Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022

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Passed and Assented to

Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022

Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022

No. of 2022

TABLE OF PROVISIONS Clause Page

Part 1—Preliminary 1

1 Purposes 1 2 Commencement 3

Part 2—Consent 4

Division 1—Amendment of Crimes Act 1958 4

Subdivision 1—Preliminary amendment regarding not using, removing or tampering with condom 4

3 Consent 4

Subdivision 2—General amendments regarding definition of consent 4

4 Definitions—Subdivision (8) of Division 1 of Part I 4 5 Section 36 substituted and new section 36AA inserted 5 6 Section 37A amended 8

Subdivision 3—Reasonable belief in consent 9

7 Definitions—Subdivision (8) of Division 1 of Part I 9 8 Section 36A substituted 9 9 Heading to section 36B amended 10 10 Assault with intent to commit a sexual offence 10

Subdivision 4—Miscellaneous amendments 11

11 Definitions—Subdivision (8) of Division 1 of Part I 11 12 Defence—accused did not consent 11 13 Defence—marriage or domestic partnership 11 14 Defence—reasonable belief in marriage or domestic partnership 11

Division 2—Amendment of Jury Directions Act 2015 12

15 Direction on consent 12 16 Direction on reasonable belief in consent 12

Clause Page

Division 3—Amendment of Sentencing Act 1991 12

17 Definitions 12 18 Schedule 1 amended 12

Division 4—Amendment of Sex Work Decriminalisation Act 2022 13

19 New section 39A inserted 13

Part 3—Image-based sexual offences 14

Division 1—Amendment of Crimes Act 1958 14

20 Definitions 14 21 Distributing child abuse material 14 22 New Subdivision (8FAAB) inserted in Division 1 of Part I 15

Division 2—Amendment of Criminal Procedure Act 2009 30

23 Definitions 30 24 Meaning of sexual offence 30

Division 3—Amendment of Confiscation Act 1997 30

25 Application for disposal order 30

Division 4—Amendment of Summary Offences Act 1966 31

26 Heading to Division 4A of Part I amended 31 27 Definitions 31 28 Location immaterial 31 29 Observation of genital or anal region 31 30 Sections 41B and 41C repealed 31 31 Section 41D substituted 32 32 Sections 41DA and 41DB repealed 32 33 Search warrant 32 34 Seizure of things not mentioned in the warrant 32

Division 5—Amendment of Serious Offenders Act 2018 33

35 Schedule 3 amended 33

Division 6—Amendment of Worker Screening Act 2020 33

36 Schedule 3 amended 33 37 Schedule 4 amended 34

Division 7—Amendment of Victims of Crime (Financial Assistance Scheme) Act 2022 34

38 Definitions 34

Division 8—Amendment of Spent Convictions Act 2021 35

39 Definitions 35

Clause Page

iii

Division 9—Amendment of Sentencing Act 1991 35

40 Definitions 35 41 Court not to have regard to previous good character or lack of

previous findings of guilt or convictions in certain circumstances 35

Part 4—Jury directions 36

Division 1—Amendment of Jury Directions Act 2015 36

Subdivision 1—Directions about sexual offences 36

42 Definitions—Part 1 36 43 New Division 1AA of Part 5 inserted 36 44 Heading to Division 1 of Part 5 substituted 37 45 Application of Division 38 46 Direction on consent 38 47 Direction on reasonable belief in consent 38 48 New Division 1A of Part 5 inserted 39 49 Part 3 does not apply 45 50 Definitions—Division 2 of Part 5 45 51 Prohibited statements and suggestions in relation to

complainants, delay and unreliability 45 52 Direction on delay in complaint or lack of complaint 46 53 Section 53 repealed 46 54 Definitions—Division 3 of Part 5 46 55 Direction on difference in complainant's account 47 56 New Divisions 4 and 5 of Part 5 inserted 47

Subdivision 2—Explanation of beyond reasonable doubt in all criminal trials 51

57 Section 63 substituted 51 58 Section 64 amended 53

Division 2—Amendment of Sex Work Decriminalisation Act 2022 54

59 New Division 8A of Part 7 inserted 54

Part 5—Miscellaneous amendments to Criminal Procedure Act 2009 55

Division 1—Uncertainty about time when sexual offence occurred 55

60 New section 7B inserted 55

Division 2—Pre-trial cross-examination at committal hearing 56

61 Contents of case direction notice 56 62 Leave required to cross-examine other witnesses 56 63 New section 124A inserted 57 64 Cross-examination of witnesses 58 65 Leave to cross-examine witness on different issue 58

Clause Page

66 Order for accused to cross-examine witness before trial in certain sexual offence cases 58

Division 3—No cross-examination in certain committal hearings 58

67 No cross-examination in certain sexual offence cases 58

Division 4—Ground rules hearings 58

68 Definitions 58 69 Application of Division—Division 1 of Part 8.2A 59 70 New section 389AB inserted 59 71 Ground rules hearing to be held 60 72 Directions which may be given at ground rules hearings 60

Division 5—Modernisation of references to chastity 61

73 Section 341 amended 61

Division 6—ASIC investigators witnessing statements 61

74 Schedule 3 amended 61

Division 7—Transfer of summary offences 61

75 Definitions 61 76 Transfer of summary offences that are related offences on or

after committal 62 77 Supreme Court may order that accused be tried in County Court

or Supreme Court 62 78 Heading to Division 1 of Part 5.8 amended 62 79 New section 241A inserted 62

Division 8—Explanation of beyond reasonable doubt in general jury guide 63

80 General jury guide 63

Division 9—Outdated cross-reference to persistent sexual abuse offence 63

81 Schedule 1 amended 63

Part 6—Confidential communications and protected health information 64

82 Definitions 64 83 New section 32BA inserted 65 84 Section 32C amended 66 85 New sections 32CA, 32CB, 32CC, 32CD, 32CE and 32CF

inserted 67 86 Restriction on granting leave 72 87 Limitations on privilege 73 88 Ancillary orders available on a granting of leave 73

Clause Page

Part 7—Extension of temporary provisions 75

Division 1—Amendment of Court Security Act 1980 75

89 Temporary measures in response to COVID-19 pandemic 75

Division 2—Amendment of Open Courts Act 2013 75

90 Certain measures in relation to proceeding or hearing do not contravene rules of law relating to open justice 75

Part 8—Miscellaneous and transitional provisions 76

91 Crimes Act 1958 76 92 Criminal Procedure Act 2009 77 93 Evidence (Miscellaneous Provisions) Act 1958 79 94 Jury Directions Act 2015 80

Part 9—Repeal of this Act 84

95 Repeal of this Act 84 ═════════════

Endnotes 85

1 General information 85

Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022†

No. of 2022

[Assented to ]

The Parliament of Victoria enacts:

Part 1—Preliminary 1 Purposes

The main purposes of this Act are— (a) to amend the Crimes Act 1958 in relation to

consent and sexual offences; and (b) to insert image-based sexual offences into

the Crimes Act 1958 and— (i) to amend the Confiscation Act 1997 to

provide for disposal orders in respect of those images; and

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(ii) to remove related offences from the Summary Offences Act 1966; and

in sexual offence trials; and (ii) to require a trial judge to give the jury

an explanation of the phrase "proof beyond reasonable doubt"; and

(d) to make miscellaneous amendments to the Criminal Procedure Act 2009, including in relation to—

(i) what sexual offences an accused person may be charged with, and found guilty of, if there is uncertainty about the time at which the offence was committed and there was a change in the relevant law around that time; and

(ii) the cross-examination of witnesses in committal proceedings; and

(iii) ground rules hearings; and (iv) outdated references to chastity; and (v) the transfer of proceedings for

summary offences between the Supreme Court and the County Court; and

(vi) explanations of the meaning of the phrase "proof beyond reasonable doubt" in a general jury guide; and

(e) to amend Division 2A of Part II of the Evidence (Miscellaneous Provisions) Act 1958—

(i) to provide that the protections that Division affords in relation to confidential communications are

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extended, in criminal proceedings, to certain health information; and

(ii) to modify the procedures applying under that Division, including to give protected persons a right to make submissions about the disclosure of a confidential communication or protected health information; and

(f) to extend the operation of certain temporary provisions in the Court Security Act 1980 and the Open Courts Act 2013.

2 Commencement (1) This Act (other than Parts 2, 3, 4 and 6,

Divisions 1, 2, 4 and 8 of Part 5 and sections 91, 93 and 94) comes into operation on the day after the day on which it receives the Royal Assent.

(2) Section 3(2) comes into operation on the day after the day on which this Act receives the Royal Assent.

(3) Division 1 of Part 5 comes into operation on 1 January 2023.

(4) Subject to subsections (5) and (6), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(5) If a provision referred to in subsection (4) (other than section 91 or 94 or a provision of Part 4 or Division 8 of Part 5) does not come into operation before 30 July 2023, it comes into operation on that day.

(6) If section 91 or 94 or a provision of Part 4 or Division 8 of Part 5 does not come into operation before 1 January 2023, it comes into operation on that day.

Part 2—Consent

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Part 2—Consent

Division 1—Amendment of Crimes Act 1958

Subdivision 1—Preliminary amendment regarding not using, removing or tampering with condom

3 Consent (1) After section 36(2)(k) of the Crimes Act 1958

insert— "(ka) the person engages in the act on the basis

that a condom is used and either— (i) before or during the act, any other

person involved in the act intentionally removes the condom or tampers with the condom; or

(ii) the person who was to use the condom intentionally does not use it;".

(2) If section 5 comes into operation before subsection (1), subsection (1) is repealed on the day on which section 5 comes into operation.

Subdivision 2—General amendments regarding definition of consent

4 Definitions—Subdivision (8) of Division 1 of Part I In section 35(1) of the Crimes Act 1958, for the definition of consent substitute— "consent—for the purposes of this Subdivision

and Subdivisions (8A) to (8E)—see sections 36 and 36AA;".

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5 Section 36 substituted and new section 36AA inserted

For section 36 of the Crimes Act 1958 substitute—

"36 Consent (1) Consent means free and voluntary

agreement. Note

See also sections 37A and 37B which set out the objectives of Subdivisions (8A) to (8G) and the guiding principles that the courts are to have regard to in interpreting and applying those Subdivisions, including this section and section 36AA.

(2) A person does not consent to an act just because they do not resist the act verbally or physically.

(3) A person does not consent to an act just because they consented to—

(a) a different act with the same person; or (b) the same act with the same person at a

different time or place; or (c) the same act with a different person; or (d) a different act with a different person. 36AA Circumstances in which a person does not

consent (1) Circumstances in which a person does not

consent to an act include, but are not limited to, the following—

(a) the person does not say or do anything to indicate consent to the act;

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(b) the person submits to the act because of force, a fear of force, harm of any type or a fear of harm of any type, whether to that person or someone else or to an animal, regardless of—

(i) when the force, harm or conduct giving rise to the fear occurs; and

(ii) whether it is, or is a result of, a single incident or is part of an ongoing pattern;

Examples

Each of the following is a type of harm that can be done to a person as described in this paragraph—

(a) economic or financial harm;

(b) reputational harm;

(d) harm to the person's employment;

(e) family violence involving psychological abuse or harm to mental health;

(f) sexual harassment.

(i) regardless of when the coercion or intimidation occurs; and

(ii) whether it is, or is a result of, a single incident or is part of an ongoing pattern;

(d) the person submits to the act because the person is unlawfully detained;

(e) the person submits to the act because the person is overborne by the abuse of a relationship of authority or trust;

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(f) the person is asleep or unconscious; (g) the person is so affected by alcohol

or another drug as to be incapable of consenting to the act;

(h) the person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the act; Note

This circumstance may apply where a person gave consent when not so affected by alcohol or another drug as to be incapable of consenting.

(i) the person is incapable of understanding the sexual nature of the act;

(j) the person is mistaken about the sexual nature of the act;

(k) the person is mistaken about the identity of any other person involved in the act;

(l) the person mistakenly believes that the act is for medical or hygienic purposes;

(m) the act occurs in the provision of commercial sexual services and the person engages in the act because of a false or misleading representation that the person will be paid;

(n) if the act involves an animal, the person mistakenly believes that the act is for veterinary or agricultural purposes or scientific research purposes;

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(o) the person engages in the act on the basis that a condom is used and either—

(i) before or during the act, any other person involved in the act intentionally removes the condom or tampers with the condom; or

(ii) the person who was to use the condom intentionally does not use it;

(p) having given consent to the act, the person later withdraws consent to the act taking place or continuing.

(2) For the purposes of subsection (1)(m), a false or misleading representation may be made by words or conduct (including by omission) and may be explicit or implicit.

(3) In subsection (1)(m), commercial sexual services has the same meaning as it has in section 53A.".

6 Section 37A amended (1) In the heading to section 37A of the Crimes

Act 1958, for "8A to 8G" substitute "(8A) to (8G)".

(2) In section 37A(a) of the Crimes Act 1958— (a) for "his or her" substitute "their"; (b) for "choose not" substitute "choose whether

or not". (3) After section 37A(a) of the Crimes Act 1958

insert— "(ab) to promote the principle that consent to an

act is not to be assumed—that consent involves ongoing and mutual communication and decision-making between each person

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involved (that is, each person should seek the consent of each other person in a way and at a time that makes it clear whether they consent);".

Subdivision 3—Reasonable belief in consent 7 Definitions—Subdivision (8) of Division 1 of Part I

In section 35(1) of the Crimes Act 1958 insert the following definitions— "cognitive impairment has the same meaning as

in Subdivision (8E); mental illness has the same meaning as in

Subdivision (8E);". 8 Section 36A substituted

For section 36A of the Crimes Act 1958 substitute—

"36A Reasonable belief in consent (1) Whether or not a person (A) reasonably

believes that another person (B) is consenting to an act depends on the circumstances. Note

See section 36B for the effect of intoxication on the standard to be applied in determining whether a person has a reasonable belief.

(2) A's belief that B consents to an act is not reasonable if, within a reasonable time before or at the time the act takes place, A does not say or do anything to find out whether B consents to the act.

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(3) Subsection (2) does not apply if— (a) A has a cognitive impairment or mental

illness (other than the effects of intoxication that is self-induced within the meaning of section 36B); and

(b) that cognitive impairment or mental illness is a substantial cause of A not saying or doing anything to find out whether B consents to the act.

(4) A bears the burden of proving on the balance of probabilities the matters referred to in subsection (3).".

9 Heading to section 36B amended In the heading to section 36B of the Crimes Act 1958, after "on" insert "standard to be applied in determining".

10 Assault with intent to commit a sexual offence After section 42(3) of the Crimes Act 1958 insert—

"(3A) Whether or not A reasonably believes that B would consent to taking part in a sexual act depends on the circumstances. Note

See section 36B for the effect of intoxication on the standard to be applied in determining whether a person has a reasonable belief.

(3B) A's belief that B would consent to a sexual act is not reasonable if A does not say or do anything to find out whether B would consent to the sexual act.

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(3C) Subsection (3B) does not apply if— (a) A has a cognitive impairment or mental

illness (other than the effects of intoxication that is self-induced within the meaning of section 36B); and

(b) that cognitive impairment or mental illness is a substantial cause of A not saying or doing anything to find out whether B would consent to the sexual act.

(3D) A bears the burden of proving on the balance of probabilities the matters referred to in subsection (3C).".

Subdivision 4—Miscellaneous amendments 11 Definitions—Subdivision (8) of Division 1 of Part I

In section 35(1) and (3) of the Crimes Act 1958, before "Subdivisions (8A) to (8FA)" insert "this Subdivision and".

12 Defence—accused did not consent In note 2 at the foot of section 50H of the Crimes Act 1958, for "section 36(2)" substitute "section 36AA".

13 Defence—marriage or domestic partnership In note 3 at the foot of section 51Q of the Crimes Act 1958, for "section 36" substitute "sections 36 and 36AA".

14 Defence—reasonable belief in marriage or domestic partnership

In note 3 at the foot of section 51R of the Crimes Act 1958, for "section 36" substitute "sections 36 and 36AA".

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Division 2—Amendment of Jury Directions Act 2015

15 Direction on consent (1) For the note at the foot of section 46(2) of the

Jury Directions Act 2015 substitute— "Note

Section 36 of the Crimes Act 1958 provides that consent means free and voluntary agreement. Section 36AA of that Act sets out circumstances in which a person does not consent.".

(2) In the note at the foot of section 46(4)(a) of the Jury Directions Act 2015, for "Section 36" substitute "Section 36AA".

(3) In section 46(4)(b) of the Jury Directions Act 2015, for "section 36" substitute "section 36AA".

16 Direction on reasonable belief in consent In section 47(3)(a) of the Jury Directions Act 2015, for "section 36" substitute "section 36AA".

Division 3—Amendment of Sentencing Act 1991 17 Definitions

In section 3(1) of the Sentencing Act 1991, in paragraph (c)(v) of the definition of serious offence, for "section 36" substitute "sections 36 and 36AA".

18 Schedule 1 amended In clause 1(a)(ivb) of Schedule 1 to the Sentencing Act 1991, for "section 36" substitute "sections 36 and 36AA".

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Division 4—Amendment of Sex Work Decriminalisation Act 2022

19 New section 39A inserted After section 39 of the Sex Work Decriminalisation Act 2022 insert—

"39A Circumstances in which a person does not consent Section 36AA(3) of the Crimes Act 1958 is repealed.".

Part 3—Image-based sexual offences

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Part 3—Image-based sexual offences

Division 1—Amendment of Crimes Act 1958 20 Definitions (1) In section 51A(1) of the Crimes Act 1958 insert

the following definition— "distribute, in relation to material, includes—

(a) publishing the material; and (b) exhibiting, communicating, sending,

supplying or transmitting the material to any other person; and

(2) For section 51A(2) of the Crimes Act 1958 substitute—

"(2) For the purposes of this Subdivision, an image may be still, moving, recorded or unrecorded.".

21 Distributing child abuse material In note 1 at the foot of section 51D of the Crimes Act 1958, for "Section 51A(2)(b) provides for the ways in which material may be distributed" substitute "See section 51A(1) for the meaning of distribute".

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22 New Subdivision (8FAAB) inserted in Division 1 of Part I

Before Subdivision (8FA) of Division 1 of Part I of the Crimes Act 1958 insert—

"(8FAAB) Producing, distributing or threatening to distribute intimate images

53O Definitions (1) In this Subdivision—

child means a person under the age of 18 years;

consent—see sections 53P and 53Q; distribute, in relation to an image,

includes— (a) publishing the image; and (b) exhibiting, communicating,

sending, supplying or transmitting the image to any other person; and

electronic material includes data from which images may be generated;

intimate image means an image depicting— (a) a person engaged in a sexual

activity; or (b) a person in a manner or context

that is sexual; or (c) the genital or anal region of a

person (whether bare or covered by underwear); or

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(d) if a person is female, or a transgender or intersex person identifying as female, the breasts of the person;

intimate image disposal order means an order made under section 53Z;

intimate image offence means an offence against section 53R(1), 53S(1) or 53T(1);

place includes land, premises and a vehicle; police officer includes a member of the

Australian Federal Police; produce, in relation to an image, means—

(a) filming, recording, taking or otherwise capturing the image; or

(b) digitally creating the image; seized thing means a thing that came into the

possession of a police officer in the course of the exercise of functions as a police officer.

(2) For the purposes of this Subdivision, an image may be—

(a) still, moving, recorded or unrecorded; and

(b) digitally created by— (i) generating the image; or (ii) altering or manipulating another

image.

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53P Meaning of consent (1) Consent, in relation to the production or

distribution of an intimate image, means free and voluntary agreement.

(2) A person does not consent to the production of an intimate image just because they consented to the production of a different intimate image (including an intimate image produced on a different occasion or in a different way). Example

Consenting to a photograph being taken but not a video being recorded.

(3) A person does not consent to the distribution of an intimate image just because they—

(a) consented to the distribution of that intimate image—

(i) on a different occasion; or (ii) in a different way; or

Example

Consenting to a photograph being emailed to another person but not uploaded to a social media website.

(b) consented to the distribution of a different intimate image; or

(d) distributed that intimate image or a different intimate image; or

(e) in the case of distribution of an intimate image to a particular person, consented to the distribution of that intimate image to a different person.

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53Q Circumstances in which a person does not consent Circumstances in which a person does not consent to the production or distribution of an intimate image include, but are not limited to, the following—

(a) the person does not say or do anything to indicate consent to the production or distribution of the intimate image;

(b) the person agrees to the production or distribution of the intimate image because of force, a fear of force, harm of any type or a fear of harm of any type, whether to that person or someone else, regardless of—

(i) when the force, harm or conduct giving rise to the fear occurs; and

(ii) whether it is, or is a result of, a single incident or part of an ongoing pattern;

Examples

Each of the following is an example of a type of harm referred to in this paragraph—

(a) economic or financial harm;

(b) reputational harm;

(d) harm to the person's employment;

(e) family violence involving psychological abuse or harm to mental health;

(f) sexual harassment.

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(i) regardless of when the coercion or intimidation occurs; and

(ii) whether it is, or is a result of, a single incident or is part of an ongoing pattern;

(d) the person agrees to the production or distribution of the intimate image because the person is overborne by the abuse of a relationship of authority or trust;

(e) the person is asleep or unconscious; (f) the person is so affected by alcohol or

another drug as to be incapable of consenting to the production or distribution of the intimate image;

(g) the person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the production or distribution of the intimate image. Note

This circumstance may apply where a person gave consent when not so affected by alcohol or another drug as to be incapable of consenting.

53R Producing intimate image (1) A person (A) commits an offence if— (a) A intentionally produces an image

depicting another person (B); and (b) the image is an intimate image; and (c) A knows that the image is, or probably

is, an intimate image; and

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(d) the production of the intimate image is contrary to community standards of acceptable conduct.

Examples

1 A person (A) live streams footage from a hidden camera placed in the bedroom of another person (B) to A's laptop and that footage depicts B engaging in sexual activity with another person.

2 A person (A) digitally superimposes another person's face (B) onto a photograph of a naked person taken from an online magazine.

3 A doctor taking a photo of an unconscious patient, which depicts the patient's genital region, during an operation to assist the doctor to perform a medical procedure may not be an offence against this section because of subsection (1)(d).

(2) A person who commits an offence against subsection (1) is liable to 3 years imprisonment.

(3) A does not commit an offence against subsection (1) if—

(a) B is not a child; and (b) at the time of the production of the

intimate image, B consented to— (i) A producing the intimate image;

and (ii) how the intimate image was

produced. Note

A mistaken but honest belief that the production of the intimate image is not contrary to community standards of acceptable conduct is not a defence to this offence—see section 53V.

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53S Distributing intimate image (1) A person (A) commits an offence if— (a) A intentionally distributes an image

depicting another person (B); and (b) the image is an intimate image; and (c) A knows that the image is, or probably

is, an intimate image; and (d) the distribution of the intimate image is

contrary to community standards of acceptable conduct.

Examples

1 A person (A) intentionally posts a photograph of another person (B) on a social media website without B's consent and the photograph depicts B engaged in a sexual activity.

2 A person (A) sends a photograph of a person (B) to another person (C) using an instant messaging service without B's consent and the photograph depicts B's genital or anal region.

3 A parent emailing a photo of their naked newborn child to a family member or a friend may not be an offence against this section because of subsection (1)(d).

(2) A person who commits an offence against subsection (1) is liable to 3 years imprisonment.

(3) A does not commit an offence against subsection (1) if—

(a) B is not a child; and (b) at the time of the distribution of the

intimate image, B consented to— (i) A distributing the intimate image;

and (ii) how the intimate image was

distributed.

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(4) A does not commit an offence against subsection (1) if—

(a) B is not a child; and (b) the intimate image had been distributed

previously in a place to which members of the public had access, irrespective of whether—

(i) that place was accessible on the Internet or not; and

(ii) access was free or for a payment of a fee; and

(d) in all the circumstances, a reasonable person would believe that B consented to the distribution of the intimate image to which the charge relates.

Note

A mistaken but honest belief that the distribution of the intimate image is not contrary to community standards of acceptable conduct is not a defence to this offence—see section 53V.

53T Threat to distribute intimate image (1) A person (A) commits an offence if— (a) A makes to another person (B) a threat

to distribute an intimate image depicting B or another person; and

(b) the distribution of the image would be contrary to community standards of acceptable conduct; and

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(2) A person who commits an offence against subsection (1) is liable to 3 years imprisonment.

(3) For the purposes of subsection (1), a threat may be—

(a) made by words or conduct; and (b) explicit or implicit.

Note

A mistaken but honest belief that the distribution of the intimate image would not be contrary to community standards of acceptable conduct is not a defence to this offence—see section 53V.

53U Community standards of acceptable conduct

(1) Whether the production or distribution of an intimate image is contrary to community standards of acceptable conduct depends on the circumstances.

(2) For the purposes of subsection (1), the circumstances include—

(a) the nature and content of the intimate image;

(b) the circumstances in which the intimate image is produced or distributed;

(c) the age, intellectual capacity, vulnerability or other relevant circumstances of a person depicted in the intimate image;

(d) the degree to which the production or distribution of the intimate image affects the privacy of a person depicted in the intimate image.

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53V No defence of honest and reasonable mistake It is not a defence to a charge that, at the time of the conduct constituting the offence, A was under a mistaken but honest and reasonable belief that—

(a) for an offence against section 53R(1)— production of the intimate image was not contrary to community standards of acceptable conduct; or

(b) for an offence against section 53S(1)— distribution of the intimate image was not contrary to community standards of acceptable conduct; or

(c) for an offence against section 53T(1)— distribution of the intimate image would not be contrary to community standards of acceptable conduct.

Note

The reference to A in this section is a reference to the same A referred to in sections 53R, 53S and 53T.

53W Consent of Director of Public Prosecutions required if accused is under 16 years of age A prosecution for an intimate image offence must not be commenced without the consent of the Director of Public Prosecutions if A is under 16 years of age at the time of the alleged commission of the offence.

Note

The reference to A in this section is a reference to the same A referred to in sections 53R, 53S and 53T.

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53X Application for intimate image disposal order

(1) The Director of Public Prosecutions or a police officer may apply to a court for an intimate image disposal order in respect of a seized thing, or of electronic material contained in a seized thing, that—

(a) was the subject of a criminal proceeding for an intimate image offence in which—

(i) the charge was discontinued, withdrawn or permanently stayed; or

(ii) the person was acquitted or found not guilty (including because of mental impairment) of the charge; or

(iii) the charge was dismissed; or (iv) the person charged was released

on an undertaking under section 75 of the Sentencing Act 1991; or

(b) was not the subject of a criminal proceeding.

Note

Sections 77 and 78 of the Confiscation Act 1997 apply to the disposal of an intimate image if a person is convicted of an offence set out in Schedule 1 to that Act.

(2) The court to which an application under subsection (1) is to be made is—

(a) the court in which the proceeding was at the time the event referred to in subsection (1)(a)(i) to (iv) occurred; or

(b) the Magistrates' Court.

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53Y Notice of application for intimate image disposal order and entitlement to appear

(1) The applicant must give written notice of an application under section 53X to every person whom the applicant has reason to believe has an interest—

(a) in the seized thing; or (b) in the electronic material contained in

the seized thing. (2) A notice under subsection (1) must be given

by ordinary service at least 14 days before the return date.

(3) The court may waive the requirement under subsection (2) to give notice if satisfied—

(a) that all persons who have an interest referred to in that subsection have appeared before the court; or

(b) that it is fair to waive the requirement despite a person who has an interest referred to in that subsection not having appeared before the court.

(4) At any time before the final determination of the application, the court may require the applicant to give notice of the application to any person, in any manner and within any period that the court thinks fit.

(5) In this section, ordinary service and return date have the same meanings as in the Criminal Procedure Act 2009.

53Z Intimate image disposal order (1) On an application under section 53X, the

court may order that the seized thing, or the electronic material contained in the seized thing, to which the application relates—

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(a) be forfeited to the State; and (b) be destroyed or disposed of in a

manner— (i) determined by the court; and (ii) specified in the order.

Note

An intimate image disposal order that relates to a seized thing that is an intimate image results in forfeiture of the seized thing. An intimate image disposal order that relates to electronic material that is contained in a seized thing results in forfeiture of the electronic material only.

(2) The court may only make an intimate image disposal order—

(a) if satisfied, on the balance of probabilities, that—

(i) the seized thing is, or the electronic material contained in the seized thing includes, an intimate image; and

(ii) the return to a person of the seized thing, or of the electronic material contained in the seized thing, may result in the commission of an intimate image offence; or

(b) if satisfied, on the balance of probabilities, that—

(i) the seized thing contains encrypted or password protected electronic material; and

(ii) there are reasonable grounds to believe that the electronic material includes an intimate image.

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(3) The court may give any direction necessary to give effect to an intimate image disposal order made by it.

(4) The following persons are entitled to appear and give evidence at the hearing of the application—

(a) any person notified under section 53Y(1) or (4);

(b) any other person who claims an interest in the seized thing or in electronic material contained in the seized thing.

(5) The court is not prevented from making an intimate image disposal order because a person referred to in subsection (4) has not appeared before the court.

53ZA Appeal against intimate image disposal order

(1) Without affecting any other right of appeal, a person who has an interest in a seized thing, or in electronic material contained in a seized thing, may appeal against an intimate image disposal order made in respect of it.

(2) An appeal is to be made by a person in the same manner as if—

(a) the person had been convicted of an intimate image offence by the court that made the intimate image disposal order; and

(b) the intimate image disposal order were, or were part of, the sentence imposed in respect of that offence.

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(3) On appeal— (a) the intimate image disposal order may

be— (i) confirmed; or (ii) discharged; or (iii) varied; or (b) the matter may be remitted for

rehearing to the court that made the order with or without any direction in law.

(4) An intimate image disposal order is stayed during the appeal period.

(5) In this section— appeal period means the period permitted

under the Criminal Procedure Act 2009 for—

(a) commencing an appeal of the kind referred to in subsection (2); or

(b) if an appeal of the kind referred to in subsection (2) is commenced within the period permitted, the determination of the appeal.

53ZB Disposal of thing or material by consent Nothing in section 53X, 53Y, 53Z or 53ZA prevents the destruction or disposal of a seized thing that is, or of electronic material contained in a seized thing that includes, an intimate image with the consent of all persons who have an interest in the thing or material.".

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Division 2—Amendment of Criminal Procedure Act 2009

23 Definitions In section 3 of the Criminal Procedure Act 2009 insert the following definition— "intimate image offence has the same meaning as

in section 53O(1) of the Crimes Act 1958;". 24 Meaning of sexual offence

After section 4(a) of the Criminal Procedure Act 2009 insert—

"(ab) an intimate image offence;".

Division 3—Amendment of Confiscation Act 1997 25 Application for disposal order

After section 77(1)(cb) of the Confiscation Act 1997 insert—

"(cc) an intimate image as defined in section 53O(1) of the Crimes Act 1958; or

(cd) electronic material as defined in section 53O(1) of the Crimes Act 1958 that contains an intimate image as defined in that section; or Note

A disposal order in respect of an intimate image results in the destruction or disposal of the intimate image. A disposal order in respect of electronic material that contains an intimate image results in the destruction or disposal of the electronic material.".

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Division 4—Amendment of Summary Offences Act 1966

26 Heading to Division 4A of Part I amended In the heading to Division 4A of Part I of the Summary Offences Act 1966, for "Observation or visual capturing of genital or anal region and distribution of intimate images" substitute "Observation of genital or anal region".

27 Definitions In section 40 of the Summary Offences Act 1966—

(a) the definitions of child, community standards of acceptable conduct, distribute, intimate image and visually capture are repealed;

(b) in the definition of place, for "vehicle;" substitute "vehicle.".

28 Location immaterial In section 41 of the Summary Offences Act 1966—

(a) for "this Division" substitute "section 41A"; (b) omit "or visually captured". 29 Observation of genital or anal region

In note 2 at the foot of section 41A of the Summary Offences Act 1966, for "41D(1)" substitute "41D".

30 Sections 41B and 41C repealed Sections 41B and 41C of the Summary Offences Act 1966 are repealed.

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31 Section 41D substituted For section 41D of the Summary Offences Act 1966 substitute—

"41D Exceptions to offence against section 41A Section 41A does not apply to an observation made—

(a) with the express or implied consent of the person whose genital or anal region is observed; or

(b) by accessing the Internet or a broadcasting service (within the meaning of the Broadcasting Services Act 1992 of the Commonwealth) or datacasting service (within the meaning of that Act); or

32 Sections 41DA and 41DB repealed Sections 41DA and 41DB of the Summary Offences Act 1966 are repealed.

33 Search warrant In section 41E(1) and (2) of the Summary Offences Act 1966 omit ", 41B, 41C, 41DA or 41DB".

34 Seizure of things not mentioned in the warrant In section 41F(a)(ii) and (b) of the Summary Offences Act 1966 omit ", 41B, 41C, 41DA or 41DB".

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Division 5—Amendment of Serious Offenders Act 2018

35 Schedule 3 amended In Schedule 3 to the Serious Offenders Act 2018—

(a) after clause 1(s) insert— "(sa) section 53S (distributing intimate

image); (sb) section 53T (threat to distribute

intimate image);"; (b) clauses 5 and 6 are repealed.

Division 6—Amendment of Worker Screening Act 2020

36 Schedule 3 amended In Schedule 3 to the Worker Screening Act 2020—

(a) before clause 3(a) insert— "(aa) section 53R(1) (producing intimate

image); (aab) section 53S(1) (distributing intimate

image); (aac) section 53T(1) (threat to distribute

intimate image);"; (b) in clause 24, for "Division 4A of Part I of the

Summary Offences Act 1966 (upskirting offences)" substitute "section 41A of the Summary Offences Act 1966 (observation of genital or anal region)".

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37 Schedule 4 amended In Schedule 4 to the Worker Screening Act 2020—

(a) after clause 10(a)(i) insert— "(ia) section 53R(1) (producing intimate

image); (ib) section 53S(1) (distributing intimate

image); (ic) section 53T(1) (threat to distribute

intimate image);"; (b) in clause 15— (i) for "Division 4A of Part I of the

Summary Offences Act 1966 (upskirting offences)" substitute "section 41A of the Summary Offences Act 1966 (observation of genital or anal region)";

(ii) for "that Division" substitute "that section".

Division 7—Amendment of Victims of Crime (Financial Assistance Scheme) Act 2022

38 Definitions In section 3(1) of the Victims of Crime (Financial Assistance Scheme) Act 2022—

(a) in the definition of relevant offence— (i) in paragraph (b), before "or (8FA)"

insert ", (8FAAB)"; (ii) in paragraph (d), for "Division 4A of

Part I of the Summary Offences Act 1966" substitute "section 41A of the Summary Offences Act 1966 (observation of genital or anal region)";

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(b) in the definition of sexual offence, before "or (8FA)" insert ", (8FAAB)".

Division 8—Amendment of Spent Convictions Act 2021

39 Definitions In section 3 of the Spent Convictions Act 2021—

(a) insert the following definition— "intimate image offence has the same

meaning as in the Criminal Procedure Act 2009;";

(b) in the definition of sexual offence, after "Criminal Procedure Act 2009" insert "but does not include an intimate image offence".

Division 9—Amendment of Sentencing Act 1991 40 Definitions

In section 3(1) of the Sentencing Act 1991 insert the following definition— "intimate image offence has the same meaning as

in the Criminal Procedure Act 2009;". 41 Court not to have regard to previous good character

or lack of previous findings of guilt or convictions in certain circumstances

In section 5AA(3) of the Sentencing Act 1991, in the definition of child sexual offence, after "Criminal Procedure Act 2009" insert "(other than an intimate image offence)".

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Part 4—Jury directions

Division 1—Amendment of Jury Directions Act 2015

Subdivision 1—Directions about sexual offences 42 Definitions—Part 1

In section 3 of the Jury Directions Act 2015 insert the following definitions— "commercial sexual services has the same

meaning as in section 53A of the Crimes Act 1958;

gender identity has the same meaning as in the Equal Opportunity Act 2010;

sexual offence has the same meaning as in the Criminal Procedure Act 2009;

sexual orientation has the same meaning as in the Equal Opportunity Act 2010;".

43 New Division 1AA of Part 5 inserted After the heading to Part 5 of the Jury Directions Act 2015 insert—

"Division 1AA—Early indication of likely directions under this Part

44O Application of Division This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence or a charge for an offence of conspiracy or incitement to commit a sexual offence.

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44P Trial judge may request indication from parties

(1) Before the trial commences, the trial judge may request that the prosecution and defence counsel (or, if the accused is unrepresented, the accused) each inform the trial judge of whether it is likely that evidence will be adduced in the trial that would provide a good reason for giving a direction for which this Part provides.

(2) If the trial judge is informed under subsection (1) that it is likely that evidence will be adduced that would provide a good reason for giving a particular direction, the trial judge is not required to form a view, at that time, about whether to give that direction.

(3) Nothing in this section prevents the prosecution, defence counsel or the accused from later requesting, or making submissions in relation to, the giving of a direction about which the trial judge was not informed under subsection (1).".

44 Heading to Division 1 of Part 5 substituted For the heading to Division 1 of Part 5 of the Jury Directions Act 2015 substitute—

"Division 1—Consent and reasonable belief in consent (offences after 1 July

2015)".

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45 Application of Division For the note at the foot of section 45 of the Jury Directions Act 2015 substitute— "Notes

1 Subdivision (8A) provides for rape, sexual assault and associated sexual offences.

2 Subdivision (8B) provides for sexual offences against children.

3 Subdivision (8C) provides for incest offences.

4 Subdivision (8D) provides for child abuse material offences.

5 These Subdivisions of Division 1 of Part I of the Crimes Act 1958 came into operation on 1 July 2015.".

46 Direction on consent (1) In section 46(3)(b) of the Jury Directions

Act 2015, for "place; or" substitute "place.". (2) Section 46(3)(c), (d) and (e) of the Jury

Directions Act 2015 are repealed. 47 Direction on reasonable belief in consent

Section 47(3)(c) of the Jury Directions Act 2015 is repealed.

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48 New Division 1A of Part 5 inserted After section 47 of the Jury Directions Act 2015 insert—

"Division 1A—Consent and reasonable belief in consent (offences before, on or

after 1 July 2015)

Subdivision 1—Preliminary 47A Application of Division

This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence or a charge for an offence of conspiracy or incitement to commit a sexual offence.

47B Part 3 does not apply Part 3 does not apply to this Division.

Subdivision 2—Trial judge's obligation to give directions

47C Trial judge must give directions on consent and reasonable belief in consent

(1) The trial judge must give the jury whichever of the following directions the trial judge considers there are good reasons to give—

(a) a direction on the absence of physical injury, violence or a threat (described in section 47D);

(b) a direction on responses to a non- consensual sexual act (described in section 47E);

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(d) a direction on personal appearance and irrelevant conduct (described in section 47G);

(e) a direction on non-consensual sexual acts between all sorts of people (described in section 47H);

(f) a direction on general assumptions not informing a reasonable belief in consent (described in section 47I).

(2) In determining whether there are good reasons for giving a direction under this section, the trial judge must have regard to the submissions, if any, of the prosecution and defence counsel (or, if the accused is unrepresented, the accused).

(3) If the trial judge is to give a direction under this section, the direction must be given at the earliest time in the trial that the trial judge determines is appropriate.

(4) However, subsection (3) does not prevent the trial judge from giving a direction under this section at any time during the trial, including—

(a) before any evidence is adduced in the trial; and

(b) in the trial judge's summing up to the jury.

(5) A direction under this section may be given—

(a) at the request of the prosecution or defence counsel (or, if the accused is unrepresented, the accused); or

(b) on the trial judge's own motion.

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(6) The trial judge may repeat a direction under this section at any time in the trial.

Subdivision 3—Directions on consent 47D Direction on the absence of physical

injury, violence or a threat For the purposes of this Division, a direction on the absence of physical injury, violence or a threat is a direction informing the jury that experience shows that—

(a) there are many different circumstances in which people do and do not consent to a sexual act; and

(b) people who do not consent to a sexual act may not be—

(i) physically injured or subjected to violence; or

(ii) threatened with physical injury or violence.

47E Direction on responses to a non-consensual sexual act For the purposes of this Division, a direction on responses to a non-consensual sexual act is a direction informing the jury that experience shows that—

(a) people may react differently to a sexual act to which they did not consent, and there is no typical, proper or normal response; and

(b) people who do not consent to a sexual act may not protest or physically resist the act.

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Example

The person may freeze and not do or say anything.

47F Direction on other sexual activity For the purposes of this Division, a direction on other sexual activity is a direction informing the jury that experience shows that people who do not consent to a sexual act with a particular person on one occasion may have, on one or more other occasions, engaged in or been involved in consensual sexual activity—

(a) with that person or another person; or (b) of the same kind or a different kind. 47G Direction on personal appearance and

irrelevant conduct For the purposes of this Division, a direction on personal appearance and irrelevant conduct is a direction informing the jury that it should not be assumed that a person consented to a sexual act just because the person—

(a) wore particular clothing; or (b) had a particular appearance; or (c) drank alcohol or took any other drug; or (d) was present in a particular location; or

Examples

1 The complainant attended a nightclub.

2 The complainant went to the accused's home.

(e) acted flirtatiously.

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47H Direction on non-consensual sexual acts occurring between all sorts of people For the purposes of this Division, a direction on non-consensual sexual acts occurring between all sorts of people is a direction informing the jury that experience shows that—

(a) there are many different circumstances in which people do and do not consent to a sexual act; and

(b) sexual acts can occur without consent between all sorts of people, including—

(i) people who know each other; (ii) people who are married to each

other; (iii) people who are in a relationship

with each other; (iv) people who provide commercial

sexual services and people for whose arousal or gratification such services are provided;

(v) people of the same or different sexual orientations;

(vi) people of any gender identity, including people whose gender identity does not correspond to their designated sex at birth. Examples

People who are transgender, non-binary, genderqueer or gender fluid.

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Subdivision 4—Directions on reasonable belief in consent

47I Direction on general assumptions not informing a reasonable belief in consent For the purposes of this Division, a direction on general assumptions not informing a reasonable belief in consent is a direction that informs the jury that—

(a) a belief in consent based solely on a general assumption about the circumstances in which people consent to a sexual act (whether or not that assumption is informed by any particular culture, religion or other influence) is not a reasonable belief; and

(b) if a belief in consent is based on a combination of matters including a general assumption of that kind, then, to the extent that it is based on that general assumption, it is not a reasonable belief.

Examples

Each of the following is an example of a general assumption of the kind referred to in this section—

(a) a general assumption that a person who gets drunk and flirts with another person consents to a sexual act with that other person;

(b) a general assumption that a person who dresses in a way that is considered sexually provocative, and who visits another person's home, consents to a sexual act with that other person.".

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49 Part 3 does not apply In section 49 of the Jury Directions Act 2015, for "this Division (except section 53)." substitute "this Division.".

50 Definitions—Division 2 of Part 5 In section 50 of the Jury Directions Act 2015, the definition of sexual offence is repealed.

51 Prohibited statements and suggestions in relation to complainants, delay and unreliability

(1) In section 51(1)(c) of the Jury Directions Act 2015, for "complainants." substitute "complainants; or".

(2) After section 51(1)(c) of the Jury Directions Act 2015 insert—

"(d) complainants who provide commercial sexual services are, as a class, less credible or require more careful scrutiny than other complainants; or

(e) complainants who have a particular sexual orientation are, as a class, less credible or require more careful scrutiny than other complainants; or

(f) complainants who have a particular gender identity (including complainants whose gender identity does not correspond to their designated sex at birth) are, as a class, less credible or require more careful scrutiny than other complainants. Examples

People who are transgender, non-binary, genderqueer or gender fluid.".

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52 Direction on delay in complaint or lack of complaint (1) After section 52(2) of the Jury Directions

Act 2015 insert— "(2A) A direction under this section may be

given— (a) at the request of the prosecution; or (b) on the trial judge's own motion.". (2) In section 52(4)(c) of the Jury Directions

Act 2015, for "occurrence." substitute "occurrence; and".

(3) After section 52(4)(c) of the Jury Directions Act 2015 insert—

"(d) there may be good reasons why a person may not complain, or may delay in complaining, about a sexual offence.".

(4) After section 52(4) of the Jury Directions Act 2015 insert—

"(4A) In giving a direction under this section, the trial judge may give an example of a good reason referred to in subsection (4)(d).

(4B) An example given in accordance with subsection (4A) need not be based on the evidence given in the trial.".

53 Section 53 repealed Section 53 of the Jury Directions Act 2015 is repealed.

54 Definitions—Division 3 of Part 5 (1) In the heading to section 54C of the Jury

Directions Act 2015, for "Definitions" substitute "Definition".

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(2) In section 54C of the Jury Directions Act 2015— (a) in the definition of difference, in paragraph

(c), for "account;" substitute "account."; (b) the definition of sexual offence is repealed. 55 Direction on difference in complainant's account

After section 54D(2) of the Jury Directions Act 2015 insert—

"(2A) A direction under this section may be given—

(a) at the request of the prosecution; or (b) on the trial judge's own motion.". 56 New Divisions 4 and 5 of Part 5 inserted

After section 54D of the Jury Directions Act 2015 insert—

"Division 4—Continuation of relationship or communication after

sexual offence 54E Application of Division

This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence or a charge for an offence of conspiracy or incitement to commit a sexual offence.

54F Part 3 does not apply Part 3 does not apply to this Division.

54G Definition In this Division— evidence of a post-offence relationship

means evidence that suggests that, after the offence charged is alleged to have been committed, the complainant—

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(a) continued a relationship with the accused; or

(b) otherwise continued to communicate with the accused.

54H Direction on evidence of post-offence relationship

(1) If, before any evidence is adduced in the trial and after hearing submissions from the prosecution and defence counsel (or, if the accused is unrepresented, the accused), the trial judge considers that in the trial there is likely to be evidence of a post-offence relationship, the trial judge—

(a) must direct the jury in accordance with subsection (5) before any such evidence is adduced; and

(b) may give the direction before any evidence is adduced in the trial.

(2) If, at any other time during the trial, the trial judge considers that there is evidence of a post-offence relationship, the trial judge must direct the jury in accordance with subsection (5) as soon as is practicable.

(3) A direction under this section may be given—

(a) at the request of the prosecution; or (b) on the trial judge's own motion. (4) The trial judge may repeat a direction under

this section at any time in the trial.

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(5) In giving a direction under this section, the trial judge must inform the jury that experience shows that—

(a) people may react differently to a sexual act to which they did not consent, and there is no typical, proper or normal response; and

(b) some people who are subjected to a sexual act without their consent will never again contact the person who subjected them to the act, while others—

(i) may continue a relationship with that person; or

(ii) may otherwise continue to communicate with them; and

(i) may continue a relationship with the person who subjected them to the act; or

(ii) may otherwise continue to communicate with that person.

(6) In giving a direction under this section, the trial judge may give an example of a good reason referred to in subsection (5)(c).

(7) An example given in accordance with subsection (6) need not be based on the evidence given in the trial.

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Division 5—Whether complainant is distressed or emotional while giving

evidence 54I Application of Division

This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence or a charge for an offence of conspiracy or incitement to commit a sexual offence.

54J Part 3 does not apply Part 3 does not apply to this Division.

54K Direction on whether complainant is distressed or emotional while giving evidence

(1) If the complainant is to give evidence, the trial judge must direct the jury in accordance with subsection (5) unless there are good reasons for not doing so. Example

A good reason may be that, while there is no question that a sexual offence was committed, the main fact in issue is whether the accused is the offender. In those circumstances, the jury may not need to assess the truthfulness of the complainant's evidence.

(2) The trial judge must give the direction before the complainant gives evidence unless there are good reasons for not doing so.

(3) In determining whether there are good reasons for—

(a) not giving the direction at all; or

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(b) not giving the direction before the complainant gives evidence—

the trial judge must have regard to the submissions, if any, of the prosecution and defence counsel (or, if the accused is unrepresented, the accused).

(4) The trial judge may repeat a direction under this section at any time in the trial.

(5) In giving a direction under this section, the trial judge must inform the jury that experience shows that—

(a) because trauma affects people differently, some people may show obvious signs of emotion or distress when giving evidence about a sexual offence, while others may not; and

(b) both truthful and untruthful accounts of a sexual offence may be given with or without obvious signs of emotion or distress.".

Subdivision 2—Explanation of beyond reasonable doubt in all criminal trials

57 Section 63 substituted For section 63 of the Jury Directions Act 2015 substitute—

'63 Trial judge must explain "proof beyond reasonable doubt"

(1) The trial judge must give the jury an explanation of the phrase "proof beyond reasonable doubt" unless there are good reasons for not doing so.

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(2) The trial judge must give the explanation before any evidence is adduced in the trial unless there are good reasons for not doing so.

(3) In determining whether there are good reasons for—

(a) not giving the explanation at all; or (b) not giving the explanation before any

evidence is adduced in the trial— the trial judge must have regard to the submissions, if any, of the prosecution and defence counsel (or, if the accused is unrepresented, the accused).

(4) If the trial judge determines that there are good reasons for not giving the jury the explanation before any evidence is adduced in the trial, the trial judge must give that explanation to the jury at the earliest time in the trial that the trial judge determines is appropriate.

(5) The trial judge may also give the jury the explanation if the jury asks the trial judge—

(a) a direct question about the meaning of the phrase "proof beyond reasonable doubt"; or

(b) a question that indirectly raises the meaning of that phrase.

(6) The trial judge may repeat an explanation given under this section at any time in the trial.

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(7) In repeating an explanation given under this section, the trial judge is not required to give that explanation in exactly the same way that it was first given.

(8) Nothing in this section limits any other power of the trial judge to give the jury an explanation of the phrase "proof beyond reasonable doubt".'.

58 Section 64 amended (1) In the heading to section 64 of the Jury

Directions Act 2015 omit "in response to jury question".

(2) In section 64(1) of the Jury Directions Act 2015, for 'If the jury has asked a direct question about the meaning of the phrase, or a question that indirectly raises the meaning of the phrase, "proof beyond reasonable doubt",' substitute 'In explaining the phrase "proof beyond reasonable doubt" under section 63,'.

(3) For section 64(2) of the Jury Directions Act 2015 substitute—

'(2) If the trial judge explains the phrase "proof beyond reasonable doubt" in response to a question asked by the jury as described in section 63(5), the trial judge may adapt the explanation to address the particular question asked.'.

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Division 2—Amendment of Sex Work Decriminalisation Act 2022

59 New Division 8A of Part 7 inserted After Division 8 of Part 7 of the Sex Work Decriminalisation Act 2022 insert—

'Division 8A—Amendment of Jury Directions Act 2015

70A Definitions In section 3 of the Jury Directions Act 2015, in the definition of commercial sexual services, for "section 53A" substitute "section 35".'.

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Part 5—Miscellaneous amendments to Criminal Procedure Act 2009

Division 1—Uncertainty about time when sexual offence occurred

60 New section 7B inserted After section 7A of the Criminal Procedure Act 2009 insert—

"7B Uncertainty about time when sexual offence occurred

(1) This section applies if— (a) conduct is alleged to have occurred at

some time during a period; and (b) the conduct, if proven, would constitute

a sexual offence at all times during that period; and

(d) because of a change in the law during that period, the conduct, if proven, would constitute one sexual offence before the change and a different sexual offence after the change.

(2) A person may be charged with— (a) whichever of those sexual offences has

the lowest maximum penalty; or (b) if both of the sexual offences have the

same maximum penalty, the offence that the conduct, if proven, would have constituted before the change.

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(3) The means by which an offence may be charged in accordance with subsection (2) include—

(a) including a charge for that offence in a fresh indictment within the meaning of section 164; or

(b) amending an indictment under section 165 so that it includes a charge for that offence.

(4) For the purposes of a proceeding that relates (wholly or partly) to an offence that is charged in accordance with subsection (2), the offence charged is taken to have been in force when the conduct allegedly occurred.

(5) In any such proceeding, any requirement to prove that the complainant was of a particular age is satisfied if the prosecution proves that the complainant was of that age at some time during the period.".

Division 2—Pre-trial cross-examination at committal hearing

61 Contents of case direction notice In note 1A at the foot of section 119(c) of the Criminal Procedure Act 2009, for "section 124(6)" substitute "section 124A(b)".

62 Leave required to cross-examine other witnesses (1) In section 124(5) of the Criminal Procedure

Act 2009, for "under 18 years of age" substitute "a specified witness".

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(2) After section 124(5) of the Criminal Procedure Act 2009 insert—

"(5A) In this section— specified witness means—

(a) a child; or (b) a person with a cognitive

impairment; or (c) a complainant in relation to a

charge for— (i) a sexual offence; or (ii) an offence where the conduct

constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008.".

(3) Section 124(6) of the Criminal Procedure Act 2009 is repealed.

63 New section 124A inserted After section 124 of the Criminal Procedure Act 2009 insert—

"124A Reasons for granting leave to cross- examine and issues on which witness may be cross-examined If the Magistrates' Court grants leave to cross-examine a witness under section 124, the court must—

(a) state the reasons for granting leave, with reference to the matters set out in section 124(4) and (5); and

(b) identify each issue on which the witness may be cross-examined.".

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64 Cross-examination of witnesses In section 132(1)(a) of the Criminal Procedure Act 2009, for "section 124(6)" substitute "section 124A(b)".

65 Leave to cross-examine witness on different issue In section 132A(2) of the Criminal Procedure Act 2009, for "section 124(6)" substitute "section 124A(b)".

66 Order for accused to cross-examine witness before trial in certain sexual offence cases

In section 198A(6) of the Criminal Procedure Act 2009, for "under 18 years of age" substitute "a specified witness (within the meaning of section 124(5A))".

Division 3—No cross-examination in certain committal hearings

67 No cross-examination in certain sexual offence cases For section 123(1) of the Criminal Procedure Act 2009 substitute—

"(1) This section applies to a proceeding that relates (wholly or partly) to a charge for a sexual offence if, when the criminal proceeding commenced, a complainant in relation to a charge for a sexual offence was a child or a person with a cognitive impairment.".

Division 4—Ground rules hearings 68 Definitions

In section 3 of the Criminal Procedure Act 2009, for the definition of ground rules hearing substitute—

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"ground rules hearing has the meaning given by section 389AB;".

69 Application of Division—Division 1 of Part 8.2A For section 389A(3) of the Criminal Procedure Act 2009 substitute—

"(3) This Division applies to— (a) a witness (including a complainant)

other than the accused in a criminal proceeding referred to in subsection (1) if the witness is—

(i) a person under the age of 18 years; or

(ii) a person with a cognitive impairment; and

(b) a witness who is a complainant in relation to a charge for a sexual offence.".

70 New section 389AB inserted After section 389A of the Criminal Procedure Act 2009 insert—

"389AB Ground rules hearings A ground rules hearing is a hearing at which the court—

(a) considers the communication, support or other needs of witnesses; and

(b) decides how the proceeding is to be conducted to fairly and effectively meet those needs.".

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71 Ground rules hearing to be held (1) In section 389B(1) of the Criminal Procedure

Act 2009 omit "under this Division". (2) For section 389B(3) of the Criminal Procedure

Act 2009 substitute— "(3) A ground rules hearing must be held if— (a) an intermediary is appointed under

Division 2; or (b) a witness is a complainant in relation to

a charge for a sexual offence.". 72 Directions which may be given at ground rules

hearings (1) The note at the foot of section 389E(2)(f) of the

Criminal Procedure Act 2009 is repealed. (2) At the foot of section 389E of the Criminal

Procedure Act 2009 insert— "Notes

1 A direction referred to in subsection (2)(f) may exclude all or part of the operation of the rule attributed to Browne v Dunn (1893) 6 R 67 followed and applied in criminal proceedings in Victoria in R v McDowell [1997] 1 VR 473 (CA), R v MG (2006) 175 A Crim R 342, R v SWC (2007) 175 A Crim R 71 and R v Ferguson (2009) 24 VR 531 in the circumstances in which, and in relation to witnesses to which, this Division applies.

2 Section 41 of the Evidence Act 2008 requires the court to disallow an improper question or improper questioning put to a witness in cross-examination, or inform the witness that it need not be answered.".

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Division 5—Modernisation of references to chastity 73 Section 341 amended (1) In the heading to section 341 of the Criminal

Procedure Act 2009, for "complainant's chastity" substitute "sexual reputation of complainant".

(2) In section 341 of the Criminal Procedure Act 2009, for "general reputation of the complainant with respect to chastity" substitute "sexual reputation of the complainant".

Division 6—ASIC investigators witnessing statements

74 Schedule 3 amended For item 4 of Schedule 3 to the Criminal Procedure Act 2009 substitute—

"4 A staff member, within the meaning of the Australian Securities and Investments Commission Act 2001 of the Commonwealth, at ASIC level 4 or higher (or an equivalent classification) in the Office of Enforcement or the Small Business, Engagement and Compliance area of the Australian Securities and Investments Commission.".

Division 7—Transfer of summary offences 75 Definitions

In section 3 of the Criminal Procedure Act 2009, for the definition of related summary offence substitute— "related summary offence means a summary

offence the proceedings for which are transferred from—

(a) the Magistrates' Court to the Supreme Court or the County Court under section 145; or

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(b) the Supreme Court to the County Court under section 241A(1); or

76 Transfer of summary offences that are related offences on or after committal

In section 145(2) of the Criminal Procedure Act 2009, for "to which the accused has been committed for trial" substitute "in which the accused is to be tried".

77 Supreme Court may order that accused be tried in County Court or Supreme Court

At the foot of section 167 of the Criminal Procedure Act 2009 insert— "Note

If an order is made under section 167(1) or (2), the Supreme Court may also order that a proceeding for a summary offence be transferred from the Supreme Court to the County Court under section 241A(1) or from the County Court to the Supreme Court under section 241A(2) (as the case requires).".

78 Heading to Division 1 of Part 5.8 amended In the heading to Division 1 of Part 5.8 of the Criminal Procedure Act 2009, for "Hearing" substitute "Transfer and hearing".

79 New section 241A inserted Before section 242 of the Criminal Procedure Act 2009 insert—

"241A Transfer of summary offence between Supreme Court and County Court

(1) If an order is made under section 167(1) in relation to an indictable offence, the Supreme Court may order that a proceeding in respect of a charge against the accused for

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a summary offence be transferred from the Supreme Court to the County Court.

(2) If an order is made under section 167(2) in relation to an indictable offence, the Supreme Court may order that a proceeding in respect of a charge against the accused for a summary offence be transferred from the County Court to the Supreme Court.".

Division 8—Explanation of beyond reasonable doubt in general jury guide

80 General jury guide In section 223A(3)(b) of the Criminal Procedure Act 2009—

(a) in subparagraph (ii), for "doubt;" substitute "doubt; and";

(b) after subparagraph (ii) insert— '(iii) the meaning of the phrase "proof

beyond reasonable doubt";'.

Division 9—Outdated cross-reference to persistent sexual abuse offence

81 Schedule 1 amended In clause 5(5) of Schedule 1 to the Criminal Procedure Act 2009, for "section 47A" substitute "section 49J".

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Part 6—Confidential communications and protected health information

82 Definitions (1) In section 32B(1) of the Evidence (Miscellaneous

Provisions) Act 1958 insert the following definitions— "applicant for leave means a party that applies for

leave under section 32C(1); civil proceeding means any proceeding in a court

other than a criminal proceeding; confidential statement has the meaning given by

section 32CE(2); held, in relation to protected health information,

has the meaning given by section 5 of the Health Records Act 2001;

protected health information has the meaning given by section 32BA;

protected person means— (a) in relation to a confidential

communication—the person who made the communication; or

(b) in relation to protected health information—the person whom that information is about;".

(2) In section 32B(1) of the Evidence (Miscellaneous Provisions) Act 1958, the definition of protected confider is repealed.

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83 New section 32BA inserted After section 32B of the Evidence (Miscellaneous Provisions) Act 1958 insert—

"32BA Meaning of protected health information (1) In this Division, health information is

protected health information for the purposes of a proceeding if—

(a) the proceeding is a criminal proceeding; and

(b) the proceeding relates (wholly or partly) to a charge for a sexual offence; and

(i) that sexual offence is alleged to have been committed; or

(ii) any other sexual offence has been committed or is alleged to have been committed; and

(d) the person who recorded or collected the information (or, if the information is an opinion, formed that opinion) did so in a professional capacity.

(2) It does not matter whether the information was recorded or collected (or, if the information is an opinion, was formed) before or after the conduct constituting the sexual offence occurred or is alleged to have occurred.

(3) In this section— health information has the same meaning as

in the Health Records Act 2001.".

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84 Section 32C amended (1) Insert the following heading to section 32C of the

Evidence (Miscellaneous Provisions) Act 1958—

"Exclusion of evidence of confidential communications and protected health information".

(2) Before section 32C(1) of the Evidence (Miscellaneous Provisions) Act 1958 insert—

"(1AA) This section applies to the following information—

(a) in a civil proceeding, a confidential communication;

(b) in a criminal proceeding— (i) a confidential communication; or (ii) protected health information.". (3) In section 32C(1)(a), (b) and (c)(i) and (ii) of the

Evidence (Miscellaneous Provisions) Act 1958, for "a confidential communication" substitute "information to which this section applies".

(4) In section 32C(1) of the Evidence (Miscellaneous Provisions) Act 1958, for "has given notice of their intention in accordance with subsection (2)." substitute "has complied with the requirements under section 32CA or 32CC (as the case requires) that are not waived.".

(5) Section 32C(2), (3), (4), (5) and (6) of the Evidence (Miscellaneous Provisions) Act 1958 are repealed.

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85 New sections 32CA, 32CB, 32CC, 32CD, 32CE and 32CF inserted

After section 32C of the Evidence (Miscellaneous Provisions) Act 1958 insert—

"32CA Applicant for leave must give notice—civil proceedings

(1) In a civil proceeding, an applicant for leave must give written notice of their intention to apply for leave under section 32C(1) to—

(a) each other party; and (b) the medical practitioner or counsellor to

whom the confidential communication was made.

(2) The applicant for leave must give notice under subsection (1) no less than 14 days before the evidence is proposed to be compelled to be produced, produced or adduced.

(3) The court may— (a) fix a period of notice shorter than that

referred to in subsection (2); or (b) waive a requirement to give notice to a

person referred to in subsection (1)(a) or (b).

32CB Persons other than parties appearing and making submissions as to leave—civil proceedings In an application for leave under section 32C(1) in a civil proceeding, the following persons may, with the leave of the court, appear and make submissions—

(a) the protected person;

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(b) the medical practitioner or counsellor to whom the confidential communication was made.

32CC Applicant for leave must give notice— criminal proceedings

(1) In a criminal proceeding, an applicant for leave must give written notice of their intention to apply for leave under section 32C(1) to—

(a) each other party; and (b) the informant; and (c) if the notice relates to a confidential

communication—the medical practitioner or counsellor to whom that communication was made; and

(d) if the notice relates to protected health information—whichever of the following entities the applicant for leave considers appropriate—

(i) the person who recorded or collected the information (or, if the information is an opinion, formed that opinion);

(ii) if the information is held by an organisation—that organisation.

(2) The applicant for leave must give notice under subsection (1) no less than 14 days before the evidence is proposed to be compelled to be produced, produced or adduced.

(3) If the court is satisfied that it is in the interests of justice to do so, the court may—

(a) fix a period of notice shorter than that referred to in subsection (2); or

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(b) waive a requirement to give notice to a person or organisation referred to in subsection (1)(c) or (d).

32CD Prosecuting party to ensure notice is given to protected person—criminal proceedings

(1) If an application for leave under section 32C(1) is made in a criminal proceeding, the prosecuting party must, subject to this section, ensure that written notice of the application is given to the protected person.

(2) The prosecuting party must ensure that notice is given under subsection (1) within a reasonable time of the prosecuting party either giving or receiving, under section 32CC(1), notice of the application for leave.

(3) Notice under subsection (1) must— (a) contain the matters specified in

subsection (4); and (b) be in the form prescribed by the rules of

court. (4) The matters are— (a) a statement that the protected person

may appear in the proceeding, make submissions on the application and give a confidential statement; and

(b) an explanation of how section 32CE(3) and (4) apply to a confidential statement; and

(c) a statement that the protected person may wish to consider whether to obtain legal advice in relation to the application; and

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(d) information about the availability of legal advice in relation to the application.

(5) The court may waive the requirement under subsection (1) if the court is satisfied that—

(a) the prosecuting party has ensured that all reasonable steps to locate the protected person were taken, but the protected person has not been located; or

(b) the protected person has consented in writing to not being notified about an application for leave under section 32C(1); or

(i) in respect of the same confidential communication or protected health information as that to which the application relates; and

(ii) in the same proceeding as that in which the application is made.

32CE Persons other than parties appearing and making submissions as to leave—criminal proceedings

(1) In an application for leave under section 32C(1) in a criminal proceeding, the protected person may appear, make submissions and give a statement in accordance with subsection (2).

(2) The protected person may give the court, by affidavit, a statement (a confidential statement) describing the harm that is likely to be caused to the protected person if the application is granted.

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(3) A court that receives a confidential statement must not make the statement available, or disclose its contents, to anyone other than the protected person or their legal representative, except in accordance with subsection (4).

(4) The court may make the whole or any part of the confidential statement available, or disclose its contents, to a person other than the protected person or their legal representative if the court considers that it is in the interests of justice to do so.

(5) If the application relates to a confidential communication, the medical practitioner or counsellor (as the case requires) may, with the leave of the court, appear and make submissions.

(6) If the application relates to protected health information, the recipient of any notice given in accordance with section 32CC(1)(d) may, with the leave of the court, appear and make submissions.

32CF Production of document for purposes of determining application for leave

(1) For the purposes of determining— (a) the application for leave under section

32C(1); or (b) an application for leave under section

32CB or 32CE(5) or (6) that is made in the course of the application referred to in paragraph (a)—

the court may order that the document to which the application under section 32C(1) relates be produced to it and may inspect it.

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(2) If a document is produced in accordance with an order under subsection (1), the court must not make the document available, or disclose its contents, to the party that applied for leave under section 32C(1).".

86 Restriction on granting leave (1) In section 32D(1)(c) of the Evidence

(Miscellaneous Provisions) Act 1958— (a) after "confidential communications" insert

"and protected health information"; (b) for "protected confider" substitute

"protected person". (2) After section 32D(1) of the Evidence

(Miscellaneous Provisions) Act 1958 insert— "(1A) Additionally, in a criminal proceeding, a

court must not grant leave described in subsection (1) unless it is satisfied that—

(a) the protected person— (i) is aware of the application for

leave; and (ii) has had a reasonable opportunity

to consider obtaining legal advice about the application; or

(b) the prosecuting party has ensured that all reasonable steps to locate the protected person were taken, but the protected person has not been located; or

(c) the protected person has consented in writing to not being notified about an application for leave under section 32C(1); or

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(d) the protected person has already been given notice under section 32CD—

(i) in respect of the same confidential communication or protected health information as that to which the application relates; and

(ii) in the same proceeding as that in which the application is made.".

(3) In section 32D(2)(a) and (e) of the Evidence (Miscellaneous Provisions) Act 1958, for "protected confider" substitute "protected person".

(4) In section 32D(3)(a) and (b) of the Evidence (Miscellaneous Provisions) Act 1958, after "a confidential communication" insert "or protected health information".

87 Limitations on privilege (1) In section 32E(1)(a) of the Evidence

(Miscellaneous Provisions) Act 1958, for "protected confider" substitute "protected person".

(2) In section 32E(1)(b) of the Evidence (Miscellaneous Provisions) Act 1958—

(a) for "protected confider" substitute "protected person";

(b) for "the sexual offence;" substitute "an offence against the protected person;".

88 Ancillary orders available on a granting of leave (1) In section 32F(b) of the Evidence (Miscellaneous

Provisions) Act 1958, for "of the protected confider or the registered medical practitioner or counsellor, as the case requires; or" substitute "of—

(i) the protected person; or

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(ii) a person to whom notice was required to be given under section 32CA(1)(b) or section 32CC(1)(c) or (d) (whether or not that requirement was waived); or".

(2) In section 32F(c) of the Evidence (Miscellaneous Provisions) Act 1958, for "protected confider or the safety of the registered medical practitioner or counsellor, as the case requires." substitute "protected person or the safety of a person referred to in paragraph (b)(ii).".

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Part 7—Extension of temporary provisions

Division 1—Amendment of Court Security Act 1980 89 Temporary measures in response to COVID-19

pandemic In section 7A(4) of the Court Security Act 1980, for "2022" substitute "2023".

Division 2—Amendment of Open Courts Act 2013 90 Certain measures in relation to proceeding or

hearing do not contravene rules of law relating to open justice

(1) In section 8B(1) of the Open Courts Act 2013, for "tribunal—" substitute "tribunal does whichever of the following things the court or tribunal is satisfied it is in the interests of justice to do—".

(2) In section 8B(1)(a) of the Open Courts Act 2013—

(a) for "arranges or provides" substitute "arranging or providing";

(b) omit "or" (where fourthly occurring). (3) In section 8B(1)(b) of the Open Courts

Act 2013— (a) for "arranges or provides" substitute

"arranging or providing"; (b) in subparagraph (ii) omit "or". (4) In section 8B(1)(c) of the Open Courts Act 2013,

for "arranges or provides" substitute "arranging or providing".

(5) In section 8B(3) of the Open Courts Act 2013, for "the day that is 18 months after its commencement" substitute "26 October 2023".

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Part 8—Miscellaneous and transitional provisions

91 Crimes Act 1958 (1) In section 35(1) of the Crimes Act 1958, in the

definition of vagina, for "genitalia;" substitute "genitalia.".

(2) In section 464ZFAB(11)(b) of the Crimes Act 1958 omit "and".

(3) At the end of Part 7 of the Crimes Act 1958 insert—

"638 Transitional provision—Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022—jury directions

(1) Despite section 626(1), the repeal of section 37AAA(e) by the 2014 provision has effect for the purposes of a proceeding that commences on or after the commencement of the 2022 provisions, irrespective of when the offence to which the proceeding relates is alleged to have been committed.

(2) In this section— 2014 provision means section 7(3) of the

Crimes Amendment (Sexual Offences and Other Matters) Act 2014;

2022 provisions means Division 1 of Part 4 of the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022.

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638A Transitional provision—Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022—consent

(1) An amendment made to this Act by a provision of Part 2 of the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 applies only to offences alleged to have been committed on or after the commencement of that provision.

(2) For the purposes of subsection (1), if an offence is alleged to have been committed between 2 dates, one before and one on or after the commencement of a provision of Part 2 of the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022, the offence is alleged to have been committed before that commencement.".

92 Criminal Procedure Act 2009 After section 461 of the Criminal Procedure Act 2009 insert—

"462 Transitional provision—Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022

(1) Section 7B does not apply to a trial that commences before 1 January 2023.

(2) An amendment made to section 119, 124, 132 or 132A by a provision of Division 2 of Part 5 of the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 applies to a committal proceeding in which no committal mention hearing or committal hearing has been held before the day on which that provision of

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that Act comes into operation, irrespective of when the committal proceeding commenced.

(3) Section 124A as inserted by the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 applies to a committal proceeding in which no committal mention hearing or committal hearing has been held before the day on which that section is inserted, irrespective of when the committal proceeding commenced.

(4) Section 198A as amended by the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 applies to a criminal proceeding in which an application under that section has not yet been determined before the day on which that section is amended, irrespective of when the criminal proceeding commenced.

(5) An amendment made to this Act by a provision of Division 4 of Part 5 of the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 applies only to a trial that commences on or after the day on which that provision comes into operation.

(6) An amendment made to this Act by a provision of Division 7 of Part 5 of the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 applies on and from the commencement of that provision to a criminal proceeding irrespective of—

(a) when the criminal proceeding commenced; or

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(b) whether an order was made under section 167 in the criminal proceeding before the commencement of that provision.".

93 Evidence (Miscellaneous Provisions) Act 1958 (1) In the heading to Division 2A of Part II of the

Evidence (Miscellaneous Provisions) Act 1958, after "communications" insert "and protected health information".

(2) In section 42F(7) of the Evidence (Miscellaneous Provisions) Act 1958, for "exist.." substitute "exist.".

(3) After section 167 of the Evidence (Miscellaneous Provisions) Act 1958 insert—

"168 Transitional provision—Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022

(1) Except as otherwise provided by this section, on and after the commencement of the amendments to Division 2A of Part II made by the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022, that Division, as so amended, applies to a proceeding irrespective of when the proceeding commenced.

(2) In a proceeding that commenced before the commencement of the amendments made to Division 2A of Part II by the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022, no information constitutes protected health information for the purposes of that Division.

(3) On and after the commencement of the amendments to Division 2A of Part II made by the Justice Legislation Amendment (Sexual Offences and Other Matters)

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Act 2022, that Division as in force immediately before that commencement continues to apply, despite those amendments, to—

(a) an ongoing application for leave under section 32C; and

(b) the evidence to which that application relates.

(4) For the purposes of subsection (3), an application for leave under section 32C(1) is ongoing if—

(a) notice was given in respect of that application in accordance with section 32C(2) as in force immediately before the commencement of the amendments to section 32C made by the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022; and

(b) the application was not determined before that commencement.".

94 Jury Directions Act 2015 In Schedule 1 to the Jury Directions Act 2015, after clause 5 insert—

"6 Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022

(1) An amendment made to this Act by a provision of Part 2 of the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 applies to—

(a) a trial that commences (within the meaning of the Criminal Procedure Act 2009) on or after the commencement of that provision of Part 2; or

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(b) a summary hearing, committal proceeding, appeal, case stated or special hearing referred to in section 4A(1) for which the specified day is on or after the commencement of that provision of Part 2—

if the offence to which the trial, summary hearing, committal proceeding, appeal, case stated or special hearing relates is alleged to have been committed on or after the commencement of that provision of Part 2.

(2) An amendment made to section 46 or 47 by a provision of Part 4 of the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 applies to—

(a) a trial that commences (within the meaning of the Criminal Procedure Act 2009) on or after the commencement of that provision of Part 4; or

(3) For the purposes of subsections (1) and (2), if an offence is alleged to have been committed between 2 dates, one before and one on or after the commencement of either—

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(a) a provision of Part 2 of the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022; or

(b) a provision of Part 4 of that Act— it is alleged to have been committed before that commencement.

(4) An amendment made to this Act (other than to section 46 or 47) by a provision of Part 4 of the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 applies only to—

(a) a trial that commences (within the meaning of the Criminal Procedure Act 2009) on or after the commencement of that provision of Part 4; or

(5) In this section— specified day means—

(a) for a committal proceeding under the Criminal Procedure Act 2009, the day on which the committal hearing commences; and

(b) for a case stated under the Criminal Procedure Act 2009 or Part 5.4 of the Children, Youth and Families Act 2005, the day of the commencement of the

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hearing from which the question of law arises; and

(c) in any other case, the day of the commencement of the summary hearing, the hearing of the appeal, or the special hearing (as the case requires).".

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Part 9—Repeal of this Act 95 Repeal of this Act

This Act is repealed on 30 July 2024. Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Endnotes

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Endnotes 1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. † Minister's second reading speech—

Legislative Assembly:

Legislative Council:

The long title for the Bill for this Act was "A Bill for an Act to amend the Confiscation Act 1997, the Crimes Act 1958, the Criminal Procedure Act 2009, the Evidence (Miscellaneous Provisions) Act 1958, the Jury Directions Act 2015 and the Summary Offences Act 1966 in relation to sexual offences, evidence and procedure, to amend the Court Security Act 1980 and the Open Courts Act 2013 to extend the operation of certain temporary provisions and to make consequential amendments to other Acts and for other purposes."

By Authority. Government Printer for the State of Victoria.