Bills

Justice Legislation Amendment (Police and Other Matters) Bill 2019

Statement of compatibility

Ms NEVILLE (Bellarine—Minister for Water, Minister for Police and Emergency Services) (10:09): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a Statement of Compatibility in relation to the Justice Legislation Amendment (Police and Other Matters) Bill 2019.

In my opinion, the Bill, as introduced in the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill seeks to amend a range of Acts, including to

• create new streamlined powers in the Crimes Act 1958 for police to take a DNA sample from certain suspects and offenders without a court order;

• introduce new criminal offences and sanctions in the Crimes Act, Sentencing Act 1991 and Bail Act 1977 for acts that harm or threaten harm to police officers, protective services officers (PSOs) and police custody officers (PCOs);

• amend the Second-Hand Dealers and Pawnbrokers Act 1989 to enable the interim and long-term closure of second-hand dealers operating without the required registration or who police suspect are engaging in serious criminal activity;

• amend the commercial and large commercial quantities under the Drugs, Poisons and Controlled Substances Act 1981 with respect to the trafficking in certain drugs of dependence and introduce a new offence of trafficking in a commercial quantity for the benefit, or at the direction, of a criminal organisation;

• amend the Victoria Police Act 2013 and Protected Disclosure Act 2012 to facilitate the establishment of a standalone restorative engagement process to support Victoria Police employees who have been victims of sexual harassment or discrimination by another Victoria Police employee, and exempt such victims from any sanction if they do not report the conduct;

• amend the Firearms Act 1996 to reclassify lever action shotguns, apply offences of trafficking firearms to all stolen firearms and remove the requirement that hard copy firearm licenses contain the residential address of the license holder;

• amend the Sex Offenders Registration Act 2004 to permit the disclosure of personal information on the Sex Offenders Register to government departments, public statutory authorities or a court for the purpose of the performance of a function of a law enforcement agency;

• insert a range of additional offences into Schedules 1 and 2 to the Confiscation Act 1997;

• make other technical amendments to a range of Acts, including to ensure that maternity leave is treated the same as other forms of parental leave under the Victoria Police Act.

Human rights issues

Streamlined police DNA powers

Part 8 of the Bill amends the DNA sampling regime in Subdivision (30A) of the Crimes Act to streamline processes and reduce the administrative burden on police and the courts. New section 464SE provides that a senior police officer may authorise the taking of a DNA profile sample where a suspect, including specified 15 to 17 year olds, has not consented and the procedure is justified in all of the circumstances (‘suspect DNA sampling’). A DNA profile sample is defined to mean the taking of a sample from a person that is a blood sample, hair sample, saliva sample or a scraping taken from the mouth. The Bill also provides that a senior police officer may authorise the taking of a DNA profile sample from an adult who has been found guilty or not guilty by mental impairment of a DNA offence (‘offender DNA sampling’).

To complement these reforms, clause 76 of the Bill creates new oversight mechanisms that will be performed by the Independent Broad-based Anti-corruption Commission (IBAC) to monitor compliance with provisions governing the authorising, taking, use, retention and destruction of DNA profile samples. Streamlining DNA sampling processes will assist police to effectively investigate and solve serious crimes. It will also remove an unnecessary burden on the courts. In 2015–16, the Magistrates’ Court of Victoria alone dealt with more than 5,800 applications for a forensic procedure. This represents a five-fold increase in the number of court orders for forensic procedures sought in 2011–12.

Under the new scheme, suspects will still be given the opportunity to provide informed consent to give a DNA profile sample, which may assist with the elimination of an innocent suspect and free up police resources to focus on other suspects. However, where appropriate, the Bill will assist police in obtaining samples where a person has refused to give consent and it is justified in all the circumstances to take a sample without consent. Existing mechanisms will continue to apply for the conduct of other forensic procedures.

Rights to privacy (section 13(a)) and not to be subject to medical treatment without consent (section 10(c))

The taking and use of a DNA sample, as well as the retention of records on the DNA database, engages the right to privacy in section 13(a) of the Charter. Section 13(a) of the Charter provides that a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with. To the extent that the right to privacy is engaged by the new DNA powers provided in the Bill, I consider it is justified because any interference will not be unlawful or arbitrary.

A senior police officer must be satisfied of particular criteria before authorising the taking of a DNA profile sample from a suspect or an offender. In relation to adult suspects, the senior police officer must be satisfied that the person is in lawful custody, the person is not incapable of giving informed consent and has refused to consent, the person is believed to have committed a particular indictable offence, and taking the sample without the consent of the person is justified in all the circumstances. When the suspect is aged 15 to 17 years old, the senior police officer must believe on reasonable grounds that the child has committed a DNA sample offence, which is defined in clause 52 and includes a number of serious indictable offences listed in clause 78.

The new power does not require that material reasonably believed to be from the body of a person who committed the offence has been found before DNA can be taken from a suspect (that is, there is no requirement that the taking of a sample from a suspect will be forensically relevant to the offence for which they are a suspect). While it will usually be the case that the suspect’s DNA is needed so that it can be analysed against another sample taken from the crime scene, this requirement can be difficult to satisfy, particularly where a suspect is in police custody but will be released prior to the completion of crime scene analysis. As already explained, new section 464SE requires the suspect to be in lawful custody and, if a forensic relevance requirement remained, this difficulty would continue to arise. I note that police in other jurisdictions are not required to meet this additional threshold—it is unique to Victoria.

I consider that allowing police to take DNA samples from suspects without a further threshold test (that the taking of the sample without consent is ‘justified in all the circumstances’—the ‘justified test’), as is the case in for charged suspects in Western Australia and Tasmania and suspects in Queensland for which proceedings have commenced, could lead to the charging of suspects before an investigation is complete in order to take their DNA at a much earlier stage in an investigation. This could lead to unfair outcomes. Accordingly, the Bill includes the justified test and does not rely on a person being charged by police.

As set out in the Explanatory Memorandum, the justified test is an important safeguard and focuses on the ultimate issue that is to be determined by the senior police officer. For example, under the current law even if a DNA sample has forensic relevance, the DNA sample cannot be taken if the giving of the authorisation is not justified in all of the circumstances.

It follows that while the forensic relevance test would provide a different approach, I do not consider it a less restrictive alternative to achieve the purpose of the clause. In my view, the justified in all the circumstances test in new section 464SE sets out an appropriate threshold that, depending on the circumstances, may encompass the forensic relevance test. That is, the forensic relevance test is not being excluded by the Bill. For example, if police are investigating an offence and forensic evidence has been found, or is likely to be found, on the victim or at the crime scene, the forensic relevance in taking the suspect’s DNA sample will still be a relevant consideration in the justified test.

I note that, unlike other jurisdictions, new section 464SE does not specify a list of factors that must be considered when the justified test is applied. I do not consider that having an express list of considerations would change the nature of the justified test or be determinative. The senior police officer would only be required to consider those factors, where relevant, as a guide when making a determination. However, the Explanatory Memorandum provides that the senior police officer may need to turn their mind to the types of considerations raised by the Committee, and specifically ‘the circumstances of the alleged offending, the extent to which the DNA profile sample is likely to assist with the investigation, and the age, cognitive, physical or mental health of the person’.

In addition, I note that there are other important safeguards that will ensure that the senior police officer takes into account all relevant considerations when making this determination. First, under section 38 of the Charter of Human Rights and Responsibilities Act 2006, Victoria Police is required to act compatibly with human rights and to properly consider the relevant human rights that arise in the circumstances of the case when making decisions. Second, the senior police officer’s decision will be subject to judicial review by the Supreme Court (including on the ground of failure to take into account relevant considerations). Finally, the admissibility of any evidence obtained as a result of a DNA profile sample will be a matter for the courts and will be a question for the trier of fact in each case. As is currently the case, the evidence will generally be inadmissible if the senior police officer fails to comply with the law, including the application of the justified test.

For these reasons, I do not consider that including an express list of considerations to take into account when assessing the justified test is a less restrictive alternative to achieve the purpose of clause 55. The justified test will require the senior police officer to take into account relevant considerations regardless of whether these are expressly set out in the Bill.

Before authorising the taking of a DNA profile sample from an offender, the senior police officer must be satisfied that the person has been found guilty, or not guilty by mental impairment (other than an offence heard and determined summarily), of a DNA offence, Victoria Police does not already have a DNA sample for the offender that may be retained indefinitely, and the person is not under the age of 18 years.

The Bill also introduces a number of new oversight mechanisms to ensure that both the new authorisation and the existing taking, retention, destruction and use protections are complied with. These safeguards promote the protection of privacy. First, the Bill requires that the reports the Chief Commissioner of Police currently submits to the Attorney-General under Subdivision (30A) of the Crimes Act contain information on the reasons for destroying any samples, the date of decisions that enliven a destruction requirement, and the number of suspect samples that at the time of reporting have been held for 12 months or more.

Second, a new obligation is placed on the IBAC to monitor compliance with the authorisation and destruction of DNA profile samples obtained under the new suspect DNA sampling and offender DNA sampling provisions. The Chief Commissioner must also report annually to IBAC on the authorisation and destruction of these samples. The Bill gives associated powers to the IBAC to inspect the records of Victoria Police for these purposes, and requires the IBAC to report annually to the Attorney-General. Third, the Bill gives the Attorney-General the power to make a complaint to the IBAC about the authorisation, taking, use, retention and destruction of DNA samples, which may trigger an investigation. These oversight mechanisms will operate alongside the current oversight mechanisms, where the admissibility of any evidence obtained as a result of a DNA profile sample will be a matter for the courts.

The taking of DNA profile samples will also be governed by requirements to ensure that the procedures are carried out safely and with respect to the person’s privacy. The Bill inserts a new requirement to use the least intrusive and least painful method of obtaining a DNA sample that is practicable in the circumstances. Existing safeguards will also continue to apply. For example, as is the case currently, where DNA is to be taken by a mouth scraping, the person may elect to conduct the mouth scraping themselves, and only a medical practitioner or nurse may take a blood sample. To the extent that the streamlined DNA powers may interfere with a person’s privacy, I consider it is reasonable as the new powers do not involve an unlawful or arbitrary interference with privacy.

The taking of DNA profile samples is also likely to be relevant to section 10(c) of the Charter, which provides that a person has the right not to be subjected to medical treatment without his or her full, free and informed consent. While the taking of DNA profile samples, including by way of a scraping from the mouth, could potentially constitute medical treatment without consent, I am of the view that any resulting limitation would be reasonable and demonstrably justified under section 7(2) of the Charter because such tests are being conducted for the important public purpose of assisting police to investigate serious offences.

As discussed above, the existing procedures and rules for the taking of DNA profile samples will provide important safeguards that minimise any limitation of these rights. These safeguards include requirements that all persons must first be given the opportunity to give informed consent for the taking of a DNA profile sample and that samples may only be taken by a medical practitioner or nurse, or by allowing individuals to take their own mouth scraping under the supervision of a police officer or authorised police custody officer. Further, the Bill requires that the least intrusive and least painful method practicable in the circumstances must be used for the taking of DNA profile samples.

The right to a fair hearing (section 24)

The overarching purpose of the new DNA sampling regime is to reduce the administrative burden on police and the courts. The Bill therefore removes the requirement to apply for court orders to obtain DNA samples for some suspects and for some offenders. This may engage the right to a fair hearing protected under section 24 of the Charter.

Currently, when a police officer applies to the court for a compulsory procedure order or an order for an offender sample, the person about whom the application is made must be present at the hearing of the application. However, that person is not a party to the application and they may not call or cross-examine any witnesses. A person may make limited submissions as to the grounds the police officer relies on for making the application.

New section 464SF provides that before making an authorisation, the senior police officer must allow a reasonable opportunity, if practicable in person, for the suspect, or their legal practitioner, or parent or guardian if the suspect is a child, to inform the senior police officer whether there are any reasons why the DNA profile sample should not be taken. The authorisation must also be provided to the person in writing and set out the grounds for giving the authorisation. With regards to the taking of offender DNA samples, new section 464ZFAD requires a notice to attend to be served on an adult offender attaching the senior police office authorisation and that notice must, among other matters, state that the person may wish to seek legal advice as to the effect of the notice. The offender will be given at least 28 days to comply with that notice, which provides sufficient time to seek advice.

I am of the view that removing court oversight for some suspects and some offenders is necessary and justified in order to streamline DNA sampling. The new suspect DNA sampling will only be authorised by a police officer of the rank of senior sergeant or above where taking the sample without consent is justified in all the circumstances. The threshold test of being justified in all the circumstances is also applied by the courts when considering applications for compulsory procedure orders.

I consider it appropriate for senior police to make these decisions in order to reserve court resources for more significant applications, including for compulsory orders for DNA samples for child suspects aged between 10 and 15 years and for compulsory orders for more intrusive forensic procedures. Similarly, I am of the view that taking a DNA profile sample from adults who have been found guilty of committing DNA offences is justified in all the circumstances and that requiring a court order in such cases is unnecessary.

The Bill will not limit a person’s right to fair hearing on any charges that may or may not proceed and a person may continue to challenge the admissibility of DNA evidence under existing provisions. For these reasons, I am of the view that the new regime is compatible with the right to a fair hearing.

Rights to liberty and security of the person (section 21) and freedom of movement (section 12)

Section 21(1) of the Charter protects a person’s right to liberty and security. This general protection of a person’s right to liberty is supplemented by sub-sections that give specific content to the liberty right. In particular,

• section 21(2) provides that a person must not be subject to arbitrary arrest or detention;

• section 21(3) requires that a person must not be deprived of liberty except on grounds, and in accordance with procedures, established by law; and

• section 21(4) requires that a person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention.

Section 12 of the Charter also provides that persons lawfully within Victoria have the right to move freely within the state and have the freedom from being forced to move to a particular place. The interactions between suspect DNA sampling and offender DNA sampling with the right to liberty and security of the person and freedom of movement are discussed separately below.

Suspect DNA sampling

A DNA profile sample will only be able to be authorised and taken from a suspect while they are in lawful custody. The suspect DNA sampling regime therefore engages the rights to liberty and freedom of movement.

The Bill does not contain any new powers to arrest or detain a person for the purposes of obtaining a DNA profile sample. Rather, the taking of a DNA profile sample may only be authorised by a senior police officer where the person is under lawful arrest by warrant, under lawful arrest under powers provided for in the Crimes Act, or in the custody of an investigating official for the purposes of questioning pursuant to a court order. Existing procedures and oversight mechanisms will ensure that a person is not arbitrarily arrested or detained for the purposes of DNA sampling. In addition, the Bill requires that a senior police officer must be satisfied of specified criteria, outlined above, before authorising the taking of a DNA profile sample.

The taking of the DNA profile sample must be authorised by a senior police officer (i.e. an officer of or above the rank of senior sergeant) who is not involved in the investigation. This will ensure independent oversight of the process. The senior police officer must provide reasons for their decision to authorise a DNA profile sample where a person has refused to give consent. Any arrest or detention of a person for the taking of a DNA profile sample will be in accordance with current procedures established by law. These procedures include informing a person of the purposes of obtaining a DNA profile sample and cautioning the person that they do not have to answer any questions asked by any person conducting the procedure. The giving of information and any responses must also be recorded.

Offender DNA sampling

Clause 62 sets out the new offender DNA sampling regime, which allows a senior police officer to authorise the taking of a DNA profile sample from an offender and issue a notice to attend. An offender who attends in accordance with such a notice may be detained for the purposes of taking the DNA profile sample. In many cases, the person will voluntarily attend in response to the notice, and take the DNA profile sample themselves. If the offender does not attend in accordance with the notice, or police make reasonable attempts to locate the person but are unable to serve the notice within 6 months of the finalisation of the matter, police will be able to seek a warrant for that person’s arrest. The offender DNA sampling regime therefore engages the rights to liberty and freedom of movement.

Before a senior police officer can issue a notice to attend, they must be satisfied that the subject of the notice is guilty, or not guilty by mental impairment, of a DNA offence. DNA offence is defined in new section 464ZFAC of the Crimes Act and includes an indictable offence or specific offences listed in Schedule 8. The notice to attend will include information about the purposes of detention and that a police officer may use reasonable force to enable the procedure to be conducted. Detention for the purposes of taking a DNA profile sample from an offender will be limited to as long as reasonably permits for the DNA profile sample to be taken. The sample must be obtained in accordance with the current procedures set out in the Crimes Act.

Reasonable limitation of the right to liberty

I am satisfied that any limitation of the right to liberty and security of the person under the new schemes for taking DNA profile samples from suspects and offenders is reasonable because any arrest or detention will not be arbitrary, will be conducted in accordance with procedures established by law, and will require police to inform the person of the reason for the detention. Any limitation of the right is only to the extent necessary to obtain the sample and is reasonable and demonstrably justified. For similar reasons, I am of the view that any interference with the right to freedom of movement is reasonable and demonstrably justified under section 7(2) of the Charter.

Right to humane treatment when deprived of liberty (section 22)

Section 22(1) of the Charter provides that all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person. This right is engaged because the Bill authorises the taking of DNA profile samples while a person is in detention. In my view, the Bill reasonably limits the rights protected in section 22 of the Charter. The Bill protects the right to humane treatment when deprived of liberty by ensuring that a DNA profile sample may only be obtained by reasonable force where a person has refused consent and a senior police officer is satisfied of particular criteria. All persons must first be given the opportunity to give informed consent and if consent is given, to take the sample themselves. If informed consent has been refused, and a senior police officer has authorised the taking of a DNA profile sample, the person may elect to take a mouth scraping themselves.

It is therefore only in very limited circumstances that a police officer may use force to obtain a DNA profile sample. In such cases, section 464Z(3AAA) requires the DNA profile sample to be taken by a medical practitioner or nurse, akin to the process for intimate samples and allows police to use reasonable force to assist the medical practitioner or nurse to take the sample. The Bill will also introduce a new requirement, applicable across the forensic procedure and DNA profile sampling regime, that the least intrusive and least painful method practicable in the circumstances must be used for the taking of a sample.

In addition, police officers are public authorities under the Charter and have a duty under section 38(1) of the Charter to act compatibly with human rights, including the right to humane treatment when deprived of liberty and protection from cruel, inhuman or degrading treatment. In my opinion, these safeguards, as well as the obligation of police officers under section 38(1) of the Charter, will ensure that the new powers to obtain DNA profile samples are a reasonable limitation on the rights protected in section 22 of the Charter.

Protection of children in their best interests (section 17(2))

Section 17(2) of the Charter provides that every child has the right without discrimination to such protection as is in his or her best interests and is needed by him or her by reason of being a child. Allowing DNA profile samples to be taken from a child suspect aged 15 to 17 years in certain circumstances may engage section 17(2) of the Charter. For the reasons that follow, I am of the view that these provisions are compatible with a child’s right to protection in his or her best interests.

In addition to the provisions that apply to all suspect DNA sampling, a senior police officer may only authorise a DNA profile sample from a child aged 15 to 17 where:

• both the child and the child’s parent or guardian have not consented to undergo a forensic procedure; and

• the child is believed on reasonable grounds to have committed, or has been charged with a DNA sample offence.

Importantly, the child and their parent or guardian must be given the opportunity to provide informed consent before a senior police officer can authorise the taking of a DNA profile sample. Informed consent may only be sought if the child is believed on reasonable grounds of having committed a DNA sample offence. This is a higher threshold than applies to adult suspects (who must be suspected on reasonable grounds to have committed an indictable offence). The threshold when asking for consent from a child is the same as that required for arrest to ensure that there is a further level of protection for children, who may be more vulnerable to such requests, and so that it aligns with the requirement for senior police officer authorisation.

In addition, a DNA sample offence is limited to certain serious offences. These include serious violent, sexual and drug offences, including the gross violence offences, rape, home invasion, dangerous driving causing serious injury, carjacking, trafficking in a drug of dependence, armed robbery and aggravated burglary. These offences have been targeted in order to combat high recidivism rates and to assist in the investigation of serious crime. The circumstances in which a DNA profile sample may be taken from a child aged 15 to 17 are therefore more limited than the circumstances that apply to adults. Where those circumstances are satisfied, and the use of force is authorised to take a sample from the child, the procedures outlined above in relation to section 22 of the Charter will apply.

An order from the Children’s Court will continue to be required to take DNA samples from a child suspect where the child is unable to consent by reason of mental impairment, is aged between 10 and 15 years, or where the child is aged 15 to 17 years and is suspected of an offence other than a DNA sample offence. The taking of DNA samples from children under the age of 10 remains prohibited. A court order will also still be required to seek an offender sample from a child, as the new offender sampling regime does not apply to offenders under the age of 18. Maintaining court oversight in both of these circumstances is consistent with various other protections afforded to children in the justice system and reflects the potentially life-long consequences of having their DNA sample retained.

In my opinion, the above safeguards ensure that the new power for a senior police officer to authorise the taking of a DNA profile sample from a child suspect aged 15 to 17 years are compatible with the rights protected in section 17(2). Any limitation on the rights of the child are necessary in order to solve serious crimes and are reasonable and justified for that purpose.

Rights in criminal proceedings (section 25)

The Charter protects certain rights in criminal proceedings, including the right to be presumed innocent until proven guilty and the right not to self-incriminate. While taking DNA profile samples from suspects may only be authorised when a person is suspected or believed of committing certain offences, they do not engage the right to be presumed innocent because they are an investigation tool that may also exonerate a suspect and assist them in the proof of their innocence.

Offender DNA sampling engages the right to be presumed innocent because there is a presumption that the offender is more likely to be involved in other unsolved, or not yet committed, crimes. In my view, such a presumption is justified given that the ability to authorise the taking of a DNA profile sample only arises once an adult is found guilty, or not guilty by mental impairment, of certain serious offences. This is a necessary consequence in order to ensure the efficient and effective investigation of serious crimes. Streamlining this process aligns with the Government’s stance on serious crime, the importance of giving police the tools they need to investigate crime, and to ensure recidivist offenders face the consequences of committing these crimes.

The right not to self-incriminate may be engaged because the new DNA sampling regime requires a suspect or an offender to provide evidentiary material that could be used to prove a case against them. However, I am of the view that the provision of DNA profile samples accords with the underlying principle of the right not to self-incriminate, which is to protect against unreliable confessions or evidence and abuse of power by the state. I am satisfied that the highly reliable nature of DNA evidence coupled with the safeguards in place to ensure there is no abuse of power result in a reasonable limitation on the right not to self-incriminate.

The taking of DNA profile samples from suspects or offenders will not shift the legal burden: it will still be up to the prosecution to prove a person’s guilt. A person can continue to challenge the admissibility and/or relevance of DNA evidence under existing law. Care must be taken when relying on DNA samples as evidence in a case as the linking of a person’s DNA to a crime scene does not, of itself, prove that person’s guilt or even that that person was at the crime scene. This type of evidence will generally form one part of the evidence in a case that will need to be considered in light of all of the other evidence, to determine whether or not the accused person is guilty of the offence. However, this type of evidence is also a crucial investigative tool and the overarching purpose of obtaining truthful and reliable evidence justifies a reasonable limitation on a person’s rights in criminal proceedings.

Validation of previous DNA samples

Right to privacy (section 13(a))

Clause 79 inserts new section 43A into the Corrections Act 1986 to allow a police officer accompanied by a registered medical practitioner or nurse to enter and remain in prison for the purpose of taking a DNA profile sample from a prisoner who is the subject of a direction under section 464ZFAB of the Crimes Act or an authorisation under proposed new section 464ZFAC of that Act.

The Supreme Court of Victoria has held in the case of Pavic v Magistrates’ Court of Victoria & Chief Commissioner of Police that a court order for the taking of a DNA sample from a prisoner is an exception to section 41 of the Corrections Act, in that the court order confers the lawful authority to enter the prison to execute the order and a prisoner cannot refuse the visit. The clear intent of section 464ZFAB of the Crimes Act is to allow a police officer to lawfully direct a registrable offender (whether a prisoner or not) to undergo a forensic procedure for the taking of a DNA sample in the same manner in which a court order would operate. To clarify this intent both in respect to section 464ZFAB and proposed new section 464ZFAC, clause 79 is included in the Bill.

To ensure that new section 43A of the Corrections Act does not cast any doubt on the validity of DNA samples that have been taken in accordance with section 464ZFAB of the Crimes Act, clause 75 is included in the Bill. Clause 75 inserts new section 464ZLA into the Crimes Act, which provides that a sample taken in a forensic procedure conducted in accordance or purported to be conducted in accordance with section 464ZFAB before clause 79 commences is deemed not to have been unlawfully taken only because the person taking the sample had no lawful authority to enter and remain in the prison.

To the extent that the right to privacy is engaged and limited by clause 75 of the Bill, I consider it is justified because any interference will not be unlawful or arbitrary. I consider that clause 75 simply validates lawfully obtained DNA samples in case of any doubt. However, as noted above, even if DNA sampling on a prisoner conducted under section 464ZFAB was found to be unlawful (despite the clear intent of that section) because the person taking the sample had no lawful authority to enter and remain in the prison, clause 75 would validate that sample. Clause 75 is serving the important purpose of validating DNA samples that are authorised by law to be taken from registrable offenders in line with the overall purpose of the Sex Offenders Registration Act 2004 and more broadly, the Crimes Act. Further, this is the least restrictive way to achieve the intent of securing DNA from registrable offenders who are prisoners, as the only other means would be to require the registrable offender to undergo a further forensic procedure for the taking of a DNA sample.

Police harm reforms

Clause 3 of the Bill inserts new offences into the Crimes Act. New section 31C creates an offence of discharging a firearm when reckless to the safety of a police officer or a PSO, and new section 31D establishes an offence of intimidation of a law enforcement officer or a family member of a law enforcement officer. A law enforcement officer includes police officers, PSOs, police custodial officers, youth justice custodial officers and specified prison custodial officers. Clause 4 of the Bill inserts new section 320A of the Crimes Act, which establishes a maximum term of imprisonment for common assault where the person who commits the assault has an offensive weapon readily available and the victim is a police officer on duty or a PSO on duty.

Clauses 6–8 of the Bill amend the Bail and Sentencing Acts so that conduct covered under both new sections 31C and 320A will, in specified circumstances, have additional implications under those Acts. In particular, a court will be required to impose a custodial sentence on any person convicted of the new offence in section 31C, where the offender’s conduct creates a risk to the safety of the victim or any other member of the public, unless certain circumstances apply. This requirement will also apply to the offence of common law assault where the victim is a police officer or a PSO and the assault involves the application of physical force.

There will also be a presumption against bail for these offences when committed in the same circumstances. This presumption means that persons accused of these offences will be required to show compelling reasons as to why they should be granted bail or, in the case of a person accused of the new drug trafficking offence, exceptional circumstances that justify the grant of bail.

Protection from cruel, inhuman or degrading treatment (section 10)

Section 10 of the Charter states that a person must not be treated or punished in a cruel, inhuman or degrading way. The imposition of custodial sentences as outlined above is relevant to these rights because a court is not provided with the opportunity to assess the individual risk of the person and consider whether a non-custodial sentence such as a community correction order or a community based order is appropriate. However, I do not consider that section 10 is limited by these sentencing reforms because there are safeguards to prevent the imposition of a custodial sentence when it is inappropriate or unjust.

The requirement to impose a custodial sentence does not apply to offenders under the age of 18 at the time of offending. Further, the court may sentence a person convicted of these offences to a non-custodial order if the person can establish that one of the following special reasons exist:

• the offender assisted or has undertaken to assist in the investigation or prosecution of an offence

• the offender was aged over 18 but under 21 years of age at the time of the commission of the offence and can prove that due to psychosocial immaturity was unable to regulate his or her behaviour

• the offender can prove he or she has impaired mental functioning

• the court makes a hospital security or residential treatment order or

• there are substantial and compelling reasons that justify a departure from the statutory minimum sentence.

Right to a fair hearing

Section 24 is engaged by the requirement that the court impose a custodial sentence when sentencing a person for the offences outlined above. However, the safeguards outlined above will ensure the imposition of sentences that are just and appropriate in the circumstances, allow the courts to take into account factors that reduce an offender’s culpability and justify a departure from the requirement to impose a statutory minimum sentence. For these reasons, I do not consider that section 24 of the Charter is limited.

Rights in criminal proceedings (section 25)

The creation of a presumption against bail for the new offence of discharging a firearm reckless to the safety of a police officer or a PSO and common assault where the victim is a police officer or a PSO engages section 25 of the Charter. In Victoria, there is a presumption that a person accused of an offence who is held in custody shall be granted bail. This presumption is subject to a number of exceptions, directed at ensuring that an accused person is not a danger to the public, does not commit offences while on bail, and appears at subsequent criminal hearings including their trial.

Due to the serious nature of these offences, it is proportionate, reasonable and appropriate that an offender charged with any of these offences is required to demonstrate why they should be released into the community on bail. Section 25(2) of the Charter contains a list of minimum guarantees a person charged with a criminal offence is entitled to without discrimination. The Bill does not affect these guarantees as it does not limit the right to be informed of any charges against them, to communicate with legal representatives and to obtain legal assistance and generally prepare their defence.

Where a person is charged with intimidating a prison custodial officer or a youth justice custodial officer, it will be a defence for the accused person to prove that the conduct was engaged in without malice in the course of a lawful business, for the purpose of an industrial dispute or for the purpose of engaging in political discussion. This defence is designed to protect persons who are participating in otherwise lawful activity, such as an industrial dispute processes, where their conduct is not malicious but may fall within the definition of ‘intimidation’ for the purposes of this offence. This defence engages the right to be presumed innocent until proved guilty in section 25 of the Charter, as the onus is on the defence to demonstrate that the conduct was lawful. To the extent that the right in section 25 is limited, I consider that the limit is not unlawful or arbitrary.

The Evidence Act 2008 indicates that where an accused bears the burden of proving an exception to a charge, the court must be satisfied that the exception applies on the balance of probabilities. I consider that it is more appropriate that the accused bear the onus of proving the exception. The exceptions relate to matters that are peculiarly within an accused’s knowledge–that is, the purposes for which he or she was engaged in conduct, and whether that conduct was malicious. These matters would be would be unduly onerous on a prosecution to investigate and disprove at first instance.

Freedom of expression (section 15) and freedom of association (section 16)

The new offence of intimidating a law enforcement officer may restrict people from associating or communicating with certain law enforcement officers or members of their family, where that communication or association could reasonably be expected to arouse apprehension or fear in the victim for the safety of the victim or another person. I consider this to be a reasonable restriction on these rights, and one that is necessary to protect law enforcement officers and their families from threatening and otherwise offensive behaviour.

Furthermore, to ensure otherwise lawful activities are not prohibited, the offence contains defences that will allow conduct engaged in without malice in the normal course of a lawful business, industrial disputes, political activities or public affairs communication, where that conduct might otherwise be construed as intimidation of a police custodial officer or youth justice custodial officer.

Drug trafficking reforms

Clauses 14, 16 and 17 of the Bill amend Part 3 of Schedule 11 to the Drugs, Poisons and Controlled Substances Act to prescribe a large commercial quantity (20kg) for 1,4-Butanediol (1,4-BD), Gamma butyrolactone (GBL) and Gamma-hydroxybutyrate (GHB). This will mean that persons who traffick in a large commercial quantity of these substances may be charged with the offence of trafficking a large commercial quantity of a drug of dependence, rather than only trafficking a commercial quantity as is currently the case. The maximum penalty for trafficking a large commercial quantity is life imprisonment and a fine of up to 5,000 penalty units, compared to 25 years imprisonment and a fine of up to 3,000 for trafficking a commercial quantity.

Clause 15 of the Bill amends part 3 of Schedule 11 to the Drugs, Poisons and Controlled Substances Act by reducing the large commercial quantities and commercial quantities of heroin, both when measured in pure form and when mixed or cut with other substances. The amended quantities serve to reduce the availability of these drugs in Victoria by providing courts with access to a higher range of penalties. Finally, clause 10 of the Bill establishes a new offence of commercial trafficking carried out for the benefit of, or at the direction of, a criminal organisation. The penalty for the new offence is life imprisonment and a fine of up to 5,000 penalty units.

Property rights (section 20)

Section 20 of the Charter provides that a person must not be deprived of his or her property other than in accordance with law. Section 20 is engaged by the reforms to the Drugs, Poisons and Controlled Substances Act because they expand the range of cases where powers under the Confiscation Act may apply.

The Confiscation Act establishes the ‘serious drug offender’ asset confiscation regime. The regime provides for the automatic forfeiture of all property in which a serious drug offender has an interest. The regime applies to persons convicted of trafficking large commercial quantities of drugs. By reducing the large commercial quantity for heroin and establishing a large commercial quantity for the three substances outlined above, the Bill exposes a greater number of people to the serious drug offender regime. The Bill also applies the regime to any person convicted of the new criminal organisation trafficking offence.

Under section 20, deprivation of property is permitted where it is appropriately confined and structured. I consider that any additional exposure to the asset confiscation scheme by the reforms to the Drugs, Poisons and Controlled Substances Act is appropriately confined. The Bill only applies the confiscation scheme to very serious cases of trafficking to reflect the significant harm caused by large amounts of drugs and recognise the greater capacity organised criminal groups have to arrange the trafficking of large amounts of drugs. It is reasonable to assume that in these circumstances, much of the offender’s property has been obtained using the proceeds of criminal activity linked to drug trafficking.

Forfeiture of property under the serious drug offender regime will continue to be subject to various important safeguards. For example, section 24 of the Confiscation Act provides that an accused person may retain certain ‘protected’ property, such as ordinary household items, clothing, tools of trade and property used as transport that is under a prescribed value. If a court makes a restraining order regarding property, any person other than the accused can claim an interest in the property by applying for an exclusion order. An exclusion order prevents the confiscation of property where the accused does not have effective control of the property.

Protection of families and children

Section 17 of the Charter states that families are the fundamental group unit of society and are entitled to be protected by society and the State. As outlined above, it also provides that every child has the right without discrimination to such protection as is in his or her best interests and is needed by him or her by reason of being a child. Expanding the types of cases in which the serious drug offender confiscation regime applies has the potential to affect families. Confiscation may impact an offender’s capacity to provide for the needs of dependant family members, including young children.

However, to the extent that section 17 is limited, I consider it is justified in the circumstances. In addition to the safeguards mentioned above, a range of other protections apply to families and children. For example, the Confiscation Act provides that an accused person may apply to the court for access to funds to cover reasonable living and business expenses at any stage throughout the court proceedings. Reasonable expenses include medical expenses, rental or mortgage expenses and school fees. The court may make any orders in relation to restrained property that it considers just. For example, a court may make an order to ensure that an accused person can provide or maintain a reasonable standard of living for their dependant family members.

The Confiscation Act also includes a specific safeguard to ensure that dependant family members will not be left without a home as a result of forfeiture of their residence. Dependant family members may apply to the court for access to a portion of the proceeds of the sale of a residential property to secure alternative accommodation. The court may order the payment if satisfied that the residence is not tainted property, and the dependant person does not have sufficient financial resources to purchase or rent alternative accommodation.

Protection from cruel, inhuman or degrading treatment, fair hearing and rights in criminal proceedings

Like the police harm reforms outlined above, clauses 19 and 21 of the Bill impose additional bail and sentencing implications in relation to the new offence of trafficking a commercial quantity of a drug of dependence for the benefit of an organised criminal group. Courts will be required to impose a custodial sentence on any person convicted of the offence and there will also be a presumption against bail. These reforms engage, but in my opinion do not limit, sections 10, 24 and 25 of the Charter.

Organised criminal groups have a greater capacity and incentive to traffick in large commercial quantities of drugs. The sentencing reforms recognise the seriousness of this offence, by introducing an appropriate sentence to effectively deter people from engaging in this activity. Further, the Bill provides the court with discretion to impose any sentence within the parameter of the maximum and minimum sentence prescribed, taking into consideration the submissions of the accused person. Further, for the reasons I have outlined above, I do not consider that the introduction of a presumption against bail limits the rights contained in section 25 of the Charter.

Right to privacy

Clause 22 of the Bill amends the definition of ‘serious drug offence’ in the Surveillance Devices Act 1999 to include the new organised crime trafficking offence. Section 27 of the Surveillance Devices Act allows law enforcement to use a surveillance device to obtain evidence of a serious drug offence without having to apply to the court for a warrant. I consider that this amendment does not further interfere with the right to privacy. The current definition of serious drug offence includes trafficking a commercial quantity of a drug of dependence. The new offence involves the trafficking of a commercial quantity. Therefore the amendment does not expand the range of cases where law enforcement is able to use a surveillance device without a warrant, as the trafficking of commercial quantities is already captured by the definition.

Powers to close second-hand dealers

Division 1 of Part 4 of the Bill amends the Second-Hand Dealers and Pawnbrokers Act to provide for the temporary and long term closure of second-hand dealer premises (including storage premises) in certain circumstances, including where the Chief Commissioner of Police or the Magistrates’ Court is satisfied the person carrying on the business is not appropriately registered, or where a serious criminal offence is being, has been or is likely to be committed at the premises. No compensation is payable by the State for anything done or arising out of an interim or long term closure order.

Freedom of expression (section 15)

Section 15 of the Charter states that every person has the right to freedom of expression. To the extent that commercial expression may form part of the right to freedom of expression under section 15 of the Charter, new sections 26ZT and 26ZU may interfere with that right by restricting a person’s ability to carry on their business and related commercial enterprises.

However, commercial expression has been treated as of less importance than other forms of personal expression. In light of the limited nature of the right to commercial expression and that the objective of the provisions in question is to protect consumers and the integrity of the second-hand dealer industry, I do not consider the new closure powers arbitrarily or unlawfully limit the right to freedom of expression. The provisions fall within the internal exceptions to the right in section 15(3) of the Charter, as reasonably necessary to respect the rights of other persons, or for the protection of public order. The provisions serve an important purpose and are proportionately tailored to that purpose. The interim closure provisions are appropriately confined both in terms of the circumstances in which an order may be made and the period for which they remain in force. The long term closure provisions may only be made by the court in appropriate circumstances and may be challenged (and, where appropriate, cancelled).

Property rights

New section 26ZT(2) provides that an interim closure notice prohibits a person at the specified premises altering or disposing of any second-hand goods in any way for the period of the notice. To the extent that this may amount to a deprivation of property in that it effectively prevents persons from dealing with their property, this right may be relevant. However, in my view, any deprivation would be justified as it is clearly lawful.

Rights in criminal proceedings

New section 26ZW provides that it is an offence to fail to comply with an interim or long term closure order. The offence does not apply where a person presents or points to evidence that suggests that they did not know, and could not reasonably have been expected to know, that a relevant notice was in force. The exception to the offence therefore imposes an evidential onus on a defendant. However, in my view, an evidential onus does not limit the presumption of innocence. The purpose of the exception to the offence is to avoid harsh outcomes and is based on matters peculiarly within the knowledge of the relevant defendant. Consequently, even if the provision is considered to limit the right to be presumed innocent, it is reasonable and justified and therefore compatible with section 25 of the Charter.

Firearms reforms

Clause 45 of the Bill amends Schedule 2 to the Firearms Act to reclassify lever action shotguns into different license categories. Schedule 2 currently prescribes lever action shotguns as category A firearms. The Bill prescribes lever action shotguns as category B or category D firearms, depending on the capacity of the firearm. Any person who holds a lever action shotgun prior to the commencement of this clause will not be impacted by the amendment as the Bill allows them to continue to hold the firearm under their current license.

Property rights

Section 102 of the Firearms Act indicates that it is an offence for a firearms license holder to acquire a firearm without a permit to acquire. Section 103 of the Firearms Act provides the Chief Commissioner with the power to issue a permit to acquire a firearm to a firearms licensee. Section 104 lists a number of criteria the Chief Commissioner must be satisfied of before granting a permit. The Bill may impact any category A license holder who has been granted a permit to acquire a lever action shotgun before commencement of the Bill, but has not yet acquired the firearm under the permit. New section 221 of the Firearms Act indicates that the permit will cease to be in force upon commencement of the new section, unless the person also holds a category B or category D license, depending on the relevant firearm.

In my view, this amendment does not limit the rights contained in section 20 of the Charter as a permit to acquire does not carry any proprietary rights. A permit is merely a document which grants the licensee the authority to seek to acquire a firearm from the current property owner (for example a firearms dealer), an action that is otherwise not lawful. It does not provide the licensee with a recognised proprietary right, interest or claim in a firearm.

Reforms to the Sex Offenders Registration Act

The Bill makes several changes to the Sex Offenders Registration Act. Clause 47 of the Bill makes a minor amendment to section (1)(a)(ii) of that Act to clarify that one of the purposes of the registration scheme is to require certain offenders who commit sexual offences to keep police informed of their whereabouts and other personal details for a period of time to facilitate the investigation and prosecution of offences that they may commit. Clause 48 of the Bill amends section 63(2) of the Sex Offenders Registration Act. Section 63(2) requires the Chief Commissioner to develop guidelines in relation to the access and disclosure of personal information in the Register. The guidelines will be required to support such access and disclosure occurring only to the extent authorised or permitted in accordance with the Act.

Section 64(2) of the Sex Offenders Registration Act permits the Chief Commissioner and those authorised to have access to the Sex Offenders Register to disclose personal information on the Register to a government department, public statutory authority or court for specified purposes. Clause 49 amends section 64(2) by replacing the ability to disclose information for law enforcement purposes with an ability to disclose personal information for the purpose of the performance of a function of a law enforcement agency under any Act or law. Clause 49 also amends the definitions of government department and public statutory authority to expressly include bodies in foreign jurisdictions.

Finally, clauses 50 and 51 of the Bill amend Schedules 1 and 2 to the Sex Offenders Registration Act to reflect proposed amendments to Commonwealth sex offences under the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017. Specifically, several proposed new offences will be inserted into Schedule 2 to the Sex Offenders Registration Act. These offences relate to using a postal or similar service or carriage service to groom another person to make it easier to procure persons under 16 (proposed new sections 471.25A(1), (2) and (3) and 474.27AA(1), (2) and (3) of the Criminal Code of the Commonwealth), and engaging in conduct for the purposes of providing an electronic service used for child abuse material (section 474.23A(1)). Further, Schedules 1 and 2 to the Sex Offenders Registration Act will be updated to reflect proposed changes to the title and scope of the existing aggravated offences of sexual intercourse or other sexual activity with a child outside Australia (section 272.10(1)) and using a carriage service for sexual activity with a person under 16 years of age (section 474.25B).

Right to privacy and freedom of expression

The existing requirements for registered sex offenders to report personal details to police engages privacy rights, as do the proposed changes to how police may use that information. I accept that it is important that there are appropriate restrictions on how information on the Sex Offenders Register may be accessed and disclosed. However, it is also imperative that Victoria Police be permitted to proactively use the information reported to them in accordance with the Act to manage registered sex offenders and the risk they pose to the community both locally and internationally, and assist in the police investigation and prosecution of any offending, whether sexual in nature or otherwise, that the person may have committed or may commit in the future.

For these reasons, it is my view that disclosure of personal information in the above circumstances is compatible with the right to privacy, as any resulting interference with an offender’s privacy will be lawful and not arbitrary. It is also important to note that strong protections continue to apply to information on the Sex Offenders Register. This is most clearly illustrated by the continuing operation of the offence in section 64(1) of the Sex Offenders Registration Act, which prohibits a person authorised to have access to the Register or any part of the Register to disclose any personal information on the Register other than in accordance with the Act.

I also acknowledge that the amendments to Schedules 1 and 2 to the Sex Offenders Registration Act also engage the right to privacy, as well as freedom of expression given that all adults who are sentenced for a sexual offence listed in Schedule 1 or 2 must be placed on the Sex Offender Register. Statements of Compatibility for previous Bills amending the Sex Offenders Registration Act have explained how registration engages rights protected under the Charter and I do not think it is necessary to repeat that analysis here. To the extent that these rights might be further limited by clauses 50 and 51 of the Bill, I consider it to be reasonable and demonstrably justified in accordance with section 7(2) of the charter in light of the overall purpose of Sex Offenders Registration Act. The proposed new and amended Commonwealth offences are designed to capture reprehensible behaviour committed in relation to children and I consider that adults sentenced for these proposed offences must be placed on the Sex Offenders Registration Act to protect children from sexual abuse.

Other reforms to the Confiscation Act

Property rights (Section 20)

The inclusion of additional offences in Schedules 1 and 2 of the Confiscation Act extends the operation of the asset forfeiture scheme under that Act. The proposed extension of the existing powers raises property rights but I consider it is appropriately confined and structured.

The power to deprive a person of their property under the extended powers is conferred by statute and is intended to deprive people of the proceeds of crime, to disrupt further criminal activity by preventing the use of property, to deter others from engaging in criminal activity and to undermine the profitability of serious criminal activity. The Confiscation Act also provides mechanisms to enable the preservation of assets to facilitate compensation and restitution for victims of crime.

The forfeiture of property will only occur in accordance with clear statutory procedures. Consequently, any forfeiture will be in accordance with law. Further, the addition of these new offences is not arbitrary, but serves a clear purpose, namely to deprive people of the profits of their criminal activity and to repay the community for any loss suffered by the commission of such offences. The Confiscation Act contains provisions that enable third parties with an interest in relevant property or persons who can demonstrate hardship to apply to the court to exclude all or any assets.

A transitional provision provides that proceedings under the Act in relation to these offences will be available irrespective of when an offence is alleged to have been committed. In other words, a person subject to proceedings on foot in relation to these offences might be subject to proceedings under the Confiscation Act as a consequence of these amendments and an offence committed prior to the amendments might also be the subject of proceedings under the Act.

I am satisfied that the transitional arrangement is a reasonable limitation on the right to property as asset confiscation proceedings are not punitive in nature, they deprive a person of property acquired from or used for criminal offending. In addition, the ability to bring asset confiscation proceedings relies on underlying criminal conduct and any proceedings under the Confiscation Act afford a person affected the right to participate and challenge matters before a court.

Lisa Neville, MP

Minister for Police and Emergency Services

Second reading

Ms NEVILLE (Bellarine—Minister for Water, Minister for Police and Emergency Services) (10:09): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

The Justice Legislation Amendment (Police and Other Matters) Bill 2019 reintroduces a range of reforms that were being considered by the previous under the prorogued Justice Legislation (Police and Other Matters) Bill 2018.

As was previously outlined in this place, these reforms deliver on a number of the commitments outlined in the Government’s first and second Community Safety Statements and are aimed at keeping the community safe. The reforms are being made to a range of Acts, including the Crimes Act 1958, Drugs, Poisons and Controlled Substances Act 1981, Second-Hand Dealers and Pawnbrokers Act 1989, Firearms Act 1996, Victoria Police Act 2013, Sex Offenders Registration Act 2004 and Confiscation Act 1997. I will outline each of the main reforms once again.

1. Police DNA powers

Streamlining and expanding police powers to collect DNA evidence has the potential to significantly enhance Victoria Police’s ability to keep the community safe.

Victoria Police indicate that there are approximately 11,000 unsolved crimes in Victoria where an unidentified DNA sample has been identified and recorded. These crimes range from rapes and murders to serious assaults and burglaries.

Under current practice, however, Victoria’s level of forensic capture is not as expansive as some other states. The reforms in this Bill will address this matter and result in improved forensic capability which is essential to modern and contemporary policing.

The Bill will provide Victoria Police with new streamlined powers to take DNA samples from persons suspected of committing, or found to have committed a serious offence. These new powers will enhance Victoria Police’s ability to identify criminals, particularly serious recidivist offenders.

The additional evidence will not only solve serious and high-volume crime, but through successful prosecutions will prevent further offending and the resultant significant impact on victims in our community. It will also reduce the administrative burden on police and courts.

The Bill achieves these changes by introducing a new class of procedure called a ‘DNA profile sample’. A DNA profile sample will include procedures for the taking of a DNA sample by way of a mouth scraping, saliva, a pin prick to take blood or a sample of hair with the root.

These changes give police the power to authorise the taking of a DNA profile sample from adults found guilty, or not guilty because of mental impairment, of an indictable offence or a specified summary offence. These changes mean that police will no longer need to seek a court order and demonstrate to the court that taking the sample is justified in all the circumstances. This recognises that there are no excuses when it comes to serious crimes, and highlights that Victoria Police will be provided with the powers they need to deal with offenders.

The reforms will also give a senior police officer the power to authorise the taking of a DNA profile sample, without a court order, from persons suspected of committing serious offences. These powers will apply to adults suspected of committing an indictable offence as well as children aged 15 to 17 years who police believe on reasonable grounds have committed a DNA sample offence. A list of DNA sample offences will be set out in new Schedule 9 to the Crimes Act, and capture serious violent, sexual and drugs offences including gross violence offences, rape, home invasion, dangerous driving causing serious injury, carjacking, trafficking in a drug of dependence, armed robbery and aggravated burglary.

To reflect the fact these suspects are yet to be found guilty, DNA may only be taken in two circumstances: either with the consent of the suspect (and where the suspect is aged 15 to 17 years, the consent of their parent or guardian), or where the suspect does not consent, by the authorisation of a senior police officer. First, if a police officer is satisfied that the carrying out of the procedure is justified in all of the circumstances, the police officer may request the suspect to provide a DNA sample by consent. For 15 to 17 year old suspects, their parent or guardian will also need to consent. This will allow DNA profile samples to be obtained by consent without having to arrest the person under suspicion, which may assist with the elimination of an innocent suspect and free up police resources to focus on other suspects.

Second, if the suspect does not consent, the taking of a DNA profile sample may be authorised by a senior police officer. The senior police officer would have to be satisfied that there are reasonable grounds to believe that the suspect committed the indictable offence or DNA sample offence if the suspect is a child, and that the carrying out of the procedure is justified in all the circumstances. It is important to emphasise that the senior police officer’s ability to authorise such a procedure applies only to suspects who are in lawful custody.

A court order will still be required under the existing DNA powers in the Crimes Act 1958, which will continue to operate alongside the new powers in specific circumstances.

Existing requirements for how police may use DNA samples, and the length of time that samples may be retained, will stay the same. This means that if police do not charge the suspect, or the charges are withdrawn, or the charges are not proven, the DNA sample must be destroyed. DNA samples taken from adult suspects who are subsequently found guilty or not guilty by mental impairment, may be retained indefinitely without a court order.

For child suspects, a court order will still be required to retain the DNA sample, which requires the court to consider the seriousness of the circumstances of the offence and that the making of the order is justified. A court order will also be required to seek an offender sample from a child. Maintaining court oversight in both of these circumstances is consistent with various other extra protections afforded to children in the justice system and reflects the potentially life-long consequences of having their DNA sample retained.

The taking of DNA profile samples will be governed by the current legislative requirements to ensure that the procedures are carried out safely and with respect to the person’s privacy. For example, the person may elect to take the mouth scraping themselves rather than have another person take it for them. If a blood sample is to be taken, only a medical practitioner or nurse will be able to take that sample. For children, the procedure must be witnessed by their parent or guardian or an independent person. The Bill also includes a new requirement that police must use the least intrusive and least painful method practicable in the circumstances. This provides an additional safeguard that applies to all forensic procedures, not just when taking DNA profile samples, and regardless of how the procedure was authorised.

The admissibility of any evidence obtained as a result of a DNA profile sample will be a matter for the courts and will be a question for the trier of fact in each case. As is currently the case, the evidence will generally be inadmissible in proceedings against the person if the police fail to comply with the requirements set out in the legislation. The current exceptions will continue to exist, for example where the prosecution satisfies the court on the balance of probabilities that the circumstances justify the reception of the evidence. The Crimes Act 1958 makes clear that the probative value of the evidence does not of itself justify the reception of the improperly obtained evidence.

Finally, to ensure that these new powers are being used in the manner intended, the Bill also provides that the Independent Broad-based Anti-corruption Commission (the IBAC) will have oversight of Victoria Police’s use of these powers, and the Attorney-General will also be able to make a complaint to the IBAC the use of these powers.

2. Protecting police, PSOs and various custodial officers from harm

The Bill also provides increased protections for police officers, protective services officers or PSOs, police custody officers or PCOs, custodial officers, youth custodial officers and their families from offenders who harm, or seek to harm them.

These officers play a vital role in keeping Victorian’s safe and upholding the administration of justice. With this role comes an intrinsic high level of risk. To recognise this risk the Victorian Government announced the development of reforms to target any person who seeks to harm them or place them in danger. The Government delivered a first stage of reforms to address this risk of harm through the Crimes Legislation Amendment (Protection of Emergency Workers and Others) Act 2017, which introduced new offences targeting the ramming of police cars and other circumstances where vehicles are used in such a way that endangers our emergency workers.

This Bill delivers the second stage of reforms by establishing new offences and related criminal sanctions. These reforms will create a strong deterrent to engaging in behaviour that may harm or intimidate our police, PSOs, PCOs and their families.

New section 31C of the Crimes Act 1958 creates an offence of discharging a firearm when reckless to the safety of a police officer or a PSO. This offence carries a maximum penalty of 15 years imprisonment.

New Section 31D of the Crimes Act establishes an offence of intimidation of a police officer, PSO, police custody officer, custodial officer, youth justice custodial officer or a family member, where the intimidation relates to the victim’s status as such an officer or a familial relationship. This offence will be punishable by a maximum of 10 years imprisonment. The Bill clarifies that for the purpose of the new offence, a person uses intimidation if:

• the person engages in conduct that could reasonably be expected to arouse apprehension or fear in the victim for the safety of the victim; and

• either the person knows, or ought to have known, that such conduct would be likely to arouse that apprehension or fear.

This means that the offence will not target low level antisocial language or behaviour, including by individuals in custody, that could not be reasonably expected to arouse apprehension or fear. In a custodial setting there are procedures that deal with intimidating language and behaviour and these will continue to operate in conjunction with the new offence.

New Section 320A of the Crimes Act establishes a higher maximum term of imprisonment for common assault where the person who commits the assault has an offensive weapon readily available and the victim is a police officer on duty or a PSO on duty. The maximum penalty for this aggravated assault charge, will be 10 years imprisonment, or 15 years where the weapon is a firearm or imitation firearm.

A range of sentencing and bail consequences will apply to these offences where:

• in the case of the recklessly discharging a firearm offence, the offence created a risk to the physical safety of the victim or any member of the public.

• in the case of the aggravated common assault provisions, the assault involves physical force.

In these circumstances, the Bill provides that:

• a custodial sentence must be imposed unless the person can establish special reasons

• the presumption in favour of concurrent sentencing is reversed, creating a presumption of cumulative sentencing

• the Bail Act 1991 will require that bail be refused unless the accused can show a compelling reason why bail ought to be granted.

3. Increased penalties for commercial drug trafficking

This Bill makes three sets of reforms to enable higher penalties to be imposed on commercial level trafficking of heroin, 1,4-Butanediol or 1,4-BD and similar drugs, as well as commercial trafficking at the direction, or for the benefit, of a criminal organisation.

First, the Bill will make the possession and trafficking of 20 kilograms or more of the drugs 1,4-BD, gamma butyrolactone or GBL, and gamma-hydroxybutyrate or GHB subject to the more serious offence and penalties that apply to large commercial trafficking. This will mean that those most responsible for peddling these dangerous drugs face higher penalties and confiscation powers and ensure there is a greater deterrent for anyone else thinking of doing the same.

Currently there is no large commercial quantity legislated for these drugs. The change means that the maximum penalty for large scale trafficking of these drugs in an amount of 20 kilograms or over will rise from 25 years imprisonment and a fine of up to 3,000 penalty units, which is the penalty for commercial trafficking, to life imprisonment and a fine of up to 5,000 penalty units.

Victoria Police and the Office of Public Prosecutions have reported an increase in the importation, trafficking and use of 1,4-B. 1,4-BD is an industrial solvent that when ingested, is rapidly absorbed and metabolised to form GHB, which acts as a powerful depressant and disinhibitor. Another industrial chemical, GBL, similarly metabolises to form GHB when ingested.

Users of these drugs are at particular risk of overdose. This was seen in February 2017, when more than 20 people were taken to hospital after apparently taking what they thought was GHB at the Sidney Myer Music Bowl. Police suspect that the drug they actually took was 1,4-BD.

The Bill also introduces new laws targeting heroin dealers and organised crime groups that are involved in trafficking drugs.

The Bill will reduce the large commercial and commercial trafficable quantities for heroin—both when measured in its pure form and when mixed or cut with other substances. This will ensure more cases of trafficking in heroin are subject to the higher penalties that large commercial and commercial trafficking carry. The new large commercial trafficable quantities for heroin will be reduced from 750 grams to 500 grams of pure heroin and from 1 kilogram to 750 grams when mixed. The commercial trafficable quantities will be reduced from 250 grams to 50 grams of pure heroin and from 500 grams to 250 grams when mixed.

These new quantities are in line with the equivalent quantities for methylamphetamine that the Government established last year and recognises the significant harm heroin has on society. The reduced quantities mean, for example, that persons found to have trafficked anywhere between 250 and 500 grams of diluted heroin, could now find themselves being prosecuted for commercial trafficking instead of simple trafficking. Similarly, those found to have trafficked between 750 grams and 1 kilogram of diluted heroin, could now face large commercial trafficking charges.

In addition, offenders may also face asset confiscation under the Confiscation Act.

The Bill also strengthens Victoria’s drug laws against organised crime by creating a new offence of trafficking in a commercial quantity of a drug of dependence, carried out for the benefit of, or at the direction of, a criminal organisation. The maximum penalty for the new offence is life imprisonment and a fine of up to 5,000 penalty units. This is substantially higher than the maximum penalty for the existing commercial trafficking offence of 25 years imprisonment and a fine of up to 3,000 penalty units. Convicted offenders will also become subject to the ‘serious drug offender’ asset confiscation regime under the Confiscation Act. The regime provides for the automatic forfeiture of all property in which the serious drug offender has an interest.

The aim is to provide the strongest deterrent to commercial trafficking for the benefit of, or at the direction of, organised crime groups and to impose the harshest possible penalty for this crime. This recognises not only the devastating effects of illicit drugs on drug users and their families and the broader economic and social costs of illicit drugs to the Victorian community, but the grave risks and harms to the broader Victorian community arising from organised criminal activity.

4. Powers to close second-hand dealers and disrupt organised crime

To enable police to address and disrupt suspected serious criminal activity among second-hand dealers, including the auto-wrecking and scrap metal industry, this Bill provides for the interim and long-term closure of these dealers operating without the required registration or who police suspect are engaging in serious criminal activity. These new powers will help police prevent the corruption of legitimate industries by criminal activity and to protect consumers by removing the financial incentive of those who seek to infiltrate these industries for illegal means.

The Chief Commissioner of Police may issue an interim closure notice prohibiting a second-hand dealer from operating or disposing of any second-hand goods for 72 hours. The Chief Commissioner may also apply to the Magistrate’s Court for the long-term closure of a second-hand dealer.

Operating in contravention of either of the interim closure notices or long-term closure orders will result in a fine of up to 200 penalty units; currently over $32,000. No compensation will be provided to affected dealers for any loss as a result of the closure.

These reforms complement recent amendments introduced by Government, which created a ban on cash payments for scrap metal and other measures to disrupt the trade in stolen vehicles and deter organised crime infiltration of the scrap metal and auto-parts industry. They will also bring Victoria in line with scrap metal laws in place in New South Wales, thereby ensuring there is no incentive for criminal activity surrounding scrap metal to shift their operations from NSW to Victoria.

Further reforms to the Second-Hand Dealers and Pawnbrokers Act 1989 will increase the range of offences for which police can issue on-the-spot infringement notices to second-hand dealers, and will allow the regulations to prescribe higher penalties if the offence is committed by a body corporate rather than an individual. This will ensure that lower level instances of non-compliance with the Act can be dealt with efficiently and effectively.

5. Enabling restorative engagement for victims of sex discrimination and sexual harassment within Victoria Police

This Bill also introduces reforms to support police who are victims of sex discrimination and sexual harassment by other members of Victoria Police.

In the Victorian Equal Opportunity and Human Rights Commission’s independent report into sex discrimination and sexual harassment within Victoria Police, it was found that serious and chronic underreporting of sex discrimination and sexual harassment within the force was predominant and that changes are needed to create a safer reporting environment. Notably, victims of discrimination and harassment were unwilling to make complaints and rely on Victoria Police’s disciplinary processes to address the behaviour and bring perpetrators to account. Victoria Police and the Government is committed to addressing the recommendations made in the report, including to implement a redress scheme, which uses restorative engagement strategies to address harm experienced by victims. Restorative engagement is designed to address the harm caused and provide a process for healing and formal acknowledge by Victoria Police, while also prompting cultural change by offering a safe environment for victims to come forward.

Victoria Police is developing a model for the scheme, whereby an independent body would facilitate restorative engagement conferences in which victims of sexual harassment and sex discrimination can describe the harm they experienced, and receive an acknowledgement of that harm. In the meantime, the Victorian Equal Opportunity and Human Rights Commission is working with Victoria Police and providing a similar function through their victim-centred conciliation service. This Bill facilitates the implementation of the independently administered restorative engagement scheme by removing legislative barriers to the effective operation of victim-centred processes.

Specifically, the amendments will allow employees of Victoria Police to participate in a process that addresses harm without breaching other requirements under the Victoria Police Act 2013 and the Protected Disclosure Act 2012. For example, it is necessary that a senior officer representing Victoria Police in such a process is not required to report any misconduct disclosed to them in order to facilitate trust in the process. Rather, it would be up to the victim to decide whether they wish to make a formal complaint that then triggers mandatory reporting obligations under section 167 of the Victoria Police Act.

The Bill also makes a separate but related reform to the Victoria Police Act by exempting a police officer or PSO who has been victim of discrimination, sexual harassment or victimisation by another police officer or PSO, from the existing requirements to report all misconduct. This will mean that a victim will not commit a breach of discipline for failing to report misconduct that the victim does not want reported or investigated. The exemption will also apply to the partners of any such victims where they too are a police officer or PSO.

6. Changes to the Sex Offenders Register to improve information-sharing

The Bill amends the Sex Offenders Registration Act 2004 to permit the sharing of information on the Sex Offenders Register more broadly within Victoria Police and with international law enforcement agencies for investigation and intelligence purposes. This will ensure that information reported to police by registered sex offenders in accordance with their reporting obligations can be more effectively used to solve crime both sexual and non-sexual crime and keep the community safe.

In particular, the Bill amends section 64 of the Act to provide that information may be shared (including within Victoria Police and with other government departments and public statutory authorities and international police counterparts) for “the performance of a function of a law enforcement agency under any Act or law” rather than for “law enforcement purposes”. While the difference may appear subtle, it will provide Victoria Police with greater confidence of the circumstance in which information on the Register may be shared, particularly the sharing of information for intelligence purposes, since Victoria Police’s functions are clearly set out in section 9 of the Victoria Police Act.

These amendments therefore aim to improve Victoria Police’s ability to target and manage individual sex offenders, identify appropriate management strategies for particular offenders, and identify changes in a registered sex offenders risk factors. Sharing information with international agencies will also enable those international bodies to assess the risks of registered sex offenders who have moved overseas and facilitates greater information sharing with them in return.

The Bill also adds proposed new Commonwealth child sex offences, currently before the Commonwealth Parliament, to the lists of registrable offences under the Sex Offenders Registration Act. The new offences relate to conduct involving the grooming of persons to procure children for sexual activity, and the use of electronic services to enable the exchange of child abuse material. Adding these offences will ensure that persons sentenced to them in Victoria will be added to the Sex Offenders Register. The commencement provisions of the Bill ensure that these offences will only commence if the Commonwealth offences are passed.

7. Implementing key firearms changes

Last year, the Council of Australian Governments (COAG) agreed to an updated National Firearms Agreement which has required two reforms to Victoria’ Firearms Act 1996.

First, this Bill will reclassify lever action firearms from the current lowest category of firearm to a higher category. Under the 1996 NFA, lever action shotguns were classified as ‘Category A’ firearms, which is the least restrictive firearm category. By contrast, the 2017 NFA provides that lever action shotguns have been reclassified to ‘Category B’ firearms where the magazine capacity is no greater than 5 rounds, and ‘Category D’ firearms where the magazine capacity is greater than 5 rounds. Every jurisdiction is implementing this change in their respective firearms legislation and the revised classification brings this category of firearm more in line with the classification of lever and pump action centre fire rifles.

In line with other jurisdictions, the Bill provides for grandfathering arrangements for persons in whose name a lever action shotgun was registered immediately before the commencement of the reclassification and the possession, use or carriage of the shotgun was authorised at that time by the licence. Interstate visitors whose home jurisdictions’ have similar grandfathering schemes will also be covered under these arrangements.

Second, the Bill remove the requirement that firearms licences state the residential address of the licensee, removing the risk of burglary and firearm theft that could arise should a person lose their licence or have it stolen.

In addition, the Bill amends the existing firearms trafficking offences to ensure that they apply to all stolen firearms, whether registered or not. Currently, the offences of possessing a trafficable quantity and disposing or acquiring a trafficable quantity of firearms only apply to unregistered firearms.

In practice, a registered firearm will not be treated as unregistered when it is stolen or lost or otherwise is in the illicit firearms market. Rather, it is only when the firearm is destroyed or was never registered that it will be classified as ‘no longer registered’ or as ‘unregistered’, respectively. This can lead to an illogical outcome where a person steals registered firearms or otherwise unlawfully possess a trafficable quantity of registered firearms but would not necessarily be charged with the trafficking offences. The Bill will amend those offences contained in sections 7C and 101A of the Firearms Act 1996 to better focus on those operating outside of the regulated system for the possession, acquisition and disposal of firearms.

8. Miscellaneous

Finally, the Bill will make a range of other miscellaneous amendments to various Act, including to:

• enliven confiscation powers in relation to a range of offences under the Second-Hand Dealers and Pawnbrokers Act, the Australian Consumer Law (Victoria), Estate Agents Act 1980, and the Conveyancers Act 2006; and

• amend the Victoria Police Act to ensure that maternity leave is treated the same as other forms of parental leave when calculating the probationary period served by a Victoria Police officer or a PSO.

These are important reforms that will make our community safer.

I commend the Bill to the house.

Mr SOUTHWICK (Caulfield) (10:09): I move:

That the debate be now adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned until Wednesday, 20 February.