CRIMINAL CODE AMENDMENT BILL 2003

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This is a Bill, not an Act. For current law, see the Acts databases.

CRIMINAL CODE AMENDMENT BILL 2003

Western Australia

Criminal Code Amendment Bill 2003

CONTENTS

Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. The Criminal Code amended 2
Part 2 -- Amendments about child sex
tourism
4. Section 187 inserted 3
5. Sentence Administration Act 2003 consequentially
amended 3
6. Travel Agents Act 1985 consequentially amended 4
Part 3 -- Amendments about public
order
7. Section 62 amended 7
8. Section 68 replaced 7
9. Section 69 amended 8
10. Section 70 amended 8
11. Section 71 replaced 9
12. Section 72 amended 9
13. Section 73 amended 9
14. Section 74 amended 10
15. Sections 174 and 175 repealed 10
Part 4 -- Amendment about infanticide
16. Section 283 amended 11

187--3 page i
Criminal Code Amendment Bill 2003

Contents

Part 5 -- Amendments about
endangering life or health
17. Section 208 repealed 12
18. Sections 296 and 296A repealed 12
19. Sections 298, 299 and 300 repealed 12
20. Section 302 repealed 12
21. Sections 304 to 312 replaced by sections 304 and 305 12
22. Section 306 inserted 14
23. Section 595B inserted 16
24. Other Acts consequentially amended 16
Part 6 -- Amendments about sexual
servitude
25. Sections 331A, 331B, 331C and 331D inserted 17
26. Other Acts consequentially amended 19
Part 7 -- Amendments about the
summary trial of indictable
offences
Division 1 -- The Criminal Code amended
27. Section 1 amended 20
28. Section 3 replaced 20
29. Section 5 replaced 21
30. Section 360 amended 23
31. Section 361 amended 24
32. Section 369 amended 24
33. Section 426 amended 24
34. Section 426A repealed 25
35. Section 427 replaced 25
36. Section 433 repealed 26
37. Section 444 replaced 26
38. Chapter XLVII repealed 26
39. Section 552 replaced 27
40. Section 553 replaced 28
41. Sections 554 and 555 repealed 29
42. Section 558 replaced 29
43. Section 559 repealed 30
44. Section 562 replaced 30
45. Section 563 repealed 31

page ii
Criminal Code Amendment Bill 2003

Contents

46. Heading to Chapter LXI amended 31
47. Section 572 repealed 31
48. Section 574 repealed 31
49. Section 618 amended 31
50. Section 673 repealed 31
Division 2 -- Justices Act 1902 consequentially
amended
51. The Act amended by this Division 32
52. Section 97B amended 32
53. Sections 98, 99 and 100 replaced 32
54. Section 101 amended 35
55. Section 101A amended 35
56. Section 107 inserted 35
57. Section 137 amended 36
Division 3 -- Consequential amendments
58. Other Acts consequentially amended 36
Part 8 -- Other amendments
59. Section 81 replaced 37
60. Section 215 inserted 38
61. Amendments about masters etc. and consequential
amendment to the Evidence Act 1906 39
62. Section 321 amended 39
63. Section 354 amended 40
64. Section 370 amended 41
65. Section 399A repealed 41
66. Section 401 amended 41
67. Section 407 amended 42
68. Section 414 amended 42
69. Sections 436 and 437 replaced 43
70. Section 570B amended 44
71. Heading to Chapter LXI amended 44
72. Section 584 amended 44
73. Section 596 amended 45
74. Section 599 amended 45
75. Section 635 replaced 45
76. Section 635A amended 47

page iii
Criminal Code Amendment Bill 2003

Contents

Schedule 1 -- Amendments
consequential on Part 5
1. Bail Act 1982 amended 48
2. Corruption and Crime Commission Act 2003 amended 48
3. Criminal Law (Mentally Impaired Defendants) Act
1996 amended 49
4. Evidence Act 1906 amended 49
5. Young Offenders Act 1994 amended 50
Schedule 2 -- Amendments
consequential on Part 6
1. Bail Act 1982 amended 51
2. Criminal Law (Mentally Impaired Defendants) Act
1996 amended 51
3. Evidence Act 1906 amended 52
4. Young Offenders Act 1994 amended 52
Schedule 3 -- Amendments
consequential on Part 7
1. Bail Act 1982 amended 54
2. Biological Control Act 1986 amended 54
3. Bush Fires Act 1954 amended 55
4. Children's Court of Western Australia Act 1988
amended 55
5. Companies (Co-operative) Act 1943 amended 57
6. Coroners Act 1996 amended 58
7. Court Security and Custodial Services Act 1999
amended 59
8. Criminal Code Act 1913 amended 59
9. Criminal Law (Mentally Impaired Defendants) Act
1996 amended 60
10. Electoral Act 1907 amended 60
11. Evidence Act 1906 amended 60
12. Fair Trading Act 1987 amended 61
13. Family Court Act 1997 amended and consequential
amendment to Sentencing Legislation Amendment and
Repeal Act 2003 61
14. Firearms Act 1973 amended 62
15. Gold Corporation Act 1987 amended 63

page iv
Criminal Code Amendment Bill 2003

Contents

16. Guardianship and Administration Act 1990 amended 64
17. Interpretation Act 1984 amended 65
18. Misuse of Drugs Act 1981 amended 65
19. National Crime Authority (State Provisions) Act 1985
amended 69
20. Offshore Minerals Act 2003 amended 70
21. Petroleum Act 1967 amended 70
22. Petroleum Pipelines Act 1969 amended 71
23. Petroleum (Submerged Lands) Act 1982 amended 71
24. Police Act 1892 amended 72
25. Port Authorities Act 1999 amended 72
26. Prostitution Act 2000 amended 72
27. Road Traffic Act 1974 amended 73
28. Securities Industry Act 1975 amended 74
29. Sentencing Act 1995 amended 74
30. Statutory Corporations (Liability of Directors) Act
1996 amended 74
31. Western Australian Marine (Sea Dumping) Act 1981
amended 74
32. Witness Protection (Western Australia) Act 1996
amended 75

page v
Western Australia

LEGISLATIVE ASSEMBLY

(As amended in Committee)

Criminal Code Amendment Bill 2003

A Bill for

An Act to amend The Criminal Code and to consequentially amend
various other Acts.

The Parliament of Western Australia enacts as follows:

page 1
Criminal Code Amendment Bill 2003
Part 1 Preliminary

s. 1

Part 1 -- Preliminary
1. Short title
This Act may be cited as the Criminal Code Amendment
Act 2003.

5 2. Commencement
This Act comes into operation on the 28th day after the day on
which it receives the Royal Assent.

3. The Criminal Code amended
The amendments in this Act are to The Criminal Code* unless
10 otherwise indicated.
[* Reprint 10 as at 7 February 2003 (see the Schedule to the
Criminal Code Act 1913 appearing as Appendix B to the
Criminal Code Act Compilation Act 1913).]

page 2
Criminal Code Amendment Bill 2003
Amendments about child sex tourism Part 2

s. 4

Part 2 -- Amendments about child sex tourism
4. Section 187 inserted
After section 186 the following section is inserted --
"
5 187. Facilitating sexual offences against children outside
Western Australia
(1) In this section --
"prohibited conduct" means --
(a) the doing of an act in a place outside
10 Western Australia in respect of a child under
the age of 16 years which if done in Western
Australia would constitute an offence under
Chapter XXXI; or
(b) the commission of an offence under
15 Part IIIA Division 2 of the Crimes Act 1914
of the Commonwealth.
(2) A person --
(a) who does any act for the purpose of enabling or
aiding another person;
20 (b) who aids another person; or
(c) who counsels or procures another person,
to engage in prohibited conduct is guilty of a crime and
is liable to imprisonment for 20 years.
".

25 5. Sentence Administration Act 2003 consequentially amended
(1) The amendments in this section are to the Sentence
Administration Act 2003*.
[*Act No. 49 of 2003.]

page 3
Criminal Code Amendment Bill 2003
Part 2 Amendments about child sex tourism

s. 6

(2) Schedule 2 is amended as follows --
(a) by deleting "chapters" and inserting instead --
" provisions ";
(b) by inserting after paragraph (h) the following
5 paragraph --
"
(i) Section 187 -- Facilitating sexual offences
against children outside Western Australia.
".
10 6. Travel Agents Act 1985 consequentially amended
(1) The amendments in this section are to the Travel Agents
Act 1985*.
[* Reprinted as at 22 April 1997.
For subsequent amendments see 2001 Index to Legislation of
15 Western Australia, Table 1, p. 388.]
(2) After section 12(2)(b) the following paragraph is inserted --
"
(ba) the individual has been found guilty of an
offence under section 187 of The Criminal
20 Code or section 50DA or 50DB of the Crimes
Act 1914 of the Commonwealth;
".
(3) Section 12(4) is amended as follows:
(a) after paragraph (g) by deleting "or";
25 (b) after paragraph (h) by deleting the full stop and inserting
instead --
" ; or ";

page 4
Criminal Code Amendment Bill 2003
Amendments about child sex tourism Part 2

s. 6

(c) after paragraph (h) by inserting the following
paragraph --
"
(i) the body corporate, or any person referred to in
5 paragraph (e), (g) or (h), has been found guilty
of an offence under section 187 of The
Criminal Code or section 50DA or 50DB of the
Crimes Act 1914 of the Commonwealth.
".
10 (4) After section 21(4) the following subsection is inserted --
"
(4a) If it appears to the Chairman, whether or not as a result
of an objection lodged under subsection (1), that there
are grounds for believing that a licensee has been found
15 guilty of an offence under section 187 of The Criminal
Code or section 50DA or 50DB of the Crimes Act 1914
of the Commonwealth, the Chairman shall arrange for
the Tribunal to hold an inquiry into the truth of the
matter.
20 ".
(5) Section 21(6) is amended by inserting after "subsection (4)" --
" or (4a) ".
(6) After section 22(1) the following subsection is inserted --
"
25 (1a) If after holding an inquiry in relation to a licence the
Tribunal is satisfied that the licensee has been found
guilty of an offence under section 187 of The Criminal
Code or section 50DA or 50DB of the Crimes Act 1914
of the Commonwealth it --
30 (a) shall, under subsection (1)(e), disqualify the
licensee permanently --
(i) from being a licensee;

page 5
Criminal Code Amendment Bill 2003
Part 2 Amendments about child sex tourism

s. 6

(ii) from being concerned in the direction,
management or conduct of the business
of a travel agent; and
(iii) from being an officer of a body
5 corporate that is a licensee;
and
(c) may, in addition and subject to subsection (4),
take any one or more of the other courses of
action described in subsection (1).
10 ".
(7) Section 30(1) is amended as follows:
(a) by deleting "or" after paragraph (d);
(b) by inserting after paragraph (d) the following
paragraph --
15 "
(da) has been found guilty of an offence under
section 187 of The Criminal Code or section
50DA or 50DB of the Crimes Act 1914 of the
Commonwealth; or
20 ".

page 6
Criminal Code Amendment Bill 2003
Amendments about public order Part 3

s. 7

Part 3 -- Amendments about public order
7. Section 62 amended
Section 62 is amended as follows:
(a) in the first paragraph by inserting before "When" the
5 subsection designation "(1)";
(b) in the second paragraph by inserting before "It is" the
subsection designation "(2)";
(c) in the third paragraph by inserting before "An assembly"
the subsection designation "(3)";
10 (d) in the third paragraph by deleting "break and";
(e) in the fourth paragraph by inserting before "When" the
subsection designation "(4)".

8. Section 68 replaced
Section 68 is repealed and the following section is inserted
15 instead --
"
68. Being armed in a way that may cause fear
(1) A person who is or pretends to be armed with any
dangerous or offensive weapon or instrument in
20 circumstances that are likely to cause fear to any
person is guilty of a crime and is liable to
imprisonment for 7 years.
Summary conviction penalty: imprisonment for 3 years
or a fine of $12 000.
25 (2) It is a defence to a charge under subsection (1) to prove
that the accused person had lawful authority to be so
armed in such circumstances.

page 7
Criminal Code Amendment Bill 2003
Part 3 Amendments about public order

s. 9

(3) A court that convicts a person of an offence under
subsection (1) may make an order for the forfeiture to
the Crown, or the destruction or disposal, of the thing
in respect of which the offence was committed.
5 ".
9. Section 69 amended
Section 69 is amended as follows:
(a) in the first paragraph by inserting before "Any person"
the subsection designation "(1)";
10 (b) in the first paragraph by deleting "misdemeanour" and
inserting instead --
" crime ";
(c) in the first paragraph by deleting "one year" and
inserting instead --
15 " 2 years ";
(d) by inserting at the foot of the first paragraph --
"
Summary conviction penalty: $6 000.
";
20 (e) in the second paragraph by inserting before "It is" the
subsection designation "(2)".
10. Section 70 amended
Section 70 is amended as follows:
(a) by deleting "misdemeanour" and inserting instead --
25 " crime ";
(b) by deleting "one year" and inserting instead --
" 2 years ";
(c) by inserting at the foot of the section --
"
30 Summary conviction penalty: $6 000.
".

page 8
Criminal Code Amendment Bill 2003
Amendments about public order Part 3

s. 11

11. Section 71 replaced
Section 71 is repealed and the following section is inserted
instead --
"
5 71. Fighting in public causing fear
A person who in, or in view of, a public place takes
part in a fight with another person in circumstances that
are likely to cause fear to any person is guilty of a
crime, and is liable to imprisonment for 2 years.
10 Summary conviction penalty: $6 000.
".
12. Section 72 amended
Section 72 is amended as follows:
(a) by deleting "misdemeanour" and inserting instead --
15 " crime ";
(b) by deleting "3 years" and inserting instead --
" 2 years ";
(c) by inserting at the foot of the section --
"
20 Summary conviction penalty: $6 000.
".

13. Section 73 amended
Section 73 is amended as follows:
(a) by deleting "misdemeanour" and inserting instead --
25 " crime ";
(b) by deleting "one year" and inserting instead --
" 2 years ";

page 9
Criminal Code Amendment Bill 2003
Part 3 Amendments about public order

s. 14

5 14. Section 74 amended
Section 74 is amended as follows:
(a) by deleting "misdemeanour" and inserting instead --
" crime ";
(b) by deleting "one year" and inserting instead --
10 " 3 years ";
(c) by deleting the paragraph beginning with "If the
offence";
(d) by inserting at the foot of the section --
"
15 Summary conviction penalty: imprisonment for one
year or a fine of $4 000.
".

15. Sections 174 and 175 repealed
Sections 174 and 175 are repealed.

page 10
Criminal Code Amendment Bill 2003
Amendment about infanticide Part 4

s. 16

Part 4 -- Amendment about infanticide
16. Section 283 amended
Section 283 is amended by deleting "where the person is
convicted of an offence under this section upon an indictment
5 charging her with the crime of infanticide," and inserting
instead --
"
if the person commits the offence in circumstances
that, had the other person died, would constitute the
10 crime of infanticide,
".

page 11
Criminal Code Amendment Bill 2003
Part 5 Amendments about endangering life or health

s. 17

Part 5 -- Amendments about endangering life
or health
17. Section 208 repealed
Section 208 is repealed.

5 18. Sections 296 and 296A repealed
Sections 296 and 296A are repealed.

19. Sections 298, 299 and 300 repealed
Sections 298, 299 and 300 are repealed.

20. Section 302 repealed
10 Section 302 is repealed.

21. Sections 304 to 312 replaced by sections 304 and 305
Sections 304 to 312 are repealed and the following sections are
inserted instead --
"
15 304. Acts or omissions causing bodily harm or danger
(1) If a person omits to do any act that it is the person's
duty to do, or unlawfully does any act, as a result of
which --
(a) bodily harm is caused to any person; or
20 (b) the life, health or safety of any person is or is
likely to be endangered,
the person is guilty of a crime and is liable to
imprisonment for 5 years.
Summary conviction penalty: imprisonment for 2 years
25 or a fine of $8 000.

page 12
Criminal Code Amendment Bill 2003
Amendments about endangering life or health Part 5

s. 21

(2) If a person, with an intent to harm, omits to do any act
that it is the person's duty to do, or does any act, as a
result of which --
(a) bodily harm is caused to any person; or
5 (b) the life, health or safety of any person is or is
likely to be endangered,
the person is guilty of a crime and is liable to
imprisonment for 20 years.
(3) For the purposes of subsection (2) an intent to harm is
10 an intent to --
(a) unlawfully cause bodily harm to any person;
(b) unlawfully endanger the life, health or safety
of, any person;
(c) induce any person to deliver property to another
15 person;
(d) gain a benefit, pecuniary or otherwise, for any
person;
(e) cause a detriment, pecuniary or otherwise, to
any person;
20 (f) prevent or hinder the doing of an act by a
person who is lawfully entitled to do that act; or
(g) compel the doing of an act by a person who is
lawfully entitled to abstain from doing that act.

305. Setting dangerous things for people
25 (1) In this section --
"dangerous thing" means any article, device,
substance, or thing, that by reason of its nature
(whether chemical, electrical, electronic,
mechanical, or otherwise), situation, operation or
30 condition, may endanger the life, health or safety
of a person (whether a particular person or not);

page 13
Criminal Code Amendment Bill 2003
Part 5 Amendments about endangering life or health

s. 22

"set" includes construct and place.
(2) For the purposes of subsections (3) and (4), a person
wilfully sets a dangerous thing if the person sets the
thing --
5 (a) intending that the thing will kill or cause
grievous bodily harm to a person; or
(b) knowing or believing that the thing is likely to
kill or cause grievous bodily harm to a person.
(3) A person who wilfully sets a dangerous thing is guilty
10 of a crime and is liable to imprisonment for 3 years.
Summary conviction penalty: imprisonment for one
year or a fine of $4 000.
(4) A person who, knowing that a dangerous thing has
been wilfully set by another person, does not take
15 reasonable measures to make the thing harmless is
guilty of a crime and is liable to imprisonment for
3 years.
Summary conviction penalty: imprisonment for one
year or a fine of $4 000.
20 (5) A person is not criminally responsible under this
section for an act or omission in respect of a dangerous
thing set at night in a dwelling for the protection of the
occupants of the dwelling.
".

25 22. Section 306 inserted
Before section 313 the following section is inserted in
Chapter XXIX --
"
306. Female genital mutilation
30 (1) In this section --
"child" means a person under the age of 18 years;

page 14
Criminal Code Amendment Bill 2003
Amendments about endangering life or health Part 5

s. 22

"female genital mutilation" means --
(a) the excision or mutilation of the whole or a
part of the clitoris, the labia minora, the labia
majora, or any other part of the female
5 genital organs;
(b) infibulation or any procedure that involves
the sealing or suturing together of the labia
minora or the labia majora; or
(c) any procedure to narrow or close the vaginal
10 opening,
but does not include --
(d) a reassignment procedure within the
meaning of the Gender Reassignment
Act 2000 carried out on a person's genitals
15 by a medical practitioner within the meaning
of the Health Act 1911; or
(e) a medical procedure carried out for proper
medical purposes.
(2) A person who performs female genital mutilation on
20 another person is guilty of a crime and is liable to
imprisonment for 20 years.
(3) It is not a defence to a charge under subsection (2) that
the other person, or a parent or guardian of the other
person, consented to the mutilation.
25 (4) A person who takes a child from Western Australia, or
arranges for a child to be taken from Western
Australia, with the intention of having the child
subjected to female genital mutilation is guilty of a
crime and is liable to imprisonment for 10 years.
30 (5) In proceedings for an offence under subsection (4),
proof that --
(a) the accused person took a child, or arranged for
a child to be taken from Western Australia; and

page 15
Criminal Code Amendment Bill 2003
Part 5 Amendments about endangering life or health

s. 23

(b) the child, while out of Western Australia, was
subjected to female genital mutilation,
is proof, in the absence of evidence to the contrary, that
the accused person took the child, or arranged for the
5 child to be taken, from Western Australia, as the case
may be, with the intention of having the child subjected
to female genital mutilation.
".

23. Section 595B inserted
10 After section 595A the following section is inserted --
"
595B. Setting dangerous things for people: alternative
verdict
Upon an indictment charging a person with a crime
15 under section 305(3), the person may be convicted of a
crime under section 305(4) if that crime is established
by the evidence.
".

24. Other Acts consequentially amended
20 Schedule 1 has effect.

page 16
Criminal Code Amendment Bill 2003
Amendments about sexual servitude Part 6

s. 25

Part 6 -- Amendments about sexual servitude
25. Sections 331A, 331B, 331C and 331D inserted
After section 331 the following sections are inserted in
Chapter XXXI --
5 "
331A. Interpretation for s. 331B to 331D
In sections 331B to 331D --
"child" means a person under the age of 18 years;
"sexual service" means the use or display of the body
10 of the person providing the service for the sexual
arousal or sexual gratification of others;
"incapable person" has the meaning given by
section 330(1).

331B. Sexual servitude
15 A person who compels another person to provide or to
continue to provide a sexual service is guilty of a crime
and is liable --
(a) if the other person is a child or an incapable
person, to imprisonment for 20 years; or
20 (b) otherwise, to imprisonment for 14 years.

331C. Conducting business involving sexual servitude
(1) In this section --
"conducting a business" includes --
(a) taking part in the management of the
25 business;
(b) exercising control or direction over the
business; and
(c) providing finance for the business.

page 17
Criminal Code Amendment Bill 2003
Part 6 Amendments about sexual servitude

s. 25

(2) A person who conducts a business that involves any
other person being compelled to provide or to continue
to provide a sexual service is guilty of a crime and is
liable --
5 (a) if the other person is a child or an incapable
person, to imprisonment for 20 years; or
(b) otherwise, to imprisonment for 14 years.

331D. Deceptive recruiting for commercial sexual services
(1) A person who --
10 (a) offers a person who is neither a child nor an
incapable person (the "victim") employment or
some other form of engagement to provide
personal services;
(b) at the time of making the offer knows --
15 (i) that the victim will in the course of or in
connection with the employment or
engagement be asked or expected to
provide a commercial sexual service;
and
20 (ii) that the continuation of the employment
or engagement, or the victim's
advancement in the employment or
engagement, will be dependent on the
victim's preparedness to provide a
25 commercial sexual service;
and
(c) does not disclose that knowledge to the victim
at the time of making the offer,
is guilty of a crime and is liable to imprisonment for 7
30 years.

page 18
Criminal Code Amendment Bill 2003
Amendments about sexual servitude Part 6

s. 26

(2) A person who --
(a) offers a child or an incapable person (the
"victim") employment or some other form of
engagement to provide personal services; and
5 (b) at the time of making the offer knows --
(i) that the victim will in the course of or in
connection with the employment or
engagement be asked or expected to
provide a sexual service; and
10 (ii) that the continuation of the employment
or engagement, or the victim's
advancement in the employment or
engagement, will be dependent on the
victim's preparedness to provide a
15 sexual service,
is guilty of a crime and is liable to imprisonment for
20 years.
".

26. Other Acts consequentially amended
20 Schedule 2 has effect.

page 19
Criminal Code Amendment Bill 2003
Part 7 Amendments about the summary trial of indictable offences
Division 1 The Criminal Code amended
s. 27

Part 7 -- Amendments about the summary trial of
indictable offences
Division 1 -- The Criminal Code amended
27. Section 1 amended
5 Section 1(1) is amended by deleting the definition of the term
"indictable offence".

28. Section 3 replaced
Section 3 is repealed and the following section is inserted
instead --
10 "
3. Indictable offences, general provisions as to
(1) This section applies to offences in this Code and in any
other written law.
(2) An indictable offence is triable only on indictment,
15 unless this Code or another written law expressly
provides otherwise.
(3) A prosecution for an indictable offence, whether or not
it may be tried summarily, may be commenced at any
time, unless this Code or another written law expressly
20 provides otherwise.
(4) Section 51 of the Justices Act 1902 does not apply to a
complaint of an indictable offence, unless another
written law expressly provides otherwise.
(5) If a person is convicted by a court of petty sessions of
25 an indictable offence, the conviction is to be regarded
as being a conviction of a simple offence only.
".

page 20
Criminal Code Amendment Bill 2003
Amendments about the summary trial of indictable offences Part 7
The Criminal Code amended Division 1
s. 29

29. Section 5 replaced
Section 5 is repealed and the following section is inserted
instead --
"
5 5. "Summary conviction penalty", meaning and effect
(1) This section applies if --
(a) a provision of this Code, or another written law,
provides a summary conviction penalty for an
indictable offence; and
10 (b) a person (the "defendant") is charged before a
court of petty sessions (the "court") with
committing the indictable offence in
circumstances where the summary conviction
penalty applies to the offence (the "charge").
15 (2) Despite section 3(2), the court is to try the charge
summarily unless --
(a) on an application made by the prosecutor or the
defendant before the defendant pleads to the
charge, the court decides under subsection (3)
20 that the charge is to be tried on indictment; or
(b) this Code or another written law expressly
provides to the contrary.
(3) The court may decide the charge is to be tried on
indictment if and only if it considers --
25 (a) that the circumstances in which the offence was
allegedly committed are so serious that, if the
defendant were convicted of the offence, the
court would not be able to adequately punish
the defendant;
30 (b) that the charge forms part of a course of
conduct during which other offences were
allegedly committed by the defendant and the

page 21
Criminal Code Amendment Bill 2003
Part 7 Amendments about the summary trial of indictable offences
Division 1 The Criminal Code amended
s. 29

defendant is to be tried on indictment for one or
more of those other offences;
(c) that a co-accused of the defendant is to be tried
on indictment;
5 (d) that the charge forms part of a course of
conduct during which other offences were
allegedly committed by the defendant and
others and the defendant or one of the others is
to be tried on indictment for one or more of
10 those other offences; or
(e) that the interests of justice require that the
charge be dealt with on indictment.
(4) For the purposes of making a decision under
subsection (3) the court --
15 (a) may require the prosecutor to provide any
information the court needs and may hear
submissions from both the prosecutor and the
defendant; and
(b) may adjourn the proceedings.
20 (5) If under subsection (3) the court decides that the charge
is to be tried on indictment the court shall --
(a) give reasons for the decision; and
(b) deal with the defendant in accordance with
Part V of the Justices Act 1902.
25 (6) A decision cannot be made under subsection (3) after
the defendant has pleaded to the charge.
(7) A decision made under subsection (3) is final and
cannot be appealed.
(8) If the court convicts the defendant of the offence
30 charged (whether after a plea of guilty or otherwise),
the defendant is liable to the summary conviction

page 22
Criminal Code Amendment Bill 2003
Amendments about the summary trial of indictable offences Part 7
The Criminal Code amended Division 1
s. 30

penalty provided for the offence, unless the court
commits the defendant for sentence.
(9) If the court --
(a) convicts the defendant of the offence charged
5 after a plea of guilty; and
(b) considers that any sentence the court could
impose on the defendant for the offence would
not be commensurate with the seriousness of
the offence,
10 the court may commit the defendant to a court of
competent jurisdiction for sentence.
(10) A defendant who is committed for sentence under
subsection (9) is liable to the penalty with which the
offence is punishable on indictment.
15 (11) For the purposes of this section and of any summary
trial of the charge, the court must be constituted by a
magistrate alone, or if there is no magistrate and the
defendant consents, by 2 justices.
".

20 30. Section 360 amended
Section 360 is amended as follows:
(a) in the first paragraph by deleting "$600" and inserting
instead --
" $4 000 ";
25 (b) by inserting at the foot of the first paragraph --
"
Summary conviction penalty: a fine of $1 000.
";
(c) in the second paragraph by deleting "$1 000" and
30 inserting instead --
" $8 000 ";

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Part 7 Amendments about the summary trial of indictable offences
Division 1 The Criminal Code amended
s. 31

(d) by inserting at the foot of the second paragraph --
"
Summary conviction penalty: $2 000.
".

5 31. Section 361 amended
Section 361 is amended as follows:
(a) by deleting "$1 000" and inserting instead --
" $8 000 ";
(b) by inserting at the foot of the section --
10 "
Summary conviction penalty: $2 000.
".

32. Section 369 amended
Section 369 is amended by deleting the first paragraph.

15 33. Section 426 amended
Section 426(2), (2a), (3) and (4) are repealed and the following
subsections are inserted instead --
"
(2) Summary conviction penalty: for an offence to which
20 this subsection applies where the value of the property
in question does not exceed $10 000, unless
subsection (4) applies -- imprisonment for 2 years or a
fine of $8 000.
(3) Summary conviction penalty: for an offence --
25 (a) under section 378 or 414; or
(b) of attempting to commit, or inciting another
person to commit, an offence under section 378
or 414,

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The Criminal Code amended Division 1
s. 34

where the property in question is a motor vehicle,
unless subsection (4) applies -- imprisonment for 2
years or a fine of $8 000.
(4) Summary conviction penalty: for an offence --
5 (a) under section 378, 382, 383, 388 or 414; or
(b) of attempting to commit, or inciting another
person to commit, an offence under
section 378, 382, 383, 388 or 414,
where the value of the property in question does not
10 exceed $1 000 -- a fine of $2 000.
".

34. Section 426A repealed
Section 426A is repealed.

35. Section 427 replaced
15 Section 427 is repealed and the following section is inserted
instead --
"
427. Summary conviction penalty for certain offences of
a fraudulent nature
20 Summary conviction penalty: for an offence under
section 381, 384, 385, 386, 387, 389 or 390 --
(a) if the offence is punishable on indictment with
imprisonment for one year or less -- a fine of
$2 000;
25 (b) if the offence is punishable on indictment with
imprisonment for over one year but not more
than 2 years -- imprisonment for one year or a
fine of $4 000;

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Division 1 The Criminal Code amended
s. 36

(c) if the offence is punishable on indictment with
imprisonment for more than 2 years --
imprisonment for 2 years or a fine of $8 000.
".

5 36. Section 433 repealed
Section 433 is repealed.

37. Section 444 replaced
Section 444 is repealed and the following section is inserted
instead --
10 "
444. Criminal damage
Any person who wilfully and unlawfully destroys or
damages any property is guilty of a crime and is
liable --
15 (a) if the property is destroyed or damaged by fire,
to imprisonment for 14 years; or
(b) in any other case, to imprisonment for 10 years.
Summary conviction penalty: for an offence where --
(a) the property is not destroyed or damaged by
20 fire; and
(b) the amount of the injury done does not
exceed $25 000,
imprisonment for 3 years or a fine of $12 000.
".

25 38. Chapter XLVII repealed
Chapter XLVII is repealed.

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Amendments about the summary trial of indictable offences Part 7
The Criminal Code amended Division 1
s. 39

39. Section 552 replaced
Section 552 is repealed and the following section is inserted
instead --
"
5 552. Attempts to commit indictable offences
(1) Any person who attempts to commit an indictable
offence (the "principal offence") is guilty of --
(a) a crime if the principal offence is a crime; or
(b) a misdemeanour if the principal offence is a
10 misdemeanour.
(2) A person guilty of a crime or misdemeanour under
subsection (1) is liable --
(a) if the principal offence is punishable on
indictment with imprisonment for life -- to
15 imprisonment for 14 years;
(b) in any other case -- to half of the penalty with
which the principal offence is punishable on
indictment.
Summary conviction penalty: for an offence where the
20 principal offence may be dealt with summarily, the
lesser of --
(a) the penalty with which the principal offence
is punishable on summary conviction; or
(b) the penalty that is half of the penalty with
25 which the principal offence is punishable
on indictment.
(3) The summary conviction penalty in subsection (2) does
not apply to an offence to which section 426 applies.
".

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Part 7 Amendments about the summary trial of indictable offences
Division 1 The Criminal Code amended
s. 40

40. Section 553 replaced
Section 553 is repealed and the following section is inserted
instead --
"
5 553. Incitement to commit indictable offences
(1) Any person who, intending that an indictable offence
(the "principal offence") be committed, incites
another person to commit the principal offence, is
guilty of --
10 (a) a crime if the principal offence is a crime; or
(b) a misdemeanour if the principal offence is a
misdemeanour.
(2) A person guilty of a crime or misdemeanour under
subsection (1) is liable --
15 (a) if the principal offence is punishable on
indictment with imprisonment for life -- to
imprisonment for 14 years;
(b) in any other case -- to half of the penalty with
which the principal offence is punishable on
20 indictment.
Summary conviction penalty: for an offence where the
principal offence may be dealt with summarily, the
lesser of --
(a) the penalty with which the principal offence
25 is punishable on summary conviction; or
(b) the penalty that is half of the penalty with
which the principal offence is punishable
on indictment.
(3) The summary conviction penalty in subsection (2) does
30 not apply to an offence to which section 426 applies.
".

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The Criminal Code amended Division 1
s. 41

41. Sections 554 and 555 repealed
Sections 554 and 555 are repealed.

42. Section 558 replaced
Section 558 is repealed and the following section is inserted
5 instead --
"
558. Conspiracy to commit indictable offences
(1) Any person who conspires with another person --
(a) to commit an indictable offence (the "principal
10 offence"); or
(b) to do any act or make any omission in any part
of the world which, if done or made in Western
Australia, would be an indictable offence (the
"principal offence") and which is an offence
15 under the laws in force in the place where it is
proposed to be done or made,
is guilty of --
(c) a crime if the principal offence is a crime; or
(d) a misdemeanour if the principal offence is a
20 misdemeanour.
(2) A person guilty of a crime or misdemeanour under
subsection (1) is liable --
(a) if the principal offence is punishable on
indictment with imprisonment for life -- to
25 imprisonment for 14 years;
(b) in any other case -- to half of the penalty with
which the principal offence is punishable on
indictment.

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Part 7 Amendments about the summary trial of indictable offences
Division 1 The Criminal Code amended
s. 43

Summary conviction penalty: for an offence where the
principal offence may be dealt with summarily --
the penalty with which the principal offence is
punishable on summary conviction.
5 (3) Without limiting subsection (1), the application of
subsection (1) extends to a conspiracy under which an
offence is to be committed, or an act or omission done
or made, by a person other than the persons conspiring
with each other.
10 ".

43. Section 559 repealed
Section 559 is repealed.

44. Section 562 replaced
Section 562 is repealed and the following section is inserted
15 instead --
"
562. Accessories after the fact to indictable offences
(1) Any person who becomes an accessory after the fact to
an indictable offence (the "principal offence") is
20 guilty of --
(a) a crime if the principal offence is a crime; or
(b) a misdemeanour if the principal offence is a
misdemeanour.
(2) A person guilty of a crime or misdemeanour under
25 subsection (1) is liable --
(a) if the principal offence is punishable on
indictment with imprisonment for life -- to
imprisonment for 14 years;
(b) in any other case -- to half of the penalty with
30 which the principal offence is punishable on
indictment.

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Amendments about the summary trial of indictable offences Part 7
The Criminal Code amended Division 1
s. 45

Summary conviction penalty: for an offence where the
principal offence may be dealt with summarily, the
lesser of --
(a) the penalty with which the principal offence
5 is punishable on summary conviction; or
(b) the penalty that is half of the penalty with
which the principal offence is punishable on
indictment.
".
10 45. Section 563 repealed
Section 563 is repealed.
46. Heading to Chapter LXI amended
The heading to Chapter LXI is amended by deleting
": Preliminary proceedings".
15 47. Section 572 repealed
Section 572 is repealed.
48. Section 574 repealed
Section 574 is repealed.
49. Section 618 amended
20 Section 618(3) is amended by deleting "section 100(1)" and
inserting instead --
" section 100(3) ".

50. Section 673 repealed
Section 673 is repealed.

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Criminal Code Amendment Bill 2003
Part 7 Amendments about the summary trial of indictable offences
Division 2 Justices Act 1902 consequentially amended
s. 51

Division 2 -- Justices Act 1902 consequentially amended
51. The Act amended by this Division
The amendments in this Division are to the Justices Act 1902*.
[* Reprinted as at 8 October 2001.
5 For subsequent amendments see Acts Nos. 53 of 2000 and
27 of 2002.]

52. Section 97B amended
Section 97B is amended as follows:
(a) by deleting the full stop after the definition of "contempt
10 offence" and inserting a semicolon instead;
(b) by inserting the following definition --
"
"either way charge" means a charge of an indictable
offence that, by virtue of section 5 of The Criminal
15 Code, or another written law, may be tried either
on indictment or summarily.
".

53. Sections 98, 99 and 100 replaced
Sections 98, 99 and 100 are repealed and the following sections
20 are inserted instead --
"
98. Procedure on first appearance
When the defendant appears for the first time before
the justices on the charge, the justices shall --
25 (a) read the charge to the defendant; and
(b) if necessary, explain to the defendant the
meaning of the charge,

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Amendments about the summary trial of indictable offences Part 7
Justices Act 1902 consequentially amended Division 2
s. 53

and then --
(c) if the charge is an either way charge -- proceed
in accordance with section 99; or
(d) if the charge must be dealt with on
5 indictment -- proceed in accordance with
section 100.

99. Either way charges
(1) This section applies if the charge is an either way
charge.
10 (2) If section 5 of The Criminal Code applies to the charge,
the justices must give the prosecutor and the defendant
an opportunity to apply under that section for the
charge to be tried on indictment.
(3) Unless the justices decide that the charge is to be tried
15 on indictment, the justices shall deal with the charge
summarily either --
(a) subject to subsection (5), on the day the
defendant appears for the first time; or
(b) on another day.
20 (4) If the justices decide that the charge is to be tried on
indictment, the justices shall proceed in accordance
with section 100.
(5) If, in relation to a charge referred to in subsection (3),
the defendant, having been served with a summons for
25 the charge --
(a) appears at the time and place appointed by the
summons; and
(b) pleads not guilty to the charge,
the justices shall not proceed to hear and determine the
30 charge at the time referred to in paragraph (a) unless
the prosecutor consents to them doing so.

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Part 7 Amendments about the summary trial of indictable offences
Division 2 Justices Act 1902 consequentially amended
s. 53

100. Charges that are to be tried on indictment
(1) This section applies if --
(a) the charge must be tried on indictment; or
(b) the justices have decided that the charge, being
5 an either way charge, is to be tried on
indictment.
(2) The justices shall --
(a) tell the defendant that he or she is not required
to plead to the charge;
10 (b) cause the defendant to be given a notice in the
prescribed form explaining the procedures in
this Part; and
(c) adjourn the complaint.
(3) As soon as practicable after the complaint is adjourned,
15 the prosecution shall, unless an order is made under
subsection (4), file with the clerk of petty sessions and
serve on the defendant --
(a) a statement of the material facts relevant to the
charge;
20 (b) a copy of --
(i) any statement signed by the defendant;
(ii) any record of interview with the
defendant (signed or unsigned by the
defendant),
25 that is in the possession of the prosecution;
(c) notice of any tape or videotape recording of
conversations between the defendant and a
person in authority that is in the possession of
the prosecution; and
30 (d) if the defendant said anything to a member of the
Police Force that is material to the charge, a
written version of the substance of what was said.

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Amendments about the summary trial of indictable offences Part 7
Justices Act 1902 consequentially amended Division 2
s. 54

(4) If, on the application of the prosecution, the justices are
satisfied that at that stage of proceedings --
(a) the prosecution is unable to comply with
subsection (1); or
5 (b) it is not practicable for the prosecution to
prepare a statement of the material facts,
the justices may order that compliance with
subsection (3) by the prosecution be dispensed with.
".

10 54. Section 101 amended
Section 101(1) is amended by deleting "section 100(1)" and
inserting instead --
" section 100(3) ".

55. Section 101A amended
15 Section 101A(a) is amended by deleting "section 100(2)" and
inserting instead --
" section 100(4) ".

56. Section 107 inserted
After section 106 the following section is inserted --
20 "
107. Committal for sentence, matters to be recorded
(1) Upon committing a defendant to a court of competent
jurisdiction for sentence the justices must record the
following matters on the complaint --
25 (a) the defendant's plea before the justices;
(b) if the justices convicted the defendant, the fact
that they did so;
(c) the date of the committal.

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Part 7 Amendments about the summary trial of indictable offences
Division 3 Consequential amendments
s. 57

(2) A copy of a complaint certified as a true copy by a
clerk of petty sessions is, in the absence of evidence to
the contrary, evidence of its contents and of any matter
recorded on it in accordance with subsection (1).
5 ".

57. Section 137 amended
Section 137(3) is repealed.

Division 3 -- Consequential amendments
58. Other Acts consequentially amended
10 Schedule 3 has effect.

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Other amendments Part 8

s. 59

Part 8 -- Other amendments
59. Section 81 replaced
Section 81 is repealed and the following section is inserted
instead --
5 "
81. Disclosing official secrets
(1) In this section --
"disclosure" includes --
(a) any publication or communication; and
10 (b) in relation to information in a record, parting
with possession of the record;
"government contractor" means a person who is not
employed in the Public Service but who provides,
or is employed in the provision of, goods or
15 services for the purposes of --
(a) the State of Western Australia;
(b) the Public Service; or
(c) the Police Force of Western Australia;
"information" includes false information, opinions
20 and reports of conversations;
"official information" means information, whether in
a record or not, that comes to the knowledge of, or
into the possession of, a person because the person
is a public servant or government contractor;
25 "public servant" means a person employed in the
Public Service;
"unauthorised disclosure" means --
(a) the disclosure by a person who is a public
servant or government contractor of official
30 information in circumstances where the

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Part 8 Other amendments

s. 60

person is under a duty not to make the
disclosure; or
(b) the disclosure by a person who has been a
public servant or government contractor of
5 official information in circumstances where,
were the person still a public servant or
government contractor, the person would be
under a duty not to make the disclosure.
(2) A person who, without lawful authority, makes an
10 unauthorised disclosure is guilty of a crime and is
liable to imprisonment for 3 years.
Summary conviction penalty: imprisonment for one
year or a fine of $4 000.
".

15 60. Section 215 inserted
After section 214 the following section is inserted --
"
215. Interfering with corpse to hinder inquiry
(1) In this section a person interferes with the corpse of a
20 person if he or she --
(a) conceals the corpse, whether by burying or
destroying it or otherwise; or
(b) damages or mutilates or otherwise interferes
with the corpse.
25 (2) Any person who, without lawful justification or excuse,
the proof of which lies on him or her, interferes with
the corpse of a person with intent to prevent or
prejudice any investigation into the circumstances
surrounding the death of the person is guilty of a crime
30 and is liable to imprisonment for 10 years.
".

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Other amendments Part 8

s. 61

61. Amendments about masters etc. and consequential
amendment to the Evidence Act 1906
(1) Section 245 is amended by deleting "or in the relation of master
or servant,".
5 (2) Section 257 is amended as follows:
(a) by deleting "or master";
(b) by deleting ", pupil, or apprentice," and inserting
instead --
" or pupil ".
10 (3) Section 264 is repealed.
(4) Section 303 is repealed.
(5) Section 372(3) is repealed.
(6) The Evidence Act 1906* Second Schedule Part 1 is amended by
deleting the entry relating to an offence under section 303 of
15 The Criminal Code.
[* Reprinted as at 4 January 2001.
For subsequent amendments see 2001 Index to Legislation of
Western Australia, Table 1, p. 121 and Acts Nos. 3 and 27 of 2002.]

62. Section 321 amended
20 (1) Section 321(5) is repealed and the following subsection is
inserted instead --
"
(5) A person who procures, incites, or encourages a child
to do an indecent act is guilty of a crime and is liable to
25 the punishment in subsection (8).
".
(2) Section 321(10) is amended by deleting ", (4) or (6)" and
inserting instead --
" or (4) ".

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Part 8 Other amendments

s. 63

(3) After section 321(10) the following subsections are inserted --
"
(11) It is a defence to a charge under subsection (5) to
prove --
5 (a) that the indecent act was a private conjugal act;
or
(b) that the accused person intended the indecent
act to be a private conjugal act.
(12) For the purposes of subsection (11) an indecent act is a
10 private conjugal act if --
(a) it is not committed in the presence of, or
viewed by, any person other than a person
lawfully married to the child; and
(b) no photograph, film, videotape or other
15 recording is made of it other than for the
exclusive and private use of the child and a
person lawfully married to the child.
(13) It is a defence to a charge under subsection (6) to
prove --
20 (a) that the accused person was lawfully married to
the child; and
(b) that the indecent recording was made for the
exclusive and private use of the child and the
accused person.
25 ".

63. Section 354 amended
After section 354(4) the following paragraph is inserted --
"
(4a) To publish in good faith, for the information of
30 the public, a fair report of the public proceedings
of any Royal Commission established under the
law of the Commonwealth or a State or Territory

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s. 64

of the Commonwealth, or by or under the
authority of Her Majesty, or of the Governor in
Council of the Commonwealth, the Governor in
Council of any State of the Commonwealth, or
5 the Administrator in Council of any Territory of
the Commonwealth;
".
64. Section 370 amended
(1) Section 370 is amended by inserting before the paragraph
10 beginning "The term "animal" " the following paragraph --
"
Animals, which are the property of any person, are
capable of being stolen while they are being reared by
aquaculture in a place that is the property of, or under
15 the control of, any person.
".
(2) Section 370 is amended in the definition of the term "animal"
by inserting after "creature" --
" and any living aquatic organism ".
20 (3) Section 370 is amended by deleting the paragraph beginning
"Oysters".
65. Section 399A repealed
Section 399A is repealed.
66. Section 401 amended
25 (1) Section 401(1) is amended by deleting the summary conviction
penalty and inserting instead --
"
Summary conviction penalty:
(a) in a case to which paragraph (a) applies where
30 the only circumstance of aggravation is that the
offender is in company with another person or
other persons -- imprisonment for 3 years or a
fine of $12 000;

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s. 67

(b) in a case to which paragraph (b) applies --
imprisonment for 3 years or a fine of
$12 000; or
(c) in a case to which paragraph (c) applies --
5 imprisonment for 2 years or a fine of $8 000.
".
(2) Section 401(2) is amended by deleting the summary conviction
penalty and inserting instead --
"
10 Summary conviction penalty (subject to subsection (3)):
(a) in a case to which paragraph (a) applies where
the only circumstance of aggravation is that the
offender is in company with another person or
other persons -- imprisonment for 3 years or a
15 fine of $12 000;
(b) in a case to which paragraph (b) applies --
imprisonment for 3 years or a fine of
$12 000; or
(c) in a case to which paragraph (c) applies --
20 imprisonment for 2 years or a fine of $8 000.
".
67. Section 407 amended
Section 407 is amended by deleting "a crime" in paragraphs (a),
(d) and (e) and in each place inserting instead --
25 " an offence ".
68. Section 414 amended
Section 414 is amended by deleting the second paragraph and
inserting the following paragraph instead --
"
30 The offender is liable --
(a) if the court is satisfied as to the act by means of
which the property was obtained, to the penalty

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Other amendments Part 8

s. 69

provided for the offence constituted by that act,
or to imprisonment for 14 years, whichever is
the lesser;
(b) otherwise, to imprisonment for 14 years.
5 ".

69. Sections 436 and 437 replaced
Sections 436 and 437 are repealed and the following sections
are inserted instead --
"
10 436. Unlawful fishing
Any person who unlawfully uses any article or
substance for the purpose of taking any aquatic
organism that is being reared by aquaculture in a place
that is the property of, or under the control of, any
15 person is guilty of a simple offence and is liable to
imprisonment for 2 years or a fine of $8 000.

437. Unlawfully taking fish etc.
Any person who unlawfully takes or destroys, or
attempts to take or destroy, any aquatic organism that
20 is --
(a) being reared by aquaculture in a place that is
the property of, or under the control of, any
person; or
(b) in any water that is private property or in which
25 there is a private right of fishery,
is guilty of a simple offence and is liable to
imprisonment for 2 years or a fine of $8 000.
".

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Part 8 Other amendments

s. 70

70. Section 570B amended
(1) Section 570B(1) is amended in the definition of "authorised
person" as follows:
(a) by inserting after paragraph (c) the following
5 paragraph --
"
(ca) a legal practitioner acting for or representing
the State;
";
10 (b) by inserting after paragraph (db) the following
paragraph --
"
(dc) a coroner or a person acting at the direction
of a coroner;
15 ".
(2) After section 570B(3)(a) the following paragraph is inserted --
"
(ab) the videotape is played for purposes connected
with proceedings before a coroner;
20 ".
(3) Section 570B(5) is amended by deleting "(d), (da), (db)" and
inserting instead --
" (ca), (d), (da), (db), (dc) ".

71. Heading to Chapter LXI amended
25 The heading to Chapter LXI is amended by deleting ": Bail".

72. Section 584 amended
After section 584(6) the following subsection is inserted --
"
(6a) If any property is co-owned by a body of persons with
30 a collective name, it is sufficient in an indictment in

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Other amendments Part 8

s. 73

which it is necessary to mention the owners of the
property to use the collective name without naming any
one of the persons.
".

5 73. Section 596 amended
Section 596 is amended in the Table Column 1 by deleting
"322(4)".

74. Section 599 amended
(1) Section 599(1) is amended by inserting after "those sections" --
10 " or under section 69 of the Police Act 1892 ".
(2) Section 599(2) is amended by inserting after "those sections" --
" or under section 69 of the Police Act 1892 ".

75. Section 635 replaced
Section 635 is repealed and the following section is inserted
15 instead --
"
635. Accused's presence at proceedings
(1) In this section --
"proceedings" includes proceedings under section
20 611A, at trial, and under the Bail Act 1982, the
Evidence Act 1906, the Sentencing Act 1995 or the
Young Offenders Act 1994.
(2) This section applies whether an accused person is
being tried alone or with others.
25 (3) Proceedings that relate to an accused person must take
place in his or her presence unless this section or the
Sentencing Act 1995 provides otherwise.

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s. 75

(4) If an accused person so conducts himself or herself as
to render the continuance of proceedings in the
person's presence impracticable, the court may order
the person to be removed and may direct the
5 proceedings to proceed in the person's absence.
(5) If 2 or more accused persons are charged jointly and
the court is satisfied that any of them is unable to be
present at any proceedings by reason of the person's
illness or infirmity, the court may order that the
10 proceedings may continue in the absence of that person
during that part of the proceedings as may be necessary
if it is satisfied --
(a) the interests of the accused person will not be
prejudiced by the proceedings proceeding in his
15 or her absence; and
(b) the interests of justice require that the
proceedings should proceed in the person's
absence.
(6) If an accused person is charged alone and the court is
20 satisfied the person is unable to be present at any
proceedings by reason of the person's illness or
infirmity, the court may permit the person to be absent
during that part of the proceedings as may be necessary
if it is satisfied --
25 (a) the interests of the accused person will not be
prejudiced by the proceedings proceeding in his
or her absence; and
(b) the interests of justice require that the
proceedings should proceed in the person's
30 absence.
(7) If an accused person absents himself or herself during
proceedings without leave, the court may direct a
warrant to be issued to arrest the accused person and
bring him or her before the court forthwith.

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s. 76

(8) Nothing in this section prevents a court from taking
evidence from an accused person by video link or
audio link under section 121 of the Evidence Act 1906.
".

5 76. Section 635A amended
(1) Section 635A(2) is amended as follows:
(a) by deleting the full stop after paragraph (c) and inserting
instead a semicolon;
(b) by inserting after paragraph (c) the following
10 paragraph --
"
(d) make an order prohibiting or restricting the
publication outside the court-room of any
matter likely to lead members of the public to
15 identify a victim of an offence with which a
trial or other criminal proceeding is concerned.
".
(2) After section 635A(2) the following subsection is inserted --
"
20 (2a) An order under subsection (1)(d) does not prohibit the
publication of matter identifying a victim if --
(a) the victim consents to the publication of the
matter before it is published; and
(b) at the time of consenting to the publication, the
25 victim has reached 18 years of age and is not a
person who, because of mental impairment, is
incapable of making reasonable judgments in
respect of the publication of such matter.
".

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Schedule 1 Amendments consequential on Part 5

Schedule 1 -- Amendments consequential on Part 5
[s. 24]

15 2. Corruption and Crime Commission Act 2003 amended
(1) The amendments in this clause are to the Corruption and Crime
Commission Act 2003*.
[* Reprint 1 as at 5 January 2004]
(2) Schedule 1 item 1 is amended as follows:
20 (a) by deleting the entries relating to offences under sections 296,
296A and 298 of The Criminal Code;
(b) by inserting before the entry relating to section 332 of The
Criminal Code the following entries --
"
25 s. 304 Acts or omissions causing bodily harm or
danger
s. 305 Setting dangerous things for people
".

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3. Criminal Law (Mentally Impaired Defendants) Act 1996 amended
(1) The amendments in this clause are to the Criminal Law (Mentally
Impaired Defendants) Act 1996*.
[* Reprinted as at 21 June 2002.
5 For subsequent amendments see Act No. 27 of 2002.]
(2) Schedule 1 item 1 is amended as follows:
(a) by deleting the entries relating to offences under sections 296,
296A, 298 and 299 of The Criminal Code;
(b) by inserting after the entry relating to section 301 of The
10 Criminal Code the following entry --
"
s. 304(2) Acts or omissions, with intent to
harm, causing bodily harm or danger
".
4. Evidence Act 1906 amended
(1) The amendments in this clause are to the Evidence Act 1906*.
15 [* Reprinted as at 4 January 2001.
For subsequent amendments see 2000 Index to Legislation of
Western Australia, Table 1, p. 121 and Acts Nos. 3 and 27 of 2002.]
(2) The Second Schedule Part 1 is amended by deleting the entries
relating to offences under sections 296, 296A, 298, 299, 300, 302,
20 304, 305, 306, 307, 308, 309 and 310 of The Criminal Code.
(3) The Second Schedule Part 1 is amended by inserting before the entry
relating to section 313 of The Criminal Code the following entries --
"
s. 304 Acts or omissions causing bodily harm or
danger
s. 305 Setting dangerous things for people
".
25 (4) Schedule 7 Part C is amended by deleting the entries relating to
sections 298, 299, 300, 302, 304 and 306.

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Schedule 1 Amendments consequential on Part 5

(5) Schedule 7 Part C is amended by inserting after the entry relating to
section 301 the following entry --
"
304 Acts or omissions causing bodily harm or
danger
".

5 5. Young Offenders Act 1994 amended
(1) The amendments in this clause are to the Young Offenders Act 1994*.
[* Reprinted as at 8 December 2000.
For subsequent amendments see 2000 Index to Legislation of
Western Australia, Table 1, p. 423.]
10 (2) Schedule 1 item 1 is amended by deleting the entries relating to
offences under sections 300, 305 and 306 of The Criminal Code and
inserting instead the following entries --
"
s. 304(2) Acts or omissions, with intent to harm,
causing bodily harm or danger
s. 305 Setting dangerous things for people, if
injury to a person is actually caused
".
15 (3) Schedule 2 item 1 is amended as follows:
(a) by deleting the entries relating to offences under sections 296,
296A, 298 and 299 of The Criminal Code;
(b) by inserting after the entry relating to section 301 of The
Criminal Code the following entry --
20 "
s. 304(2) Acts or omissions, with intent to
harm, causing bodily harm or danger
".

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Criminal Code Amendment Bill 2003

Amendments consequential on Part 6 Schedule 2

Schedule 2 -- Amendments consequential on Part 6
[s. 26]

1. Bail Act 1982 amended
(1) The amendments in this clause are to the Bail Act 1982*.
5 [* Reprinted as at 27 August 1999.
For subsequent amendments see 2001 Index to Legislation of
Western Australia, Table 1, p. 27 and Acts Nos. 6 and 27 of 2002.]
(2) Schedule 2 item 1 is amended by inserting after the entry relating to
section 326 of The Criminal Code the following entries --
10 "
s. 331B Sexual servitude
s. 331C Conducting business involving sexual
servitude
s. 331D Deceptive recruiting for commercial
sexual services
".
2. Criminal Law (Mentally Impaired Defendants) Act 1996 amended
(1) The amendments in this clause are to the Criminal Law (Mentally
Impaired Defendants) Act 1996*.
15 [* Reprinted as at 21 June 2002.
For subsequent amendments see Act No. 27 of 2002.]
(2) Schedule 1 item 1 is amended by inserting after the entry relating to
section 330 of The Criminal Code the following entries --
"
s. 331B Sexual servitude
s. 331C Conducting business involving sexual
servitude
s. 331D Deceptive recruiting for commercial
sexual services
20 ".

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3. Evidence Act 1906 amended
(1) The amendments in this clause are to the Evidence Act 1906*.
[* Reprinted as at 4 January 2001.
For subsequent amendments see 2001 Index to Legislation of
5 Western Australia, Table 1, p. 121 and Acts Nos. 3 and 27 of 2002.]
(2) The Second Schedule Part 1 is amended by inserting after the entry
relating to section 330 of The Criminal Code the following entries --
"
s. 331B Sexual servitude
s. 331C Conducting business involving sexual
servitude
s. 331D Deceptive recruiting for commercial
sexual services
".

10 4. Young Offenders Act 1994 amended
(1) The amendments in this clause are to the Young Offenders Act 1994*.
[* Reprinted as at 8 December 2000.
For subsequent amendments see 2000 Index to Legislation of
Western Australia, Table 1, p. 423.]
15 (2) Schedule 1 item 1 is amended by inserting after the entry relating to
section 330(3) of The Criminal Code the following entries --
"
s. 331B Sexual servitude
s. 331C Conducting business involving sexual
servitude
s. 331D Deceptive recruiting for commercial
sexual services
".
(3) Schedule 2 item 1 is amended by inserting after the entry relating to
20 section 326 of The Criminal Code the following entries --
"
s. 331B Sexual servitude

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s. 331C Conducting business involving sexual
servitude
s. 331D Deceptive recruiting for commercial
sexual services
".

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Criminal Code Amendment Bill 2003

Schedule 3 Amendments consequential on Part 7

Schedule 3 -- Amendments consequential on Part 7
[s. 58]

1. Bail Act 1982 amended
(1) The amendments in this clause are to the Bail Act 1982*.
5 [* Reprinted as at 27 August 1999.
For subsequent amendments see 2000 Index to Legislation of
Western Australia, Table 1, p. 27 and Acts Nos. 6 and 27 of 2002.]
(2) Section 20(3)(a) is deleted and the following paragraph is inserted
instead --
10 "
(a) if the offence is one that may be tried on
indictment, before a court decides that it is to
be tried on indictment;
".

15 2. Biological Control Act 1986 amended
(1) The amendments in this clause are to the Biological Control
Act 1986*.
[* Act No. 106 of 1986.
For subsequent amendments see 2001 Index to Legislation of
20 Western Australia, Table 1, p. 33.]
(2) Section 45(2) is amended as follows:
(a) by deleting "an indictable offence" and inserting instead --
" a crime ";
(b) by inserting at the foot of the section --
25 "
Summary conviction penalty: imprisonment for one
year.
".
(3) Section 45(3) and (4) are repealed.

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3. Bush Fires Act 1954 amended
(1) The amendments in this clause are to the Bush Fires Act 1954*.
[* Reprinted as at 20 January 1997.
For subsequent amendments see 2001 Index to Legislation of
5 Western Australia, Table 1, p. 41 and Act No. 38 of 2002.]
(2) Section 32 is amended by deleting "an indictable offence" and
inserting instead --
" a crime ".
4. Children's Court of Western Australia Act 1988 amended
10 (1) The amendments in this clause are to the Children's Court of Western
Australia Act 1988*.
[* Reprinted as at 25 August 2000.
For subsequent amendments see Western Australian Legislation
Information Tables for 2002, Table 1, p. 54.]
15 (2) Section 19B(1), (2) and (3) are repealed and the following subsections
are inserted instead --
"
(1) If a child is charged with an indictable offence and --
(a) the offence is such that, if an adult were
20 charged with it, it must be tried on indictment;
or
(b) the circumstances of the alleged offence are
such that --
(i) if an adult were charged with it, it could,
25 by virtue of section 5 of The Criminal
Code, or another written law, be tried
either on indictment or summarily; and
(ii) the Court, having complied with section
99(2) of the Justices Act 1902, decides
30 that it is to be tried on indictment,
the child may elect to be tried on indictment by the
Supreme Court or the District Court (as the case
requires), and the Court shall so inform the child.

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(2) If a child is charged with an indictable offence and the
circumstances of the alleged offence are such that the
child is not entitled to make an election under
subsection (1), the Court shall, subject to the provisions
5 referred to in section 19(1), hear and determine the
charge summarily.
(3) If a child makes an election under subsection (1) --
(a) the Court, under Part V of the Justices Act
1902, shall deal with the charge, commit the
10 child to the Supreme Court or the District Court
(as the case requires) and exercise the
jurisdiction and powers conferred on justices;
and
(b) the Justices Act 1902 applies,
15 as if the charge were one that must be tried on
indictment.
".
(3) Section 19B(4) is amended by deleting ", and the charge, if an adult
were similarly charged before a court of petty sessions, could not be
20 dealt with summarily".
(4) Section 19C(1) is repealed and the following subsection is inserted
instead --
"
(1) Notwithstanding section 19B, if --
25 (a) the Court is satisfied --
(i) that a person who has reached 18 years
of age (the "adult") is charged with the
same indictable offence as a child or
with an indictable offence arising from
30 the same acts, omissions, or
circumstances as are alleged against a
child charged with an indictable
offence; and

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(ii) that the adult is to be tried on indictment
for the offence;
and
(b) the Court is for any reason of the opinion that it
5 is appropriate that the child be dealt with on
indictment jointly with the adult,
then --
(c) the Court, under Part V of the Justices Act
1902, shall deal with the charge, commit the
10 child to the court where the adult is to be tried
and exercise the jurisdiction and powers
conferred on justices; and
(d) the Justices Act 1902 applies,
as if the charge were one that must be tried on
15 indictment.
".
(5) Section 19C(3) is amended as follows:
(a) by deleting "subsection (1)(d)" and inserting instead --
" subsection (1) ";
20 (b) by deleting "section 19B(3) or (4)" and inserting instead --
" section 19B(2) or (4) ".
5. Companies (Co-operative) Act 1943 amended
(1) The amendments in this clause are to the Companies (Co-operative)
Act 1943*.
25 [* Reprinted as at 14 January 2000.
For subsequent amendments see 2001 Index to Legislation of
Western Australia, Table 1, p. 60 and Gazette 28 June 2002
p. 3052-4.]
(2) Section 280(1) is amended as follows:
30 (a) by deleting "liable on conviction on indictment to
imprisonment for a term not exceeding one year, or on

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Schedule 3 Amendments consequential on Part 7

summary conviction to imprisonment for a term not
exceeding 6 months." and inserting instead --
"
guilty of a misdemeanour and liable to imprisonment
5 for one year.
";
(b) by inserting at the foot of the subsection --
"
Summary conviction penalty: $6 000.
10 ".
(3) Section 281(3) is amended by deleting "liable on conviction on
indictment to imprisonment for a term not exceeding one year." and
inserting instead --
"
15 guilty of a misdemeanour and liable to imprisonment
for one year.
".
(4) Section 425 is amended as follows:
(a) by deleting the passage beginning with "and be liable on
20 summary conviction" and ending with "The Criminal Code";
(b) by inserting at the foot of the section --
"
Summary conviction penalty: $6 000.
".

25 6. Coroners Act 1996 amended
(1) The amendments in this clause are to the Coroners Act 1996*.
[* Reprinted as at 3 August 2001.
For subsequent amendments see 2001 Index to Legislation of
Western Australia, Table 1, p. 77.]

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(2) Section 46A is repealed and the following section is inserted
instead --
"
46A. Disobeying coroner
5 A person who does not obey a summons, order, or
direction of a coroner issued or given under
section 46(1) is guilty of a crime and is liable to
imprisonment for 5 years and to a fine of $100 000.
Summary conviction penalty: imprisonment for 2 years
10 and a fine of $40 000.
".

7. Court Security and Custodial Services Act 1999 amended
(1) The amendments in this clause are to the Court Security and
Custodial Services Act 1999*.
15 [* Reprinted as at 13 July 2001.]
(2) Section 90(1) is amended by inserting at the foot of the subsection --
"
Summary conviction penalty: imprisonment for 2 years
or a fine of $8 000.
20 ".
(3) Section 90(3) is repealed.

8. Criminal Code Act 1913 amended
(1) The amendment in this clause is to the Criminal Code Act 1913*.
[* Reprint 10 as at 7 February 2003 (see Appendix B to the Criminal
25 Code Act Compilation Act 1913).]
(2) Section 4 is amended by deleting "indictable".

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Schedule 3 Amendments consequential on Part 7

9. Criminal Law (Mentally Impaired Defendants) Act 1996 amended
(1) The amendments in this clause are to the Criminal Law (Mentally
Impaired Defendants) Act 1996*.
[* Reprinted as at 21 June 2002.
5 For subsequent amendments see Act No. 27 of 2002.]
(2) Section 17 is repealed and the following section is inserted instead --
"
17. Procedure for indictable offences
(1) This section applies if the defendant is charged with an
10 indictable offence --
(a) that must be dealt with on indictment; or
(b) that, under section 5 of The Criminal Code or
under another written law, the magistrate
decides is to be dealt with on indictment.
15 (2) Despite the fact that the defendant is mentally unfit to
stand trial, the procedure in Part V of the Justices
Act 1902 is to be followed and the defendant, while not
mentally fit, is presumed to plead not guilty to the charge.
".
20 10. Electoral Act 1907 amended
(1) The amendments in this clause are to the Electoral Act 1907*.
[* Reprinted as at 15 December 2000.
For subsequent amendments see 2001 Index to Legislation of
Western Australia, Table 1, p. 109.]
25 (2) Sections 204 and 205 are each amended by deleting "indictable
offences" and inserting instead --
" crimes ".
11. Evidence Act 1906 amended
(1) The amendments in this clause are to the Evidence Act 1906*.

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Amendments consequential on Part 7 Schedule 3

[* Reprinted as at 4 January 2001.
For subsequent amendments see 2001 Index to Legislation of
Western Australia, Table 1, p. 121 and Acts Nos. 3 and 27 of 2002.]
(2) Section 106F(4) is amended by deleting "an indictable offence" and
5 inserting instead --
" a misdemeanour ".
12. Fair Trading Act 1987 amended
(1) The amendments in this clause are to the Fair Trading Act 1987*.
[* Reprinted as at 16 November 2001.]
10 (2) Section 69(1) is amended as follows:
(a) by deleting "an indictable offence which, subject to section
71, the defendant may elect to have dealt with summarily."
and inserting instead --
" a crime. ";
15 (b) by inserting at the foot of the subsection --
"
Summary conviction penalty: the lesser of a fine of
$6 000 or the maximum penalty provided by this
Act for the offence.
20 ".
(3) Section 69(2) is amended by deleting "and section 71(1)".
(4) Section 71 is repealed.

13. Family Court Act 1997 amended and consequential amendment to
Sentencing Legislation Amendment and Repeal Act 2003
25 (1) The amendments in this clause are to the Family Court Act 1997*
except where otherwise indicated.
[* Act No. 40 of 1997.
For subsequent amendments see Western Australian Legislation
Information Tables for 2002, Table 1, p. 130-1.]

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Schedule 3 Amendments consequential on Part 7

(2) Section 243(5) is amended as follows --
(a) by deleting "an indictable offence" and inserting instead --
" a crime ";
(b) by inserting at the foot of the subsection --
5 "
Summary conviction penalty:
(a) in the case of a body corporate, a fine of
$5 500;
(b) in any other case, a fine of $2 750.
10 ".
(3) Section 243(6) is repealed.
(4) If this clause comes into operation before the Sentencing Legislation
Amendment and Repeal Act 2003 section 60 comes into operation,
that section is repealed.

15 14. Firearms Act 1973 amended
(1) The amendments in this clause are to the Firearms Act 1973*.
[* Reprinted as at 11 August 2000.
For subsequent amendments see 2001 Index to Legislation of
Western Australia, Table 1, p. 139.]
20 (2) Sections 6(3), 7(2), 19(4), 23(3) and 23(5) are each amended by
deleting "an indictable offence" and inserting instead --
" a crime ".
(3) Section 23(3) is amended by deleting the summary conviction penalty
provision and inserting instead --
25 "
Summary conviction penalty:
(a) in a case to which paragraph (a) applies:
Imprisonment for 2 years or a fine of $8 000;
(b) in a case to which paragraph (b) applies:
30 Imprisonment for 12 months or a fine of $4 000.
".

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Amendments consequential on Part 7 Schedule 3

(4) Section 23(5) is amended by deleting the summary conviction penalty
provision and inserting instead --
"
Summary conviction penalty: Imprisonment for 12 months or
5 a fine of $4 000.
".
(5) Section 23D is repealed.

15. Gold Corporation Act 1987 amended
(1) The amendments in this clause are to the Gold Corporation
10 Act 1987*.
[* Reprinted as at 2 January 2001.]
(2) Section 71(1) is amended as follows:
(a) in paragraph (b) by deleting "an indictable offence" and
inserting instead --
15 " a crime ";
(b) by inserting at the foot of the subsection --
"
Summary conviction penalty: in a case to which
paragraph (b) of the above penalty provision
20 refers -- imprisonment for 2 years or a fine of
$10 000.
".
(3) Section 72(1) is amended as follows:
(a) by deleting "an indictable offence" and inserting instead --
25 " a crime ";
(b) by inserting at the foot of the subsection --
"
Summary conviction penalty: imprisonment for 2 years
or a fine of $10 000.
30 ".
(4) Section 73(1) and (2) are repealed.

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Schedule 3 Amendments consequential on Part 7

16. Guardianship and Administration Act 1990 amended
(1) The amendments in this clause are to the Guardianship and
Administration Act 1990*.
[* Reprinted as at 22 November 2002.]
5 (2) Schedule 1 Part B clause 12(1) and (2) are repealed and the following
subclauses are inserted instead --
"
(1) A person who publishes in a newspaper or periodical
publication or by radio broadcast or television, or otherwise
10 disseminates to the public or to a section of the public by
any means, any account of any proceedings, or of any part
of any proceedings, under this Act that identifies --
(a) a party to the proceedings;
(b) a person who is related to, or associated with, a
15 party to the proceedings or is, or is alleged to be, in
any other way concerned in the matter to which the
proceedings relate; or
(c) a witness in the proceedings,
is guilty of a crime and is liable --
20 (d) in the case of a body corporate, to a fine of $10 000;
(e) in any other case, to imprisonment for one year or a
fine of $5 000.
Summary conviction penalty:
(a) for a body corporate, a fine of $5 000;
25 (b) for an individual, a fine of $2 500.
(2) A person who, except as permitted by regulations, publishes
in a newspaper or periodical publication or by radio
broadcast or television, or otherwise disseminates to the
public or to a section of the public by any means (otherwise
30 than by the display of a notice in the premises of the Board),
a list of proceedings under this Act, identified by reference
to the names of the parties to the proceedings, that are to be
dealt with by the Board is guilty of a crime and is liable --
(a) in the case of a body corporate, to a fine of $10 000;

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(b) in any other case, to imprisonment for one year or a
fine of $5 000.
Summary conviction penalty:
(a) for a body corporate, a fine of $5 000;
5 (b) for an individual, a fine of $2 500.
".
(3) Schedule 1 Part B clause 12(4), (5) and (6) are repealed.

17. Interpretation Act 1984 amended
(1) The amendments in this clause are to the Interpretation Act 1984*.
10 [* Reprinted as at 1 January 1999.
For subsequent amendments see 2001 Index to Legislation of
Western Australia, Table 1, p. 180 and Act No. 3 of 2002.]
(2) Section 5 is amended by inserting in the appropriate alphabetical
positions the following definitions --
15 "
"indictable offence" has the meaning given by
section 67;
"simple offence" has the meaning given by section 67;
"summary conviction penalty", when used in relation
20 to an indictable offence, has the effect provided for
by section 5 of The Criminal Code;
".
(3) After section 67(1) the following subsection is inserted --
"
25 (1a) An offence designated as a crime or as a misdemeanour
is an indictable offence.
".
18. Misuse of Drugs Act 1981 amended
(1) The amendments in this clause are to the Misuse of Drugs Act 1981*.
30 [* Reprinted as at 11 January 2002.]

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Schedule 3 Amendments consequential on Part 7

(2) Section 3(1) is amended by deleting the definitions of "indictable
offence" and "offence".

(3) Each of the sections in the Table to this subclause is amended --
(a) by deleting "an indictable offence" in each place where it
5 occurs and in each place inserting instead --
" a crime ";
(b) by deleting "that indictable offence" in each place where it
occurs and in each place inserting instead --
" that crime "; and
10 (c) by deleting "the indictable offence" in each place where it
occurs and in each place inserting instead --
" the crime ",
as the case requires.
Table
s. 6 s. 32A(3) in the definition of "external
serious drug offence"
s. 7 s. 33
s. 10 s. 34

15 (4) If this Act comes into operation before the Cannabis Control
Act 2003 comes into operation, section 9 of the Misuse of Drugs
Act 1981 is repealed and the following section is inserted instead --
"
9. Summary trial of some indictable offences
20 (1) If a person is charged before a court of summary
jurisdiction with --
(a) an offence under section 6(1) in respect of a
quantity of a prohibited drug referred to in
Schedule III that is less than the quantity
25 specified in that Schedule in relation to that
prohibited drug; or

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(b) an offence under section 7(1) in respect of a
number of prohibited plants of a particular
species or genus referred to in Schedule IV that
is less than the number specified in that
5 Schedule in relation to that species or genus,
then, except in a case where the person is charged with
conspiring to commit the offence, the summary
conviction penalty for the offence is that set out in
section 34(2)(b).
10 (2) A court of summary jurisdiction that tries a person
summarily for a charge of an offence referred to in
subsection (1) must be constituted by a magistrate
sitting alone.
(3) If a person charged before a court of summary
15 jurisdiction with an offence that may be dealt with
summarily under subsection (1) is, under section 5 of
The Criminal Code, committed for trial or sentence in
respect of the offence, the court to which the defendant
is committed may deal with the charge despite --
20 (a) the quantity of the prohibited drug to which the
charge relates being less than the quantity
specified in Schedule III in relation to that
prohibited drug; or
(b) the number of prohibited plants of a particular
25 species or genus to which the charge relates
being less than the number specified in
Schedule IV in relation to that species or genus.
".

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Schedule 3 Amendments consequential on Part 7

(5) If this Act comes into operation after the Cannabis Control Act 2003
comes into operation, section 9 of the Misuse of Drugs Act 1981 is
repealed and the following section is inserted instead --
"
5 9. Summary trial of some indictable offences
(1) If a person is charged before a court of summary
jurisdiction with --
(a) an offence under section 6(1) in respect of a
quantity of a prohibited drug referred to in
10 Schedule III that is less than the quantity
specified in that Schedule in relation to that
prohibited drug;
(b) an offence under section 7(1) in respect of a
number of prohibited plants of a particular
15 species or genus referred to in Schedule IV that
is less than the number specified in that
Schedule in relation to that species or genus; or
(c) an offence under section 7A(1),
then, except in a case where the person is charged with
20 conspiring to commit the offence, the summary
conviction penalty for the offence is that set out in
section 34(2)(b).
(2) A court of summary jurisdiction that tries a person
summarily for a charge of an offence referred to in
25 subsection (1) must be constituted by a magistrate
sitting alone.

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(3) If a person charged before a court of summary
jurisdiction with an offence that may be dealt with
summarily under subsection (1) is, under section 5 of
The Criminal Code, committed for trial or sentence in
5 respect of the offence, the court to which the defendant
is committed may deal with the charge despite --
(a) the quantity of the prohibited drug to which the
charge relates being less than the quantity
specified in Schedule III in relation to that
10 prohibited drug; or
(b) the number of prohibited plants of a particular
species or genus to which the charge relates
being less than the number specified in
Schedule IV in relation to that species or genus.
15 ".
(6) Section 32A(3) is amended in the definition of "serious drug offence"
by deleting "indictable offence" and inserting instead --
" a crime ".

19. National Crime Authority (State Provisions) Act 1985 amended
20 (1) The amendments in this clause are to the National Crime Authority
(State Provisions) Act 1985*.
[* Act No. 4 of 1985.
For subsequent amendments see 2001 Index to Legislation of
Western Australia, Table 1, p. 255.]
25 (2) Section 23(2) is amended as follows:
(a) by deleting "an indictable offence and, subject to this section,
is punishable, upon conviction," and inserting instead --
" a crime and is punishable ";
(b) by inserting at the foot of the subsection --
30 "
Summary conviction penalty: imprisonment for one
year or a fine of $2 000.
".

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Schedule 3 Amendments consequential on Part 7

(3) Section 23(3) and (4) are repealed.

20. Offshore Minerals Act 2003 amended
(1) The amendments in this clause are to the Offshore Minerals Act
2003*.
5 [* Act No. 10 of 2003.]
(2) Section 404(3) is amended by inserting at the foot of the
subsection --
"
Summary conviction penalty: imprisonment for 2 years
10 or a fine of $10 000 or both.
".
(3) Section 404(4) and (5) are repealed.
21. Petroleum Act 1967 amended
(1) The amendments in this clause are to the Petroleum Act 1967*.
15 [* Reprinted as at 14 January 2000.
For subsequent amendments see 2001 Index to Legislation of
Western Australia, Table 1, p. 280.]
(2) Section 122 is repealed and the following section is inserted instead --
"
20 122. Crimes and other offences
(1) If the penalty provided for an offence under this Act is
or includes imprisonment, the offence is a crime.
(2) The summary conviction penalty for an offence
referred to in subsection (1) is imprisonment for
25 2 years or a fine of $10 000 or both.
(3) Unless the contrary intention appears, an offence under
this Act, other than a crime, is punishable summarily.
".

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22. Petroleum Pipelines Act 1969 amended
(1) The amendments in this clause are to the Petroleum Pipelines
Act 1969*.
[* Reprinted as at 12 May 2000.
5 For subsequent amendments see 2001 Index to Legislation of
Western Australia, Table 1, p. 281.]
(2) Section 66B is repealed and the following section is inserted
instead --
"
10 66B. Crimes and other offences
(1) If the penalty provided for an offence under this Act is
or includes imprisonment, the offence is a crime.
(2) Summary conviction penalty: for an offence referred to
in subsection (1) -- imprisonment for 2 years or a fine
15 of $10 000 or both.
(3) Unless the contrary intention appears, an offence under
this Act, other than a crime, is punishable summarily.
".
23. Petroleum (Submerged Lands) Act 1982 amended
20 (1) The amendments in this clause are to the Petroleum (Submerged
Lands) Act 1982*.
[* Reprinted as at 6 August 1999.
For subsequent amendments see 2001 Index to Legislation of
Western Australia, Table 1, p. 283.]
25 (2) Section 133 is repealed and the following section is inserted
instead --
"
133. Crimes and other offences
(1) If the penalty provided for an offence under this Act is
30 or includes imprisonment, the offence is a crime.

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(2) Summary conviction penalty: for an offence referred to
in subsection (1) -- imprisonment for 2 years or a fine
of $10 000 or both.
(3) Unless the contrary intention appears, an offence under
5 this Act, other than a crime, is punishable summarily.
".

24. Police Act 1892 amended
(1) The amendment in this clause is to the Police Act 1892*.
[* Reprinted as at 12 January 2001
10 For subsequent amendments see Western Australian Legislation
Information Tables for 2002, Table 1, p. 304 and Acts Nos. 7 and 28
of 2003.]
(2) Section 127 is repealed.

25. Port Authorities Act 1999 amended
15 (1) The amendments in this clause are to the Port Authorities Act 1999*.
[* Act No. 22 of 1999.
For subsequent amendments see 2001 Index to Legislation of
Western Australia, Table 1, p. 295 and Act No. 20 of 2002 and
Gazette 4 March 2003 p. 711-22.]
20 (2) Schedule 3 clause 2(1) is amended as follows:
(a) in the definition of "officer" by deleting the semicolon after
paragraph (b) and inserting a full stop instead;
(b) by deleting the definition of "summary conviction penalty".

26. Prostitution Act 2000 amended
25 (1) The amendment in this clause is to the Prostitution Act 2000*.
[* Act No. 17 of 2000.
For subsequent amendments see Act No. 9 of 2002.]
(2) Section 60 is repealed.

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27. Road Traffic Act 1974 amended
(1) The amendments in this clause are to the Road Traffic Act 1974*.
[* Reprinted as at 19 October 2001.
For subsequent amendments see 2001 Index to Legislation of
5 Western Australia, Table 1, p. 329 and Acts Nos. 4, 5 and 7 of 2002
and Gazette 17 May 2002 p. 2558-60.]
(2) Section 59(1) is amended by deleting "an indictable offence which
may, subject to subsection (1a), at the election of the person charged,
be dealt with summarily." and inserting instead --
10 "
a crime and is liable to the penalty in subsection (3).
Summary conviction penalty: imprisonment for
18 months or a fine of 160PU and in any event the
court convicting the person shall order that he be
15 disqualified from holding or obtaining a driver's
licence for a period of not less than 2 years.
".
(3) Section 59(1a) and (1b) are repealed.
(4) Section 59(3) is amended as follows:
20 (a) by inserting after "person convicted" --
" on indictment ";
(b) in paragraph (a) by deleting "if convicted upon indictment
and, at the time of the offence," and inserting instead --
" if at the time of the offence ";
25 (c) by deleting paragraphs (aa) and (b) and inserting the
following paragraphs instead --
"
(b) in any other circumstances, to imprisonment for
4 years or a fine of 400PU,
30 ".

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Schedule 3 Amendments consequential on Part 7

28. Securities Industry Act 1975 amended
(1) The amendments in this clause are to the Securities Industry
Act 1975*.
[* Act No. 99 of 1975.]
5 (2) Section 113 is amended by deleting "an indictable offence" and
inserting instead --
" a crime ".
29. Sentencing Act 1995 amended
(1) The amendments in this clause are to the Sentencing Act 1995*.
10 [* Reprint 3 as at 10 October 2003.]
For subsequent amendments see Act No. 77 of 2003.]
(2) Section 112(1)(b) is amended by deleting "section 100(1)(d), (e) or
(f)" and inserting instead --
" section 100(3)(a), (b), (c) or (d) ".

15 30. Statutory Corporations (Liability of Directors) Act 1996 amended
(1) The amendments in this clause are to the Statutory Corporations
(Liability of Directors) Act 1996*.
[* Reprinted as at 10 August 2001.
For subsequent amendments see 2001 Index to Legislation of
20 Western Australia, Table 1, p. 359 and Acts Nos. 25 of 2001 and
30 of 2002.]

(2) Section 7 is amended as follows:
(a) in the definition of "director" by deleting the semicolon after
paragraph (c) and inserting a full stop instead;
25 (b) by deleting the definition of "summary conviction penalty".

31. Western Australian Marine (Sea Dumping) Act 1981 amended

(1) The amendments in this clause are to the Western Australian Marine
(Sea Dumping) Act 1981*.

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[* Act No. 111 of 1981.
For subsequent amendments see 2001 Index to Legislation of
Western Australia, Table 1, p. 411.]

(2) Section 31 is repealed and the following section is inserted instead --
5 "
31. Crimes

(1) An offence against section 5, 6, 7, 9, 12(5) or 29(1) is a
crime.
(2) Summary conviction penalty: for an offence against
10 section 5, 6, 7, 9 or 12(5) --
(a) for a body corporate, a fine of $5 000;
(b) for an individual, a fine of $2 000.
(3) Summary conviction penalty: for an offence against
section 29(1) --
15 (a) for a body corporate, a fine of $5 000;
(b) for an individual, imprisonment for one year or
a fine of $2 000 or both.
".
32. Witness Protection (Western Australia) Act 1996 amended
20 (1) The amendment in this clause is to the Witness Protection (Western
Australia) Act 1996*.
[* Act No. 11 of 1996.
For subsequent amendments see 2001 Index to Legislation of
Western Australia, Table 1, p. 419.]
25 (2) Section 3(1) is amended by deleting the definition of "Summary
Conviction Penalty".

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