the quality of materials.

2. With respect to criminal activity in this context, a suitable provision already exists in another Act.

3. This offence is under-utilised.

Crimes Act 1958, ss.81 and 82.

(2) In proving intent to commit an indictable offence for the purposes of paragraph (f) of the last preceding sub-section it shall not be necessary to show that the person charged was guilty of any particular act or acts tending to show his intent, and he may be convicted if from the circumstances of the case and from his known character as proved to the court before which he is charged it appears to such court that his intent was to commit an indictable offence.

Repeal

This provision will no longer be necessary if the amended form of section 7(1)(f) is re-enacted, requiring an overt act, as recommended by the Committee.

8. Offences relating to firearms etc.

Any person who—

(a) is armed, with criminal intent, with—

(i) a firearm or an imitation firearm within the meaning of section 29 (3) of the Crimes Act 1958; or

(ii) a prohibited weapon or controlled weapon within the meaning of section 3 of the Control of Weapons Act 1990;

1. Repeal

2. Re-enact in alternative legislation.

The Committee believes that this offence should be retained through re-enactment in alternative legislation because:

1. Firearms legislation does not adequately deal with situations in which a person is armed with an unlicensed, prohibited, or controlled weapon with ‘criminal intent’;

2. Being armed with criminal intent should be an indictable, rather than a summary offence.

Control of Weapons Act 1990, ss.5 and 6; Firearms Act 1996, ss.5 and 6.

Crimes Act 1958.

(b) escapes or attempts to escape from a lock-up watch-house or like place wherein he is lawfully detained or from any person in whose legal custody he is or by whom he is lawfully detained—
shall be guilty of an offence.

Penalty: 50 penalty units or imprisonment for 5 years.

1. Repeal

2. Re-enact in the Summary Offences Act 1966

The Committee believes that this offence should be retained through re-enactment in the Summary Offences Act 1966 because:

1. A broad offence dealing with escape from lawful custody is necessary to deal with escapes not covered by section 479C of the Crimes Act 1958;

2. A summary form of this offence should be retained.

Crimes Act 1958, s.479C

Summary Offences Act 1966.

In its Discussion Paper the Committee proposed that this section be repealed because escape from lawful custody was adequately dealt with by section 479C of the Crimes Act 1958. Having reviewed submissions on this provision, the Committee accepts that section 8(b) should be retained through re-enactment in the Summary Offences Act 1958, because section 479C of the Crimes Act 1958 deals only with escape from the custody of police and certain other officers. A broader provision dealing with escape from any form of lawful custody is necessary because a number of persons other than police officers may lawfully detain another in certain circumstances, including citizens conducting a citizen’s arrest, sheriffs carrying out their duties, and authorised officers of certain government departments.

It is also important that a summary form of this offence be retained.

9. Evidence of bad character

In any proceedings under any of the foregoing provisions of this Act except paragraph (c) of sub-section (1) of section 6 the informant may—

(a) give or produce evidence in support of the information to prove that the person charged is a known or reputed thief or cheat or was found in company with reputed thieves or persons having no visible lawful means of support; or

(b) give or produce evidence to rebut any evidence (including evidence as to general character) given by or on behalf of the person charged.

1. Repeal

2. Re-enact in amended form in the Summary Offences Act 1966

The Committee believes that an amended form of this provision should be retained through re-enactment in the Summary Offences Act 1966 because this is a procedural provision relevant to proving a loitering charge under section 7(1)(f) (which the Committee also recommends be retained through re-enactment in amended form.)

Summary Offences Act 1966.

Fortune Telling etc.

13. Fortune telling and pretending to exercise witchcraft etc.

Any person who pretends or professes to tell fortunes or uses any subtle craft means or device by palmistry or otherwise to defraud or impose on any other person or pretends to exercise or use any kind of witchcraft sorcery enchantment or conjuration or pretends from his skill or knowledge in any occult or crafty science to discover where or in what manner any goods or chattels stolen or lost may be found shall be guilty of an offence.

Penalty: 5 penalty units.

Repeal

1. The Committee notes that Section 13 is in many respects anachronistic, and is only rarely used today.

2. The Committee considers that ss.81 and 82 of the Crimes Act 1958, as well as certain provisions of the Fair Trading Act 1999, are sufficiently broad to cover predatory behaviour of a serious nature in the context of fortune telling, and other conduct that might otherwise fall within the ambit of Section 13.

Crimes Act 1958, ss. 81 and 82.

Fair Trading Act 1999

The Committee notes that the Crimes Act provisions appropriately require proof of a dishonest intention and of a deception for the purpose of gaining property or a financial advantage.

15. Information

(1) Unless otherwise expressly provided any member of the police force or any member of the staff of a council concerned may file a charge for an offence against this Act.

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

Repeal

This provision will no longer be needed if the Vagrancy Act 1966 is repealed.

16. Neglect to prosecute

If any 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

1. A suitable provision already exists in another Act.

2. This provision will no longer be needed if the Vagrancy Act 1966 is repealed.

Magistrates’ Court Act 1989, s.38.

17. 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.

Repeal

A suitable provision already exists in another Act.

Summary Offences Act 1966, s. 58.

18. Procedure

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

Repeal

A similar provision already exists in another Act.

Magistrates’ Court Act 1989, s.25

Section 25 of the Magistrates’ Court Act 1989 provides that the Magistrates’ Court has the jurisdiction to hear and determine all summary offences, and to hear and determine all indictable offences which may be heard and determined summarily.

19. Offences of a serious nature not to be dealt with under this Act

If the court is of opinion that the offence charged 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 alleged in the charge before the court whether the person charged has or has not pleaded thereto.

Repeal

This provision will not be needed if the Vagrancy Act 1966 is repealed.

20. Forfeiture of offensive weapons etc.

(1) When any person is convicted of an offence against any of the provisions of this Act any firearm sword dirk dagger bludgeon or other offensive weapon or instrument and any instrument of gaming or of cheating picklock-key crow jack bit or other implement of housebreaking and any metal or substance or spurious mixed or adulterated metal or substance such as is referred to in paragraph (j) of sub-section (1) of section 7 found in his possession or control when arrested may by order of the court be forfeited to Her Majesty.

Repeal

Suitable provisions already exist in other Acts.

Control of Weapons Act 1990, s.9;

Gaming No.2 Act 1997, s.102;

Firearms Act 1996, s.151.

(2) All property forfeited to Her Majesty under this Act shall by order of the court be sold, or in its discretion destroyed, and the proceeds of any such sale shall be paid to the Consolidated Fund.

(3) This section shall be read and construed as in aid of, and not in derogation of, the provisions of any other Act relating to firearms or any other offensive weapons or things.

Repeal

A suitable provision already exists in another Act.

Magistrates’ Court Act 1989, s.137.

22. Entry of member of police force

In the execution of this Act any member of the police force is authorized to enter and be and remain upon or in any public place notwithstanding that such place be upon private property and no such entry shall in any way be deemed a trespass.

Repeal

1. A suitable provision exists in another Act.

2. This provision will be unnecessary if the Vagrancy Act 1966 is repealed.

Summary Offences Act 1966, s. 22.

23. Construction of references

Unless the context otherwise requires any reference in any other Act to “an idle and disorderly person” or to “a rogue and vagabond” or to “an incorrigible rogue” or to a person convicted of an offence against Part 3 of the Police Offences Act 1958 or any corresponding previous enactment shall be deemed and taken to refer to and mean persons convicted pursuant to the provisions of sections 6, 7 and 8 respectively of this Act.

Repeal

This provision will not be necessary if the Vagrancy Act 1966 is repealed.

24. Tender of amends

No plaintiff shall recover in any action for any irregularity trespass or other wrongful proceeding made or committed in the execution of or under the authority of this Act if tender of sufficient amends is made to the plaintiff before such action is commenced; and in case no tender is made the defendant in any such action may, by leave of the court in which the action is pending and at any time before issue is joined in the action, pay into court such sum of money as he thinks fit and thereupon the action shall proceed as an action in which the defendant is allowed to pay money into court.

Repeal

1. This is a procedural provision that will not be necessary if the Vagrancy Act 1966 is repealed.

2. This provision is under-utilised.