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A Bill for an Act to amend the Crimes Act 1914, and for related purposes
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Registered 25 Nov 2011
Introduced Senate 23 Nov 2011
Table of contents.

 

2010‑2011

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

Crimes Amendment (Fairness for Minors) Bill 2011

 

No.      , 2011

 

(Senator Hanson‑Young)

 

 

 

A Bill for an Act to amend the Crimes Act 1914, and for related purposes

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Schedule(s)......................................................................................... 2

Schedule 1—Amendments                                                                                                3

Crimes Act 1914                                                                                                           3

 


A Bill for an Act to amend the Crimes Act 1914, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Crimes Amendment (Fairness for Minors) Act 2011.

2  Commencement

                   This Act commences on the day this Act receives the Royal Assent.

3  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


 

Schedule 1Amendments

  

Crimes Act 1914

1  Subsection 3ZQA(2)

Omit “, which may include the taking of an X‑ray of a part of a person’s body,”.

2  After subsection 3ZQA(2)

Insert:

          (2A)  Despite subsection (2), the regulations must not specify the taking of an X‑ray of a part of a person’s body as a prescribed procedure for determining a person’s age.

          (2B)  If, immediately before the time this subsection commences, regulations are in force which specify the taking of an X‑ray of a part of a person’s body as a prescribed procedure for determining a person’s age, they cease to be in force on and after that commencement.

3  After Subdivision A of Division 4A of Part 1AA

Insert:

Subdivision AATime limits on determining age in certain circumstances

3ZQAA  Time limit on determining age in certain circumstances

             (1)  This section applies in relation to a person if the person:

                     (a)  is a non‑citizen (within the meaning of the Migration Act 1958); and

                     (b)  is suspected of committing an offence against Subdivision A of Division 12 of Part 2 of the Migration Act 1958; and

                     (c)  claims to have been under the age of 18 years at the time of the alleged commission of the offence; and

                     (d)  has been taken into immigration detention (within the meaning of the Migration Act 1958).

             (2)  The person is taken, for the purposes of criminal proceedings (including bail, committal, trial, sentencing and appeal proceedings) in relation to the offence, to have been under the age of 18 years at the time of the alleged commission of the offence unless a magistrate orders, on application by an investigating official, that the person was 18 years or over at the time of the alleged commission of the offence.

             (3)  An application to a magistrate by an investigating official for the purposes of subsection (2) can only be made within 30 days after the person is taken into immigration detention (within the meaning of the Migration Act 1958).

             (4)  Before making an order under subsection (2), the magistrate must be satisfied, on the balance of probabilities, that on the evidence before the magistrate the person was 18 years or over at the time of the alleged commission of the offence.

             (5)  Without limiting subsection (4), the evidence may include birth certificates, affidavits from family members of the person, school records and medical records.

             (6)  To avoid doubt, for the purposes of subsection (1), this section applies to a person even if the person is no longer in immigration detention (within the meaning of the Migration Act 1958).

4  Section 15

Before “Where a person”, insert “(1)”.

5  At the end of section 15

Add:

             (2)  If:

                     (a)  a person is charged with an offence against Subdivision A of Division 12 of Part 2 of the Migration Act 1958; and

                     (b)  the person is a non-citizen (within the meaning of that Act); and

                     (c)  the person either:

                              (i)  was under the age of 18 years at the time of the alleged commission of the offence; or

                             (ii)  claims to have been under the age of 18 years at the time of the alleged commission of the offence and a magistrate has not ordered under subsection 3ZQAA(2) that the person is aged 18 years or over; and

                     (d)  the person is remanded under paragraph (1)(a);

the person must be remanded in a youth justice facility.

6  After section 15B

Insert:

15BA  Time limit for bringing people smuggling charges in certain circumstances

             (1)  This section applies in relation to a person if the person:

                     (a)  is a non‑citizen (within the meaning of the Migration Act 1958); and

                     (b)  is suspected of committing an offence against Subdivision A of Division 12 of Part 2 of the Migration Act 1958; and

                     (c)  is, or claims to be, under the age of 18 years; and

                     (d)  has been taken into immigration detention (within the meaning of the Migration Act 1958).

             (2)  A charge for an offence against Subdivision A of Division 12 of Part 2 of the Migration Act 1958 can only be brought against the person within 14 days after the person is taken into immigration detention.

7  Application of amendments

(1)       The amendments made by items 1 and 2 apply in relation to determining a person’s age on or after the commencement of this Schedule.

(2)       The amendments made by items 3 and 6 apply in relation to non‑citizens taken into immigration detention (within the meaning of the Migration Act 1958) on or after the commencement of this Schedule.

(3)       The amendments made by items 4 and 5 apply in relation to defendants remanded on or after the commencement of this Schedule.