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Summary Offences (Offensive Behaviour) Bill
Circulation Print
EXPLANATORY MEMORANDUM
PART 1--PRELIMINARY
Clause 1 provides that the purpose of the Bill is to amend the Summary
Offences Act 1966 to--
· create a new offence relating to offensive behaviour;
and
· provide for infringement notices.
Clause 2 provides for the commencement of this Bill.
PART 2--SUMMARY OFFENCES ACT 1966
Clause 3 inserts a new section 18 into the Summary Offences Act 1966.
New section 18 makes it an offence for a person to--
· use offensive words or gestures while in a motor
vehicle; and
· within the view or hearing of another person in a public
place; and
· in a "declared area".
The offence specifically targets the disruptive and nuisance
behaviour of "sex tourists". For example, an offence may be
committed where a person or persons cruise in a car around
streets where street prostitution commonly occurs and yell
abusive or offensive words out from the vehicle at sex workers,
residents or passers-by on the street.
The offence will only apply in areas declared by the Minister and
gazetted accordingly. In exercising the power to declare such an
area, the Minister must be satisfied that the area is one where a
high level of street prostitution occurs (for example, certain
streets in the City of Port Phillip). A declaration will last for a
period of twelve months.
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The offence is one of strict liability, meaning that it does not
require proof of intention or recklessness. Therefore, in the
example provided above, the offence is committed once the
offensive words are uttered from the vehicle. Defendants will not
be able to escape liability by claiming that they did not intend
their words to be offensive.
This offence can be enforced by way of an infringement notice,
issued by a member of the police force. Alternatively, the
offence is punishable by a maximum fine of $500.
Clause 4 inserts new sections 60AA to 60AH which set out the power to
serve infringement notices and the procedural and enforcement
requirements relating to infringement notices.
New section 60AA provides that members of the police force
may serve an infringement notice on any person that he or she
reasonably believes has committed an offence under new
section 18. The police officer can serve the notice personally, for
example, by handing the notice to the person. Alternatively, the
police officer can arrange for the notice to sent to the person by
post.
New section 60AB sets out the information that must be included
in an infringement notice. The notice will specify that the fine
payable is $100.
New section 60AC allows for a police officer to accept late
payment of the infringement penalty (ie. "the fine") on certain
conditions. Late payment may be accepted only where the notice
has not been withdrawn, and the next stage in enforcing the fine
has not been undertaken.
There are two ways of enforcing the fine once an infringement
notice has been served. First, the PERIN procedure may be used
under Part 2 of Schedule 7 to the Magistrates' Court Act 1989
if the infringement notice is an infringement notice within the
meaning of Schedule 7 to that Act. To be an infringement notice
within the meaning of Schedule 7, the offence for which the
notice is issued must be prescribed in the Magistrates' Court
General Regulations.
Secondly, prosecution for the offence can be brought before the
Magistrates' Court. In this instance, a police officer will probably
file the charge.
Therefore, late payment may only be accepted under new section
60AC if a courtesy letter has not been served on the person (as
the next stage under the PERIN procedure), and no charge has
been filed in respect of the offence (as the next stage in a
prosecution before a Court).
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New section 60AD allows for a police officer to withdraw an
infringement notice within 28 days after the date on which the
notice was served. To withdraw the notice, a withdrawal notice
must be served either by serving the notice personally or by
sending the notice to the person by post. If an infringement
notice is withdrawn and the fine has already been paid, the
amount paid must be refunded to the person.
New section 60AE provides that if the infringement notice is not
withdrawn and a person on whom the notice has been served
pays the fine within time (or a police officer has accepted late
payment in accordance with new section 60AC) then the person
has expiated or expunged the offence by the payment.
This means that payment of the fine essentially "makes amends"
and restores the person to their original position before the notice
was served.
Payment within time (or accepted late payment) of the fine
prevents--
· any proceedings being taken against the person in
respect of the offence; or
· any conviction being recorded against the person for the
offence.
New section 60AF provides that if a person pays the fine, then
the payment is not to be interpreted as, or taken to mean that, the
person has admitted that they committed the offence. Nor is
payment to be interpreted as an admission of legal responsibility
that could be used in a subsequent civil proceeding against the
person. In fact, payment must in no way prejudice any future
legal proceedings against the person.
New section 60AG provides that if the fine has not been paid
within time (or in accordance with new section 60AC that allows
a police officer to accept late payment), or a police officer
withdraws the infringement notice, a charge may then be filed in
respect of the offence. Enforcement of the offence under this
provision would involve prosecution in the Magistrates' Court.
New section 60AH provides that the PERIN procedure may also
be used to enforce the offence. The PERIN procedure is the
alternative enforcement method to prosecution in Court (as
provided in new section 60AG). This new section provides that
this procedure, as set out under Part 2 of Schedule 7 to the
Magistrates' Court Act 1989 may only apply if the following
conditions are met--
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· the infringement notice is an infringement notice within
the meaning of Schedule 7, that is, the offence for which
the notice is issued is prescribed in the Magistrates'
Court General Regulations;
· the fine has not been paid within time (or in accordance
with new section 60AC that allows a police officer to
accept late payment);
· the notice has not been withdrawn; and
· a charge has not been filed against the person in respect
of the offence.
If all these requirements are met, then the procedure set out under
Part 2 of Schedule 7 to the Magistrates' Court Act 1989 can be
followed.
This involves a two-staged process commencing with the sending
of a reminder "courtesy letter". If payment is still not made
within an extended time period, the fine can be registered in the
Magistrates' Court and an enforcement order will be issued.
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