Legislation Flashcards
Legislation
Section 10 of the Bail Act - Discretion exercisable by Bail Authority
If an application made to Bail Authority eligible person, who is charged but not convicted, then BA should, subject to this Act, release applicant on bail having regard to:
- Gravity of offence
Likelihood that applicant would, if released:
- abscond
- offend again
- interfere with evidence
- intimidate witness or hinder police enquiries
- applicant need for physical protection
- medical or other care applicant may need
- previous BOB’s
- any other relevant matter
If applicant is to appear before Court as witness in proceedings (other than to which they have been charged) the BA should release applicant unless risk of absconding.
BA must consider victim of offence - actual or perceived need for protection.
Section 10AA of Bail Act - special considerations for child sexual materials
A BA considering application by eligible person charged with child sexual material offence must, take into account the harm that people who deal with CSM cause to children by contributing to demand for the abuse of children.
Section 10A of Bail Act - Presumption agains bail in certain cases
Bail not to be granted to a prescribed applicant unless applicant establishes existence of special circumstances justifying release on bail.
- Serious and organised crime suspect will not be taken to have established special circumstances, unless also establishes (by oath/affidavit) that they have not been convicted of a serious and organised crime offence/similar offence in other jurisdiction.
Prescribed applicant means:
Applicant committed following offence to escape pursuit by PO or attempting to entice PO to engage in pursuit:
- S.13 CLCA - victim death caused by applicants use of MV
- Offence against S.19A CLCA (cause death/harm by dangerous use of MV)
- Offence Against S.29 CLCA
- Breach of IO with physical violence (acts endangering life/creating risk of serious harm)
- Serious and organised crime suspect
- Offence of failing to comply with control order or PSO
- Offence involving phsyical violence or threat, aggravated due to breach of IO issued by Court
OR
Offence of:
- Murder
- Choking/Strangulation
- Cause bushfire
- Blackmail
- Threats/reprisals against legal proceedings
- Threats/reprisals against public officers
- Serious FA offence
- Serious drug offence AND serious offence against the person
- Terror suspect
- Breach CYPSA direction not to communicate/in company/harbour or conceal
S.11 of Bail Act - conditions of bail
Subject to Act, every bail agreement should have following coditions:
- Prohibiting applicant from possessing firearm/FA part, or ammo
- Submit to tests for GSR
(a BA may only vary/revoke these conditions if does not represent undue rsk of safety to public - if BA is Court, this evidence must be on oath), and record reasons why
Conditions which may be imposed are:
- Reside at specified address
- Victim protection conditions
- Report to police
- Surrender passport
- Comply with other conditioins that BA considers should apply while on bail
- May require guarantor (and provide a security)
- Not to contact/comminication with persons
- for CSO, not to engage or apply for child-related work
- Forfeit money if breach bail
Misc:
- Bail conditions may relate to person/circumstances o/s the State
- If a condition of agreement is to remain at a particular place of residence, PO may enter the residence at any time for purpose of ascertaining compliance with this condition - if hindered, offence.
- Police bail authority is: PO of or above rank of Sgt / responsible officer for a police station
S. 16 of CYPSA- Definition of ‘family’ and ‘parent’
Family includes:
- extended family
- members of child’s family who are not biologically related
- for Aboriginal or TSI child, any person related in accordance with custom
Parent includes:
- step-parent
- in-loco-parentis (in place of parent)
S. 17 of CYPSA - meaning of ‘harm’
Physical harm or psychological harm (whether caused by act or omission), includes:
- Sexual
- Physical
- Mental
- Emotional abuse
- Neglect
Psychological harm does not include emotional reactions such as distress, grief, fear or anger which are response to ordinary vissitudes of life
S. 18 of CYPSA - meaning of ‘at risk’
Child or YP taken to be at risk if:
- has suffered harm
- Likelihood will suffer harm
- likelihood to be removed from State for purpose of:
- unlawful medical procedure
- unlawful marriage ceremony
- enabling child to take part in activity that if were to occur in this state, consitute an offence against CLCA or Criminal Code
OR the parents/guardians are:
- unwilling/unable to care for child
- have abandonded child and cannot be found
- are dead
- child of compulsory school age persistently absent from school w/o satisifactory reason
- Child or YP is NFPA
-
S. 30 of CYPSA - Requirements to report
What occupations are mandated notifiers?
- Prescribed health practitioners
- Police officers
- Community corrections officers
- Social workers
- Ministers of religion
- employees/volunteers of religious organisations
- school/kindergarten teachers
- employees/volunteers in health/welfare/education/sporting/recreational/child care or residential services for children
S.31 of CYPSA - reporting of suspicion of child or YP who may be at risk
What are the requirements of a mandated notifier?
A person to whom this part applies, SORG that a child or YP may be at risk, and suspicion was formed in the course of the person’s employment, report that suspiciion as soon as is reasonably practicable after forming the suspicion.
If a person SORG that the physical/psychological development of an unborn child is at risk (whether due to act/omission of mother or otherwise), and suspicion formed in course of employment, report that suspicion.
Reports include phone call report or Ecarl.
S.41 of CYPSA - Removal of child or young person
What is the authority to remove a child or young person (serious harm)?
If a Child Protection officer BORG that:
- A child or YP has suffered, or there is a significant possibility that child or YP will suffer, serious harm, and;
- it is necessary to remove the child or YP from that situation in order to protect them from suffering serious harm or further serious harm; and
- there is no reasonably practicable alternative to removing the child or YP in the circumstances
The CPO may remove the child or YP from any premises, place, vehicle or vessel using such force (inclusing breaking) as is reasonably necessary fot the purpose.
CPO who is PO below rank of Inspector may only remove with prior approval of Insp or above.
Exception is when CPO BORG that delay in seeking approval would significantly increase the risk of serious harm or further serious harm being caused.
S. 42 of CYPSA - Action following removal of child or YP
What are the actions following a S.41 removal that are required?
A CPO who removes a child or YP per S.41 must return them to custody of parent or guardian unless:
- the child or YP is under guardianship
- the CPO reasonably suspects that child or YP would be at risk if returned to parent/guardian
Then CPO must deliver child/YP into care or a person/persons determined by the CE (DCP)
S.58 of CYPSA - Standard of proof
What is the standard of proof for proceedings under this Act?
On the balance of probabilities (except for offences against the Act)
S.87 of CYPSA - Offence of harbouring/concealing absent child or YP
What are the elements of this offence?
A person must not:
- Harbour or conceal, or assist another to harbourt or conceal a child or YP; or
- prevent or assist another to prevent the return of a child or YP to state care placement
- if person knows that the child of YP is absent from state care without lawful authority
(Summary offence)
S.147 of CYPSA - Who are child protection officers?
CPO’s are:
- the Chief Executive
- Police Officers
- Employee of the Department
PO not in uniform must at request, produce for inspection their ID card/evidence of their authority
S.50 of CSA - Who is an authorised officer under this Act?
Police Officers, and any other person appointed by Minister by instrument in writing.
S.52(6) of CSA - Power to search person
What are the authorities of this section?
An authorised officer who is a police officer may search any person whom the officer reasonably suspects has in his or her possession any substance or equipment in contravention of this Act.
S.52(9) of CSA - power to search vehicle/vessel/aircraft
List authorities under this section.
If an authorised officer who is a police officer reasonably suspects that any substance or equipment that would afford evidnce of an offence against this Act is in any vehicle/vessel/aircraft, the PO may:
- require the driver or vehicle, master or vessel, or pilot of aircraft to stop the vehicle/vessel/aircraft; and
- detain and search the vehicle/vessel/aircraft; and
- sieze and remove from the vehicle/vessel/aircraft anything that the officer reasonably suspects would afford evidence of an offence against this Act
S.52(5) - Drug warrants
A SPO, magistrate or justice must not issue a warrant under subsection 4, unless satisfied on information given on oath:
- that there are reasonable grounds for suspection that an offence against this Act has been, is being, or is about to be committed, and:
- that a warrant is reasonably required in the circumstances.
- Powers specified under subsection 4- include to take samples, records, etc.
S.52A of CSA - general drug detection powers
What are the powers under this section?
A PO may carry out general drug detection in relation to:
- any property in an area to which this section applies; and
- any person who is in, or apparently attempting to enter or to leave, an area to which this section applies; and
- any property in possession of such a person.
Applies to:
- Licence premises or carpark
- Public venue or carpark
- Public passenger carrier or any place where public passenger carrier may take up or set down passengers (bus/train/tram, etc)
- Public place to which SPO authorises
- Declared public precint/drug transit route
What is the definition of a ‘public place’?
“public place” includes—
(a) a place to which free access is permitted to the public, with the express or tacit consent of the owner or occupier of that place; and
(b) a place to which the public are admitted on payment of money, the test of admittance being the payment of money only; and
(c) a road, street, footway, court, alley or thoroughfare which the public are allowed to use, notwithstanding that that road, street, footway, court, alley or thoroughfare is on private property;
“public venue” means a place where members of the public are gathered for an entertainment or an event or activity of any kind, whether admission is open, procured by the payment of money or restricted to members of a club or a class of persons with some other qualification or characteristic, but does not include a church or place of public worship.
S.6 (Interpretation) of CLFPA
Definitions of protected person or relevant person.
“protected person” means—
(a) a child under the age of 16 years; or
(b) a person physically or mentally incapable of understanding the nature and consequences of a forensic procedure;
"closest available next of kin" means—
(a) in relation to a child, the first in order of priority of the following persons who is not a protected person and is available at the time:
(i) a parent of the child;
(ii) a brother or sister of the child;
(iii) a guardian of the child; and
(b) in relation to any other person, the first in order of priority of the following persons who is not a protected person and is available at the time:
(i) the spouse or domestic partner of the person;
(ii) a son or daughter of the person;
(iii) a parent of the person;
(iv) a brother or sister of the person;
“relevant person”, in relation to a forensic procedure proposed to be carried out on a person under this Division, means—
(a) if the person on whom the procedure is to be carried out is not a protected person—that person; or
(b) if the person on whom the procedure is to be carried out is a protected person—
(i) in the case of a child—the closest available next of kin of the child; or
(ii) in any other case—the person's guardian or, if the person does not have a guardian, the closest available next of kin of the person.
S.7 of CLFPA - Volunteers and victims
A F/P may be carried out on a person under this Division if:
- the procedure is not being carried out on the person in connection with the person being suspected of a serious offence; and either
- the relevant person consents to the procedure, or
- A SPO authorises the carrying out of the procedure (per section 9)
S.8 of CLFPA - Authorsiation of consent of relevant person
How does a person provide consent?
A relevant person may consent to the carrying out of a F/P under this Division by:
- Expressly consenting to the procedure orally or in writing, or:
- Giving some other unequivocal indication of consent
S. 9 of CLFPA - Authorisation by SPO
A SPO may, by instrument in writing, authorise the carrying out of a forensic procedure specified in the instrument on a protected person, if the officer is satisfied that:
- It is impracticable or inapproppriate to obtain consent to the procedure from the relevant person
- because of diffculty in locating/contacting that person; or
- because that person, or a person relation to or associated to him or her, is under suspicion in relation to a criminal offence; and
- the carrying out of the procedure is justified in the circumstances of the case.
S.10 of CLFPA - Withdrawal of consent
A relevant person who has consented to a volunteers/victim FP may by withdrawing their consent, withdraw the authority to conduct the procedure.
If at any time before complete of V/V F/P the relevant person who has given consent acts in a way that would indicate withdrawal of consent, then it is.
If V/V consent withdrawn, can only be resumed if new consent obtained or conducted under other law.
Non-compliance means evidence obtained is not admissible.
S.11 of CLFPA - V/V F/P not to be conducted on protected person who objects to procedure
Before V/V F/P conducted on PP, PO must explain to PP that procedure will not be carried out if that person objects. Procedure not to be carried out on PP if person objects or resists.
Does not apply to person who:
- is under 10 years old
- does not appear to be capable of responding rationally to information
