Justice Legislation Miscellaneous Amendment Bill2018

Amended Print

EXPLANATORY MEMORANDUM

581350

BILL LA AMENDED 30/7/2018

Clause Notes

Part 1—Preliminary

Clause 1sets out the purposes of the Bill. The Bill—

  • amends the Children, Youth and Families Act 2005 inrelation to the sentencing of certain young offenders by the Supreme Court or the County Court; and
  • makes various amendments to the Coroners Act 2008 and a consequential amendment to the Births, Deaths and Marriages Registration Act 1996; and
  • amends the Crimes Act 1958 in relation to Aboriginal persons taken into custody and forensic procedure orders; and
  • amends the Criminal Procedure Act 2009 in relation to witnesses, recorded evidence, indictable offences that may be heard and determined summarily and the DPP's right of appeal; and
  • amends the Domestic Building Contracts Act 1995 in relation to referred domestic building work disputes and publication of directions; and
  • amends the Estate Agents Act 1980 in relation to rebate statements and to make minor technical amendments; and
  • amends the Evidence Act 2008 to require that improper questions be disallowed; and
  • amends the Family Violence Protection Act 2008 inrelation to the relationship of orders with certain conditions under that Act with certain orders under theSentencing Act 1991; and
  • amends the Honorary Justices Act 2014 in relation to the use of the titles "JP (Retired)" and "BJ (Retired)"; and
  • amends the Personal Safety Intervention Orders Act2010 in relation to the relationship of orders within certain conditions under that Act with certain orders under the Sentencing Act 1991; and
  • amends the Retirement Villages Act 1986 to providefor making regulations prescribing different infringement penalties for different classes of persons; and
  • amends the Rooming House Operators Act 2016 inrelation to licence disqualification criteria and other rooming house operator provisions; and
  • makes various amendments to the Sentencing Act 1991 and consequential amendments to the Crimes Act 1958.

Clause 2provides for commencement of the Bill.

Subclause (1) provides that Part 1 comes into operation on the day on which the Bill receives the Royal Assent.

Subclause (2) provides that clauses73(2), 83 and 84 and Part 15 comeinto operation on the day after the day on which the Bill receives the Royal Assent.

Subclause (3) provides that Division 1 of Part 7 is taken to havecome into operation on 9 June 2018.

Subclause (4) provides that, subject to subclause (5), the remaining provisions of the Bill come into operation on a dayordays to be proclaimed.

Subclause (5) provides that if a provision of the Bill does not come into operation before 1 October 2019, it comes into operation on that day.

Part 2—Amendment of Children, Youth and Families Act 2005

Clause 3inserts new section 586(2) into the Children, Youth and Families Act 2005,which provides for higher courts, when sentencing an offender who was 16 or 17 years old at the time ofoffending, to have regard to the requirement that an adult offender being sentenced for the same offence would be subject to a specified minimum term of imprisonment or non-parole period, as an additional sentencing factor. The additional sentencing factor is intended to ensure that courts have regard tothe gravity of such offences. The amendment will not affect judicial sentencing discretion or the principle that children shouldonly be detained as a last resort.

Clause 4provides for the additional sentencing factor that is set out in new section 586(2) of the Children, Youth and Families Act 2005 to apply to an offence committed on or after the commencement of that section.

Part 3—Amendment of Coroners Act 2008 andconsequentialamendments

Division 1—Coroners Act 2008

Clause5insertsanewsection4(1A)intheCoronersAct2008,whichprovidesthatifacoronermakesadeterminationundernewsection16(1A),thatdeathisnotareportabledeathforthepurposesoftheCoronersAct2008onandfromthatdetermination.

The amendments in clauses 5, 6, 7, 10 and 14 all relate to whatisa reportable death.

Clause 6amends section 16 of the Coroners Act 2008 regarding when a death is not a reportable death.

Under section 4 of the Coroners Act 2008, in order for a death to be a reportable death, it must (amongst other matters) be a death specified in section 4(2) of the Coroners Act 2008, namely—

(a)a death that appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, from an accident or injury; or

(b)a death that occurs—

(i)during a medical procedure; or

(ii)following a medical procedure where the death isor may be causally related to the medical procedure—

and a registered medical practitioner would not, immediately before the procedure was undertaken, havereasonably expected the death; or

(c)the death of a person who immediately before death wasa person placed in custody or care; or

(d)the death of a person who immediately before death wasa patient within the meaning of the Mental Health Act 2014; or

(e)the death of a person under the control, care or custody of the Secretary to the Department of Justice or a police officer; or

(f)the death of a person who is subject to a non-custodial supervision order under section 26 or 38ZH of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or

(g)the death of a person whose identity is unknown; or

(h)a death that occurs in Victoria if a notice under section37(1) of the Births, Deaths and Marriages Registration Act 1996 has not been signed and is not likely to be signed; or

(i)a death that occurs at a place outside Victoria if the cause of death is not certified by a person who, under the law in force in that place, is authorised to certify thatdeath and the cause of death is not likely to be certified by a person who is authorised to certify in thatplace; or

(j)a death—

(i)of a prescribed class of person;

(ii)that occurs in prescribed circumstances.

Section 37 of the Births, Deaths and Marriages Registration Act 1996 (BDMR Act) requires a registered medical practitioner, in certain circumstances, to provide notice to the Registrar of Births, Deaths and Marriages (Registrar) of a death, provided thedeath is not a reportable or reviewable death.

If a death in Victoria is not a death specified in paragraphs (a) to(g) or (j) of section 4(2) of the Coroners Act 2008—

  • a registered medical practitioner may sign a notice under section 37(1) of the BDMR Act (37(1) Notice); and
  • provided the 37(1) Notice has been signed, the death isnot a reportable death and it does not need to be reported to the coroner.

However, if no doctor is willing or available to sign a 37(1) Notice, for example if there is no treating doctor, or if the treating doctor is unsure about whether the death is a reportable death, then, pursuant to section 4(2)(h) of the Coroners Act 2008, thedeath is a reportable death, which must be reported to the coroner. The same issue arises in relation to section 4(2)(i) of theCoroners Act 2008, which deals with a death that occurs outside Victoria where the cause of death is not certified and is not likely to be certified in the manner outlined in section 4(2)(i).

The coroner therefore investigates 2 types of reportable deaths in Victoria—

  • deaths specified in paragraphs (a) to (g) or (j) of section4(2) of the Coroners Act 2008; and
  • deaths where a registered medical practitioner has notsigned and is not likely to sign a 37(1) Notice
    (or for deaths that occur outside Victoria, the relevant certification has not occurred and is unlikely to occur).

If a registered medical practitioner is not willing or available tosign a 37(1) Notice in relation to a death in Victoria, then it isappropriate for the coroner to assess whether the death is a death specified in paragraphs (a) to (g) or (j) of section 4(2) of the Coroners Act 2008. However, if the coroner determines thatthe death is not a death specified in paragraphs (a) to (g) or(j) of section 4(2) of the Coroners Act 2008, there is no longer a need for the death to be investigated by a coroner.

Subclause (1) inserts new section 16(1A) into the Coroners Act2008, which provides that a coroner may determine that a death described in section 4(2)(h) or (i) is not a reportable death if the coroner is satisfied the death is not a death described in section 4(2)(a), (b), (c), (d), (e), (f), (g) or (j).

The new section 4(1A) (which is inserted by clause 5) provides that if a determination is made under section 16(1A), the death is not a reportable death for the purposes of the Coroners Act 2008 on and from that determination.

In accordance with section 16(3), if a coroner determines that adeath is not a reportable death under section 16(1) or (1A), thecoroner must discontinue the investigation into the death.

Subclause (2) amends section 16(2) of the Coroners Act 2008 toinclude a reference to new section 16(1A). This means that ifthe coroner makes a determination under section 16(1A), the coroner must give written notice of the coroner's determination tothe person who reported the death.

Subclause (3) inserts a new section 16(6) in the Coroners Act2008. New section 16(6) provides that if a coroner determines under section 16(1) or (1A) that a death is not reportable, the principal registrar of the Coroners Court must notify, without delay, the Registrar of Births, Deaths and Marriages, of the prescribed particulars. These particulars
will be prescribed in regulations under the Act.

Clause 7amends section 17 of the Coroners Act 2008, which provides fora stream-lined process to investigate certain reportable naturalcause deaths in a manner that does not require formal findings under section 67.

Subclause (1) replaces the words "Subject to subsection (3)" insection 17(1) with the word "A". This amendment reflects thatsection 17(3) is a redundant provision that will be repealed by subclause (5).

Subclauses (2), (3) and (4), together, result in section 17 providing that a coroner is not required to continue an investigation into a reportable death if—

  • the coroner determines that other than the fact that the death was unexpected, it is not a death referred to in section 4(2)(a) (i.e. the death does not appear to have been an unnatural or violent death or to have resulted, directly or indirectly, from an accident or injury); and
  • the coroner determines that the death was not a death referred to in section 4(2)(b), (c), (d), (e), (f), (g) or (j); and
  • a medical investigator conducts a medical examination on the deceased person and provides a report to the coroner that includes an opinion that the death was due to natural causes; and
  • the coroner determines that the death is not a reviewable death.

The amendment to section 17(1) reflects that—

  • if the death were a reportable death, the coroner wouldbe expected to make a determination under section 16(1) or (1A); and
  • since section 17 is meant to relate to reportable deaths, there would not normally be a 37(1) Notice signed byaregistered medical practitioner (or certification ofthe death in the manner outlined in section 4(2)(i)) inrelation to such deaths.

The effect of the amendment is to clarify that section 17 can apply, despite the absence of a 37(1) Notice or certification ofthedeath in the manner outlined in section 4(2)(i).

Subclause (5) repeals section 17(3). Section 17(3)—

  • currently provides that section 17 does not apply to a reportable death of a person who, immediately before death, was a person placed in custody or care; and
  • is misleading, because it wrongly implies that, but forsection 17(3), the coroner could, under section 17 ofthe Coroners Act 2008, cease an investigation intoareportable death of a person who, immediately before death, was a person placed in custody or care. However, such a death is covered by section 4(2)(c) and, even after the repeal of section 17(3), a coroner could not cease the investigation of such a death under section 17.

Clause 8inserts a new section 76A in the Coroners Act 2008.

The new section 76A(1) provides that the people referred to insection 76A(1) may apply to the Coroners Court for the wording of a coroner's decision or a decision of the Court to beamended.

Interested party, which is used in new subsections (1)
and (2), and senior next of kin are defined in section 3(1) oftheCoroners Act 2008. New section 17(1)(b) and (2)(c) clarifies that the reference to interested party is confined to aninterested party in relation to an inquest in respect of the death.

The section strikes a balance between the need for finality incoronial decisions and the ability to make changes that are appropriate in the circumstances.

The finality of coronial decisions is supported by—

  • section 76A(1) limiting who can make an application tothe Coroners Court under section 76A(1);
  • providing that theapplication to the Coroners Court needs to be made within 3 months of the decision; and
  • providing that the Coroners Court needs to be satisfied that—
  • the amendment would not be inconsistent with a finding under section 67(1);
  • the amendment does not require the re-opening of the investigation;
  • the amendment does not appear to be prejudicial to a person (other than the applicant) who is an interested party in relation to an inquest in respect of the death; and
  • it is otherwise appropriate to make the amendment.

Therequirementthattheamendedwordingnotappeartobeprejudicialtointerestedpartiesisintendedtoprevent,forexample,theinsertionintothedecisionofadversecommentsagainstaninterestedparty(whoisnotapplyingfortheamendment),ortheremovalofexculpatorycommentsaboutsuchaperson.

If a proposed amendment to the wording of a decision involved the insertion of adverse comments against a person who is not aninterested party, the application could be dismissed on the grounds that the change is not "otherwise appropriate in all the circumstances".

The consideration by the Coroners Court of an application madeunder new section 76A(1) would, consistent with all otherdecisions of the Coroners Court, need to comply with therequirements of procedural fairness.

Clause 9amends section 77 of the Coroners Act 2008,to provide for thefindings of coronial investigations (including investigations under previous Coroners Acts) to be reviewed by the Coroners Court in certain circumstances.

The amendments provide that the Coroners Court may, if satisfied that there are new facts and circumstances that makeitappropriate to do so, order that—

  • some or all of the findings of a coroner following an investigation (whether or not an inquest has been held) be set aside without re-opening the investigation; or
  • some or all of the findings of a coroner following an investigation (whether or not an inquest has been held) be set aside and the investigation be re-opened.

The new section 77(3) of the Coroners Act 2008, read with section 3(1) and Part 6 of that Act, mean that, for the purposes ofsection 77—

  • the findings of a coroner that may be set aside under section 77 include—
  • findings of a coroner made under the Coroners Act 1958 or the CoronersAct 1985; and
  • findings of a coroner made under section 67 or68 of the Coroners Act 2008;
  • investigations that may be re-opened under section 77 include—
  • an investigation that occurred under the Coroners Act 1958 or the Coroners Act 1985; and
  • an investigation that occurred under the Coroners Act 2008;
  • the reference to "inquest" in section 77 includes—
  • an inquest that occurred under the Coroners Act1958 or the Coroners Act 1985; and
  • an inquest that occurred under the Coroners Act2008.

New section 77(4) provides that, if the Coroners Court orders under new section 77(2)(b) that some or all of the findings besetaside and the investigation re-opened, the investigation must be conducted as an investigation under the Coroners Act2008 (even if the initial investigation was under the Coroners Act 1958 or the Coroners Act 1985). The re-opened investigation would therefore be conducted under the Coroners Act 2008 and the coroner would need to make findings under section 67 or 68 of the Coroners Act 2008 (as the case may be).

Under new section 77(5), unless one of the specified circumstances set out in new section 77(6) (below) applies, aperson must not apply for an order under section 77(1) if theirapplication is based on the same, or substantially the same,grounds or evidence as an application (which was madebythat person or any other person) to the—

  • Supreme Court under section 10 of the Coroners Act1958, and the Supreme Court in that instance refused to make an order under that section; or
  • Supreme Court under section 59 of the Coroners Act1985 and the Supreme Court in that instance refused to make an order under that section; or
  • State Coroner under section 59A of the Coroners Act1985, and the State Coroner in that instance refusedto make an order under that section; or
  • Coroners Court under section 77 of the Coroners Act2008, and the Coroners Court in that instance refused to make an order under that section.

The new section 77(6) in the Coroners Act 2008, provides that,for the purposes of section 77(5), the exceptions
(i.e. "specified circumstances") referred to in section 77(5)
are—

  • the Supreme Court refused to make an order under section 10 of the Coroners Act 1958, because section10 was repealed at the time the application wasmade; or
  • the Supreme Court refused to make an order under section 59 of the Coroners Act 1985 because section 59 was repealed at the time the application was made; or
  • the State Coroner refused to, or was not able to
    (e.g. due to a direction of the Supreme Court) to makean order under section 59A of the Coroners Act1985 because section 59A was repealed at the timethe application was made; or
  • the Coroners Court refused to, or was not able to
    (e.g. due to a direction of the Supreme Court) an order under section 77 of the Coroners Act 2008 because section 77 did not apply to findings, investigations orinquests made or determined under the Coroners Act1958 or the Coroners Act 1985 at the time the application was made.

The effect of new section 77(5) and (6) is that, if a person appliesfor an order under new section 77(1), the application—

  • may be considered by the Coroners Court if—
  • any person had previously made an unsuccessfulapplication on the same, or substantially the same, grounds or evidence, toeither the Supreme Court (under section 10 ofthe Coroners Act 1958, or section 59 of theCoroners Act 1985) or the State Coroner (under section 59A of the Coroners Act 1985) or the Coroners Court (under section 77
    ofthe Coroners Act 2008) ("the previous application"); and
  • the previous application was rejected on the basis that—
  • section10 of the Coroners Act 1958,section 59 of the Coroners Act 1985 or section 59A of the Coroners Act 1985 (as the case may be) was repealed; or
  • section 77 did not apply to findings, investigations or inquests made ordetermined under the Coroners Act1958 or the Coroners Act 1985
    at the time the application was made.
  • must be rejected by the Coroners Court if—
  • any personmade a previous application; and
  • the previous application was not rejected on thebasis that—
  • section 10 of the Coroners Act 1958,section 59 of the Coroners Act 1985 or section 59A of the Coroners Act 1985 (as the case may be) was repealed; or
  • section 77 did not apply to findings, investigations or inquests made or determined under the Coroners
    Act 1958 or the Coroners Act 1985
    at the time the application was made.

The new section 77(7) of the Coroners Act 2008, provides that, for the purpose of considering an application under section 77, the State Coroner must determine which coroner is to constitute the Coroners Court. The State Coroner may determine that the original coroner, or another coroner, will constitute the Coroners Court under this provision.