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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Crimes Legislation Amendment
Bill 2004
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Acts 2
4 Explanatory notes 2
Schedule 1 Amendment of Child Protection (Offenders Registration) Act
2000 No 42 3
Schedule 2 Amendment of Children (Criminal Proceedings) Act 1987
No 55 4
Schedule 3 Amendment of Costs in Criminal Cases Act 1967 No 13 5
Schedule 4 Amendment of Crimes Act 1900 No 40 6
Schedule 5 Amendment of Crimes (Sentencing Procedure) Act 1999
No 92 9
Schedule 6 Amendment of Criminal Appeal Act 1912 No 16 10
Schedule 7 Amendment of Mental Health Act 1990 No 9 11
Schedule 8 Amendment of Summary Offences Act 1988 No 25 12
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2004
New South Wales
Crimes Legislation Amendment
Bill 2004
Act No , 2004
An Act to amend certain Acts with respect to criminal offences and proceedings
for criminal offences; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Crimes Legislation Amendment Bill 2004
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Crimes Legislation Amendment Act 2004.
2 Commencement
This Act commences on the date of assent.
3 Amendment of Acts
The Acts specified in Schedules 1-8 are amended as set out in those
Schedules.
4 Explanatory notes
Matter appearing under the heading "Explanatory note" in any of
the Schedules does not form part of this Act.
Page 2
Crimes Legislation Amendment Bill 2004
Amendment of Child Protection (Offenders Registration) Act 2000 No 42 Schedule 1
Schedule 1 Amendment of Child Protection (Offenders
Registration) Act 2000 No 42
(Section 3)
Section 3 Definitions
Insert after paragraph (d) of the definition of Class 2 offence in section
3 (1):
(d1) an offence under section 21G of the Summary Offences
Act 1988, where the person who was being filmed as
referred to in that section was then a child, or
Explanatory note
This amendment provides that the offence of filming a child for indecent purposes (part
of a new offence arising from the amendment to the Summary Offences Act 1988 set
out in Schedule 8) is to be a Class 2 offence for the purposes of the Child Protection
(Offenders Registration) Act 2000. Consequently, the registration procedures and
reporting obligations under that Act will apply to persons found guilty of such an
offence.
Page 3
Crimes Legislation Amendment Bill 2004
Schedule 2 Amendment of Children (Criminal Proceedings) Act 1987 No 55
Schedule 2 Amendment of Children (Criminal
Proceedings) Act 1987 No 55
(Section 3)
[1] Section 11 Publication and broadcasting of names
Insert after section 11 (1) (c):
(d) any person who is a brother or sister of a victim of the
offence to which the proceedings relate, where that
person and the victim were both children when the
offence was committed.
[2] Section 11 (1A) (b)
Insert ", or is deceased," after "child".
[3] Schedule 2 Savings and transitional provisions
Insert at the end of clause 1 (1):
Crimes Legislation Amendment Act 2004, to the extent to
which it amends this Act
[4] Schedule 2
Insert at the end of the Schedule, with appropriate Part and clause
numbers:
Part Provision consequent on enactment of
Crimes Legislation Amendment Act 2004
Publication and broadcasting of names
Section 11, as amended by the Crimes Legislation
Amendment Act 2004, extends to proceedings commenced
before the commencement of those amendments.
Explanatory note
Item [1] extends the class of persons whose names are not to be published or
broadcast in respect of criminal proceedings involving a child.
Item [2] extends the prohibition on publishing or broadcasting the name of a child who
has been involved in criminal proceedings to a child who is deceased.
Items [3] and [4] deal with savings and transitional matters.
Page 4
Crimes Legislation Amendment Bill 2004
Amendment of Costs in Criminal Cases Act 1967 No 13 Schedule 3
Schedule 3 Amendment of Costs in Criminal Cases Act
1967 No 13
(Section 3)
Section 2 Certificate may be granted
Insert "a special hearing conducted under section 19 of the Mental Health
(Criminal Procedure) Act 1990 and also includes" after "includes" in
section 2 (3).
Explanatory note
This amendment ensures that a certificate for the payment of a defendant's costs can
be given in relation to the defendant in a special hearing conducted under section 19
of the Mental Health (Criminal Procedure) Act 1990 in the same way as it can be given
in relation to the defendant in a trial being conducted with respect to criminal
proceedings generally.
Page 5
Crimes Legislation Amendment Bill 2004
Schedule 4 Amendment of Crimes Act 1900 No 40
Schedule 4 Amendment of Crimes Act 1900 No 40
(Section 3)
[1] Section 52A Dangerous driving: substantive matters
Insert after section 52A (5) (f):
(g) the person falling from the vehicle, or being thrown or
ejected from the vehicle, while being conveyed in or on
the vehicle (whether as a passenger or otherwise),
(h) an impact between any object (including the ground)
and the person, as a consequence of the person (or any
part of the person) being or protruding outside the
vehicle, while the person is being conveyed in or on the
vehicle (whether as a passenger or otherwise).
[2] Section 52B Dangerous navigation: substantive matters
Insert after section 52B (5) (f):
(g) the person falling from the vessel, or being thrown or
ejected from the vessel, while being conveyed in or on
the vessel (whether as a passenger or otherwise),
(h) an impact between any object (including the water and
the ground) and the person, as a consequence of the
person (or any part of the person) being or protruding
outside the vessel, while the person is being conveyed
in or on the vessel (whether as a passenger or
otherwise).
[3] Section 80A Sexual assault by forced self-manipulation
Insert in alphabetical order in section 80A (1):
circumstances of aggravation means circumstances in
which:
(a) at the time of, or immediately before or after, the
commission of the offence, the alleged offender
maliciously inflicts actual bodily harm on the alleged
victim or any other person who is present or nearby, or
(b) at the time of, or immediately before or after, the
commission of the offence, the alleged offender
threatens to inflict actual bodily harm on the alleged
victim or any other person who is present or nearby by
means of an offensive weapon or instrument, or
Page 6
Crimes Legislation Amendment Bill 2004
Amendment of Crimes Act 1900 No 40 Schedule 4
(c) the alleged offender is in the company of another
person or persons, or
(d) the alleged victim is under the age of 16 years, or
(e) the alleged victim is (whether generally or at the time of
the commission of the offence) under the authority of
the alleged offender, or
(f) the alleged victim has a serious physical disability, or
(g) the alleged victim has a serious intellectual disability.
[4] Section 80A (2) and (2A)
Omit section 80A (2). Insert instead:
(2) Any person who compels another person to engage in self-
manipulation, by means of a threat that the other person could
not reasonably be expected to resist, is liable to imprisonment
for 14 years.
(2A) Any person who compels another person to engage in self-
manipulation:
(a) by means of a threat that the other person could not
reasonably be expected to resist, and
(b) in circumstances of aggravation,
is liable to imprisonment for 20 years.
[5] Eleventh Schedule Savings and transitional provisions
Insert at the end of the Schedule, with appropriate Part and clause
numbers:
Part Crimes Legislation Amendment Act 2004
Dangerous driving and dangerous navigation
(1) Section 52A, as in force immediately before its amendment
by the Crimes Legislation Amendment Act 2004, continues to
apply to circumstances arising before the commencement of
that amendment as if that amendment had not been made.
(2) Section 52B, as in force immediately before its amendment by
the Crimes Legislation Amendment Act 2004, continues to
apply to circumstances arising before the commencement of
that amendment as if that amendment had not been made.
Page 7
Crimes Legislation Amendment Bill 2004
Schedule 4 Amendment of Crimes Act 1900 No 40
Sexual assault by forced self-manipulation
Section 80A, as in force immediately before its amendment
by the Crimes Legislation Amendment Act 2004, continues to
apply to an offence committed before the commencement of
those amendments as if those amendments had not been
made.
Explanatory note
Item [1] amends section 52A so as to extend the range of circumstances that can give
rise to an offence of dangerous driving occasioning death or grievous bodily harm.
Item [2] amends section 52B so as to extend the range of circumstances that can give
rise to an offence of dangerous navigation occasioning death or grievous bodily harm.
Items [3] and [4] amend section 80A so as to create separate offences of sexual assault
by forced self-manipulation and sexual assault by forced self-manipulation in
circumstances of aggravation. Circumstances of aggravation are defined in the
same way as they are defined in relation to other sexual assaults. One consequence
of this similarity is that the penalty of 20 years that currently applies if the victim is under
10 years' old will in future apply if the victim is under 16 years' old.
Item [5] deals with savings and transitional matters.
Page 8
Crimes Legislation Amendment Bill 2004
Amendment of Crimes (Sentencing Procedure) Act 1999 No 92 Schedule 5
Schedule 5 Amendment of Crimes (Sentencing
Procedure) Act 1999 No 92
(Section 3)
Section 100J Functions of Sentencing Council
Omit section 100J (1) (b). Insert instead:
(b) to advise and consult with the Minister in relation to:
(i) matters suitable for guideline judgments under
Division 4 of Part 3, and
(ii) the submissions to the Court of Criminal Appeal
to be made by the Minister in guideline
proceedings,
Explanatory note
This amendment enables the Sentencing Council to advise and consult with the
Minister administering the Crimes (Sentencing Procedure) Act 1999 in relation to all
matters that are suitable for guideline judgments by the Court of Criminal Appeal, not
just in relation to offences (as is currently the case), and in relation to submissions to
be made by the Minister in guideline proceedings generally, not just submissions
concerning applications for guideline judgments (as is currently the case).
Page 9
Crimes Legislation Amendment Bill 2004
Schedule 6 Amendment of Criminal Appeal Act 1912 No 16
Schedule 6 Amendment of Criminal Appeal Act 1912
No 16
(Section 3)
Section 7 Powers of court in special cases
Insert "or may make such other order (including an order releasing the
appellant from custody, either unconditionally or subject to conditions) as
the court considers appropriate" after "due process of law" in section 7 (4).
Explanatory note
This amendment allows the Court of Criminal Appeal to make the same kinds of order
with respect to an appellant whom it finds not guilty by reason of mental illness as a
court of trial may make under section 39 of the Mental Health (Criminal Procedure) Act
1990 in respect of a person whom a jury finds not guilty by reason of mental illness.
Page 10
Crimes Legislation Amendment Bill 2004
Amendment of Mental Health Act 1990 No 9 Schedule 7
Schedule 7 Amendment of Mental Health Act 1990 No 9
(Section 3)
[1] Section 81 Tribunal to review cases of persons found not guilty by
reason of mental illness
Omit section 81 (1) (b). Insert instead:
(b) to a person found, after a trial by a court or on an appeal,
to be not guilty by reason of mental illness and ordered:
(i) under section 39 of the Mental Health (Criminal
Procedure) Act 1990, or
(ii) under section 7 (4) of the Criminal Appeal Act
1912 (including that subsection as applied by
section 5AA (5) of that Act),
to be detained in a hospital or other place or to be
released from custody subject to conditions.
[2] Section 101 Termination of classification as forensic patient of
person found not guilty by reason of mental illness
Omit section 101 (1) (b). Insert instead:
(b) to a person found, after a trial by a court or on an appeal,
to be not guilty by reason of mental illness and ordered:
(i) under section 39 of the Mental Health (Criminal
Procedure) Act 1990, or
(ii) under section 7 (4) of the Criminal Appeal Act
1912 (including that subsection as applied by
section 5AA (5) of that Act),
to be detained in a hospital or other place or to be
released from custody subject to conditions.
[3] Schedule 1 Dictionary of terms used in the Act
Insert ", or released from custody subject to conditions," after "other
place" in paragraph (a) of the definition of forensic patient.
Explanatory note
Item [1] extends the power of review conferred on the Mental Health Review Tribunal
by section 81 of the Mental Health Act 1990 to persons who are conditionally released
under section 39 of the Mental Health (Criminal Procedure) Act 1990 or section 7 of the
Criminal Appeal Act 1912, rather than (as is currently the case) only those persons who
are ordered under those provisions to be detained in custody.
Item [2] extends section 101 of the Mental Health Act 1990, and item [3] extends the
definition of forensic patient in the Dictionary to the Mental Health Act 1990, to include
a reference to persons so released.
Page 11
Crimes Legislation Amendment Bill 2004
Schedule 8 Amendment of Summary Offences Act 1988 No 25
Schedule 8 Amendment of Summary Offences Act
1988 No 25
(Section 3)
Part 3B
Insert after Part 3A:
Part 3B Filming for indecent purposes
21G Filming for indecent purposes
(1) Any person who films, or attempts to film, another person to
provide sexual arousal or sexual gratification, whether for
himself or herself or for a third person, where the other
person:
(a) is in a state of undress, or is engaged in a private act, in
circumstances in which a reasonable person would
reasonably expect to be afforded privacy, and
(b) does not consent to being filmed,
is guilty of an offence.
Maximum penalty: 100 penalty units or imprisonment for 2
years, or both.
(2) For the purposes of this section:
(a) a person films another person if the person causes one
or more images (whether still or moving) of another
person to be recorded or transmitted for the purpose of
enabling himself or herself, or a third person, to observe
those images (whether while the other person is being
filmed or later), and
(b) a person is engaged in a private act if the person is
engaged in using the toilet, showering or bathing,
carrying on a sexual act of a kind not ordinarily done in
public or any other like activity.
21H Installing device to facilitate filming for indecent purposes
Any person who installs any device, or constructs or adapts
the fabric of any building, vehicle, vessel, tent or temporary
structure for the purpose of facilitating the installation or
Page 12
Crimes Legislation Amendment Bill 2004
Amendment of Summary Offences Act 1988 No 25 Schedule 8
operation of any device, with the intention of enabling that or
any other person to commit an offence under section 21G is
guilty of an offence.
Maximum penalty: 100 penalty units or imprisonment for 2
years, or both.
Explanatory note
This amendment inserts a new Part 3B into the Summary Offences Act 1988. The new
Part contains two offences: filming for indecent purposes and installing a device to
facilitate filming for indecent purposes. In this context, "filming for indecent purposes"
involves filming, for one's own or someone else's sexual arousal or sexual gratification,
some other person who is undressed, or is using the toilet or engaged in a private
sexual act, in circumstances in which a reasonable person would reasonably expect to
be afforded privacy.
Page 13
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