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1
Criminal Code (Drink Spiking) and Other Acts
Amendment Bill 2006
Criminal Code (Drink Spiking) and Other
Acts Amendment Bill 2006
Explanatory Notes
Objectives of the Bill
The Bill seeks to:
Amend the Criminal Code by the insertion of a new offence of unlawful
drink spiking;
Amend the Corrective Services Act 2006 to restrict leave of absence for
prisoners detained for sex offences contained in schedule 1 of the Act; and
Amend the Dangerous Prisoners (Sexual Offences) Act 2003 to clarify that
a judicial authority can order that a released prisoner be electronically
monitored during the period of a supervision order.
Reasons for the Bill
Criminal Code
After referral of the issue by the Standing Committee of Attorneys-
General, the Model Criminal Code Officers Committee produced a
discussion paper on the issue of drink spiking in March 2006. The
discussion paper recommended that all Australian jurisdictions enact an
offence of drink spiking which would extend to any substance that would
be likely to impair the consciousness or bodily function of the victim, or
which is intended to do so, whether or not the spiked drink is drunk wholly,
partly or at all. The proposed offence would not require any further intent.
Although Queensland's Criminal Code contains a number of relevant
offences (sections 218(c), 316, 322 and 323(b)), all require some further
intention either to commit an indictable offence or to further victimise the
victim.
Given the potential harm that may flow to victims of drink spiking, it is
appropriate that Queensland introduce an offence of unlawful drink
spiking.
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Criminal Code (Drink Spiking) and Other Acts
Amendment Bill 2006
Corrective Services Act 2006
The community expressed concerns in the November 2005 Work Outreach
Camps Community Engagement Report about sex offenders being
transferred to Work Camps to perform reparation work in the community.
As a result the Corrective Services Act 2006 provides that offenders
convicted of a sexual offence listed in schedule one of the Act are restricted
from transfer to Work Camps.
Limiting access to leave of absence by sexual offenders is in keeping with
the existing restrictions in addressing community concerns about sexual
offenders being granted release into the community prior to their parole
eligibility or full time release.
Dangerous Prisoners (Sexual Offenders) Act 2003
The Dangerous Prisoners (Sexual Offenders) Act 2003 allows for the
continuing detention or supervised release of sexual offenders who, in the
opinion of the court, pose a serious danger to the community if released at
their sentence expiry date.
Electronic monitoring is a reliable technology that is utilised in the United
Kingdom, Canada, the United States, New Zealand, Victoria, South
Australia and Western Australia as an enhanced surveillance regime for
higher risk offenders.
Released prisoners under the Dangerous Prisoners (Sexual Offenders) Act
2003 are prisoners that the court has determined pose a serious danger to
the community if they are not subject to appropriate levels of supervision.
It is appropriate that the court, in determining an application under the
Dangerous Prisoners (Sexual Offenders) Act 2003, has the option of
ordering that the prisoner be electronically monitored as a condition of a
supervision order.
Achievement of the Objectives
The Bill amends the Criminal Code by the insertion of an offence of unlawful
drink spiking. The offence will apply to a person who administers or
attempts to administer, in drink, a substance to another person, without the
other person's knowledge of the presence of the substance, with intent to
cause the other person to be stupefied and overpowered.
The Bill amends section 82 of the Corrective Services Act 2006 to include
prisoners detained for a sexual offence as contained in schedule 1 of the
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Criminal Code (Drink Spiking) and Other Acts
Amendment Bill 2006
Act. Prisoners included in section 82 may be granted only compassionate
leave or health leave.
The Bill also amends section 16 of the Dangerous Prisoners (Sexual
Offenders) Act 2003 by the inclusion of a specific example, to clarify that a
judicial authority can order that a released prisoner must wear a device for
monitoring the prisoner's location.
Estimated Cost for Government Implementation
The costs of implementation of electronic monitoring will be met from
funding allocated to the Department of Corrective Services.
Consistency with Fundamental Legislative Principles
Unlawful drink spiking
The offence of unlawful drink spiking includes a defence where the
substance was administered, or attempted to be administered, as a prank
(the defence does not apply where the substance was a dangerous drug).
The accused bears the onus of proving the defence.
According to an Australian Institute of Criminology report, the majority of
reported incidents of dring spiking have no associated criminal
victimisation, resulting in difficulties in proving existing offences in the
Code, which include as an element of the offence, an intent to commit an
indictable offence. Given the harm that may flow from falling victim to the
act of drink spiking, it is appropriate that the accused bears the onus in
proving the act was a playful prank.
Electronic Monitoring
There is an argument that electronic monitoring does not have sufficient
regard to the rights and liberties of individuals as required by the
Legislative Standards Act 1992. The wearing of a monitoring device is an
intrusion into a person's privacy. However, it must be noted that the added
level of supervision that electronic monitoring gives may facilitate the
supervised release of a prisoner into the community. Prisoners released on
supervision under the Dangerous Prisoners (Sexual Offenders) Act 2003 are
prisoners the court has determined pose a serious danger to the community
if they are not subject to appropriate levels of supervision. It will be a
matter for the court to determine whether electronic monitoring is
warranted in the circumstances in order to ensure the protection of the
community.
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Criminal Code (Drink Spiking) and Other Acts
Amendment Bill 2006
Restricted Leave of Absence
The provisions that limit access to leave of absence by sexual offenders are
justified as the safety of the community outweighs the interests of a sex
offender in release from custody for a short period of time before being
eligible for release or parole. Sufficient regard has been had to the rights of
sex offenders by maintaining the ability to grant sex offenders supervised
leave of absence for compassionate or health and medical reasons.
Sexual offenders are not currently eligible to be transferred to Work Camps
and apply for reintegration leave. Education leave is available to prisoners
at Work Camps and approval for attendance at approved vocational and
training courses in the community may be considered. Sexual offenders
may avail themselves of vocational and education programs and
opportunities that are provided within correctional centres. The
reintegration of sexual offenders into the community will occur via the
Transitions Programs with a view to addressing the core factors that lead to
re-offending.
Consultation
Criminal Code - unlawful drink spiking
The Director of Public Prosecutions, the Chief Justice of the Supreme
Court, the Chief Judge of the District Court, the Chief Magistrate, Legal
Aid Queensland and departmental representatives on the Queensland Drug
Coordinating Committee, were consulted during the drafting of the
provision.
Notes on Provisions
Part 1 Preliminary
Clause 1 Short title: This clause provides that the Act's short title is the
Criminal Code (Drink Spiking) and Other Acts Amendment Act 2006.
Clause 2 Commencement: This clause provides that the amendment to the
Dangerous Prisoners (Sexual Offenders) Act 2003 will commence on a day
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Criminal Code (Drink Spiking) and Other Acts
Amendment Bill 2006
fixed by proclamation. The amendments to the Criminal Code and the
Corrective Services Act 2006 commence upon assent.
Part 2 Amendment of Criminal Code
Clause 3 Code amended in pt 2: This clause provides that this part amends
the Criminal Code.
Clause 4 Insertion of new s 316A: This clause creates the new offence of
unlawful drink spiking.
Pursuant to section 316A(1) and (2) the offence applies to a person who
administers, or attempts to administer, in drink, a substance to another
person without that other person's knowledge of the presence of the
substance (whether at all or in the quantity added), with intent to cause the
other person to be stupefied and overpowered. It is immaterial whether the
substance is capable of having the effect intended and it is immaterial if the
victim is a person other than the intended victim.
The matters listed as immaterial in subsection (2) are matters which still
may affect sentence although a court may take note of Parliament's listing
of those matters when considering the weight to give such matters at
sentence.
Proposed section 316A(3) in conjunction with the definition of
"circumstance" makes clear that even if the victim intended to become
stupefied and overpowered, they are entitled to become stupefied and
overpowered on their own terms (that is, timing, place or way of
stupefaction).
Subsection (4) provides that the offence does not apply to an act lawfully
done in the course of the practice of a health professional, the carrying out
of a function under an Act or the performance of the responsibilities of a
parent or carer.
Subsection (5) defines an attempt to administer a substance for the purpose
of the offence (and section 4) as including adding a substance to drink in
preparation for the administration of the substance.
Subsection (6) provides a defence if the accused can prove that the
substance was administered, or attempted to be administered, as a prank.
The defence is not available where the substance involved was a dangerous
drug as defined in section 4 of the Drugs Misuse Act 1986. For the
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Criminal Code (Drink Spiking) and Other Acts
Amendment Bill 2006
purposes of the defence, "prank" means a trick of a playful nature and not a
trick of a malicious nature. This definition was included because the
Macquarie Dictionary defines ``prank'' as a trick or practical joke,
sometimes mischievous in nature. The meanings for `mischievous' include
malicious or playfully annoying. Whether the prank is playful as opposed
to malicious will depend on the circumstances and the context in which the
prank occurred.
Subsection (7) defines "adding a substance" to drink to include: "cause to
be added to drink" (therefore, the offence will extend to the circumstance
where the offender has the drink made up by a bartender); substitute drink
with other drink containing the substance (for example if the offender
switches drinks with the victim); or take any step to provide drink
containing the substance instead of other drink.
`Stupefy and overpower' is defined to clarify that the phrase includes
stupefy and overpower by intoxication.
Clause 5 Amendment of s 552B (Charges of indictable offences that may
be dealt with summarily): This clause amends section 552B to include new
section 316A. Therefore the offence will be capable of summary
disposition at the election of the accused.
Part 3 Amendment of Corrective
Services Act 2006
Clause 6 Act amended in pt 3: This clause provides that this part amends
the Corrective Services Act 2006.
Clause 7 Amendment of s 82 (Leave for other particular prisoners): This
clause amends section 82(1) by including prisoners detained for a sexual
offence contained in schedule 1.
Clause 8 Insertion of new ch 7A: This clause provides that the amendment
to section 82 is retrospective in that it applies to current prisoners and
applies to those prisoners who have applied for leave but the application
has not yet been determined.
This clause also provides that for any resettlement leave of absence
program granted prior to the amendment of section 82 the law under the
pre-amended Act and the Judicial Review Act 1991, will apply to these
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Criminal Code (Drink Spiking) and Other Acts
Amendment Bill 2006
matters for the purposes of amending, suspending or cancelling those
matters.
Part 4 Amendment of Dangerous
Prisoners (Sexual Offenders) Act
2003
Clause 9 Act amended in pt 4: This clause provides that this part amends
the Dangerous Prisoners (Sexual Offenders) Act 2003.
Clause 10Amendment of s 16 (Conditions for supervised release): This
clause amends section 16 by the insertion of an express example that a
judicial authority can order that a prisoner be electronically monitored as a
condition of a supervision order.
© State of Queensland 2006