1 Short title

This Act may be cited as the Criminal Code and Other Legislation (Mason Jett Lee) Amendment Act 2019.

2 Act amended

This part amends the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004.

3 Amendment of sch 1 (Prescribed offences)

Schedule 1, item 9(a), entry for section 300, after ‘murder’—

insert—

or child homicide

4 Act amended

This part amends the Corrective Services Act 2006.

5 Amendment of s 181 (Parole eligibility date for prisoner serving term of imprisonment for life)

Section 181 (2) (c) and (d) —

omit, insert

(c) if the Criminal Code, section 305(4A) applied on sentence—25 years or the longer time ordered under that section;

(d) if the prisoner is serving a term of imprisonment for life for an offence of murder and paragraphs (a), (b) and (c) do not apply—20 years;

(e) if the Criminal Code, section 309A applied on sentence—15 years or the longer time ordered under that section;

(f) otherwise—15 years.

6 Code amended

This part amends the Criminal Code.

7 Amendment of s 17 (Former conviction or acquittal)

Section 17, note, after ‘murder’—

insert—

or child homicide

8 Amendment of s 286 (Duty of person who has care of child)

Section 286 (1), ‘under 16 years’—

omit.

9 Amendment of s 300 (Unlawful homicide)

Section 300, ‘or manslaughter,’—

omit, insert —

, child homicide or manslaughter,

10 Insertion of new s 302A

After section 302 —

insert—

302A Definition of child homicide

(1) A person who unlawfully kills another person under such circumstances as to not constitute murder but under all of the following circumstances—

(a) the person killed was a child at the time the act or omission that caused the person’s death was done or made;

(b) the person did the act or made the omission that caused the person’s death when the person knew or ought reasonably to have known that the person killed was a child;

(c) the act or omission that caused the person’s death—

(i) involved violence; or Examples, which are not exclusive examples, of acts involving violence—vigorous shaking, punching, kicking, stamping, throwing, squeezing, suffocating or strangling

(ii) was an offence of a sexual nature; or

(iii) was a breach of a duty stated in section 285 or 286;

is guilty of
"child homicide".

(2) An indictment charging an offence against this section with the circumstance of aggravation stated in the Penalties and Sentences Act 1992, section 161Q may not be presented without the consent of a Crown Law Officer.

11 Amendment of s 303 (Definition of manslaughter)

Section 303 (1), after ‘murder’—

insert—

or child homicide

12 Amendment of s 304 (Killing on provocation)

Section 304 (1), (9) and (10), after ‘murder’—

insert—

or child homicide

13 Amendment of s 304A (Diminished responsibility)

(1) Section 304A (1), after ‘murder’—insert—or child homicide

(2) Section 304A (2), after ‘murder’—insert—or child homicide

(3) Section 304A (3), from ‘shall not’—omit, insert—does not affect the question whether the unlawful killing amounted to murder or child homicide in the case of the other person or persons.

14 Amendment of s 304B (Killing for preservation in an abusive domestic relationship)

Section 304B (1), after ‘constitute murder’—

insert—

or child homicide

15 Amendment of s 305 (Punishment of murder)

Section 305 —

insert—

(4A) If—

(a) the person killed was a child at the time the act or omission that caused the person’s death was done or made; and

(b) the person being sentenced did the act or made the omission that caused the person’s death when the person knew or ought reasonably to have known that the person killed was a child;

the court sentencing the person must make an order that the person must not be released from imprisonment until the person has served a minimum of 25 or more specified years of imprisonment, unless released sooner under exceptional circumstances parole under the Corrective Services Act 2006.

16 Amendment of s 307 (Accessory after the fact to murder)

(1) Section 307, heading, after ‘murder’—insert—or child homicide

(2) Section 307 (1), after ‘murder’—insert—or child homicide

17 Insertion of new s 309A

After section 309 —

insert—

309A Punishment of child homicide

(1) Any person who commits the crime of child homicide is liable to imprisonment for life, which can not be mitigated or varied under any law or is liable to an indefinite sentence under part 10 of the Penalties and Sentences Act 1992.

(2) The court sentencing the person must make an order that the person must not be released from imprisonment until the person has served a minimum of 15 or more specified years of imprisonment, unless released sooner under exceptional circumstances parole under the Corrective Services Act 2006.

(3) The Penalties and Sentences Act 1992, section 161Q also states a circumstance of aggravation for the crime of child homicide.

18 Amendment of s 576 (Indictment containing count of murder or manslaughter)

(1) Section 576, heading, after ‘murder’—insert—, child homicide

(2) Section 576 (1), after ‘murder’—insert—or child homicide

19 Amendment of s 678B (Court may order retrial for murder—fresh and compelling evidence)

(1) Section 678B, heading, after ‘murder’—insert—or child homicide

(2) Section 678B (1) to (4), after ‘murder’—insert—or child homicide

20 Amendment of s 678D (Fresh and compelling evidence—meaning)

Section 678D (1), after ‘murder’—

insert—

or child homicide

21 Act amended

This part amends the Criminal Law Amendment Act 1945.

22 Amendment of s 18B (Parole orders under Corrective Services Act 2006)

Section 18B (1) (a), ‘ section 181 (2) (d) ’—

omit, insert—

section 181(2)(f)

23 Rules amended

This part amends the Criminal Practice Rules 1999.

24 Amendment of sch 3 (Forms for indictments, informations and complaints—statement of offences under the Code)

Schedule 3, part 5, entry for chapter 28 —

insert—

25 Act amended

This part amends the Criminal Proceeds Confiscation Act 2002.

26 Amendment of sch 2 (Offences)

Schedule 2, part 1, item 1—

insert—

(aa) child homicide;

27 Act amended

This part amends the Disability Services Act 2006.

28 Amendment of sch 2 (Current serious offences)

Schedule 2, item 4, entry for the Criminal Code, section 300, column 3—

omit, insert—

only if the unlawful killing is—

(a) murder under section 302; or

(b) child homicide under section 302A

29 Amendment of sch 4 (Current disqualifying offences)

Schedule 4, item 4, entry for the Criminal Code, section 300, column 3—

omit, insert—

only if the unlawful killing is—

(a) murder under section 302 and was committed against a child; or

(b) child homicide under section 302A

30 Amendment of sch 6 (Offences that may form basis of investigative information)

Schedule 6, item 4, entry for the Criminal Code, section 300, column 3—

omit, insert—

only if the unlawful killing is—

(a) murder under section 302 and was committed against a child or a person with a disability; or

(b) child homicide under section 302A

31 Act amended

This part amends the Mental Health Act 2016.

32 Amendment of s 21 (Mental Health Court)

Section 21 (1), after ‘murder’—

insert—

or child homicide

33 Amendment of s 110 (When reference may be made)

Section 110 (2) (a), after ‘murder’—

insert—

or child homicide

34 Amendment of s 116 (Decision about unsoundness of mind and diminished responsibility)

Section 116 (1) (b), after ‘murder’—

insert—

or child homicide

35 Amendment of s 120 (Diminished responsibility—discontinuance of proceeding)

Section 120, after ‘murder’—

insert—

or child homicide

36 Amendment of s 181 (Application of div 1)

Section 181 (1) (b) (ii), after ‘murder’—

insert—

or child homicide

37 Amendment of s 789 (Publication of reports and decisions on references—Mental Health Court and Court of Appeal)

(1) Section 789 (3) definition
"decision leading to trial", paragraph (c), after ‘murder’—insert—or child homicide

(2) Section 789 (3) definition
"relevant offence", paragraph (b), after ‘murder’—insert—or child homicide

38 Amendment of sch 3 (Dictionary)

Schedule 3, definition
"prescribed offence" —

insert—

(aa) sections 302A (Definition of
"child homicide") and 309A (Punishment of child homicide);

39 Act amended

This part amend the Penalties and Sentences Act 1992.

40 Amendment of s 171 (Review—periodic)

Section 171 (2) (a) (ii), after ‘ section 305 (4) ’—

omit, insert—

or (4A)

41 Amendment of sch 1 (Serious violent offences)

Schedule 1, entry for the Criminal Code —

insert—

14C sections 302A (Definition of
"child homicide") and 309A (Punishment of child homicide)

42 Amendment of sch 1C (Prescribed offences)

Schedule 1C, entry for the Criminal Code —

insert—

• sections 302A (Definition of
"child homicide") and 309A (Punishment of child homicide)

43 Amendment of sch 2 (Qualifying offences)

Schedule 2, entry for the Criminal Code —

insert—

302A, 309A

Child homicide

44 Act amended

This part amends the Transport Operations (Passenger Transport) Act 1994.

45 Amendment of sch 1A (Driver disqualifying offences)

Schedule 1A, part 1, division 1, item 12E, after ‘child’—

insert—

or the unlawful killing is child homicide under section 302A

46 Act amended

This part amends the Victims of Crime Assistance Act 2009.

47 Amendment of sch 3 (Dictionary)

Schedule 3, definition
"more serious act of violence", after ‘murder,’—

insert—

child homicide,

48 Act amended

This part amends the Weapons Act 1990.

49 Amendment of s 53 (An unlicensed person may use a weapon at an approved range)

Section 53 (7), definition
"excluded person", paragraph (a) (i), after ‘murder’—

insert—

, child homicide

50 Amendment of sch 2 (Dictionary)

Schedule 2, definition
"prohibited person", paragraph (a), after ‘murder’—

insert—

, child homicide

51 Act amended

This part amends the Working with Children (Risk Management and Screening) Act 2000.

52 Amendment of sch 2 (Current serious offences)

Schedule 2, item 4, entry for the Criminal Code, section 300, column 3, after ‘ section 302 ’—

insert—

or child homicide under section 302A

53 Amendment of sch 4 (Current disqualifying offences)

Schedule 4, item 4, entry for the Criminal Code, section 300, column 3, after ‘child’—

insert—

or child homicide under section 302A

54 Amendment of sch 6 (Offences that may form basis of investigative information)

Schedule 6, item 4, entry for the Criminal Code, section 300, column 3, after ‘disability’—

insert—

or child homicide under section 302A

55 Act amended

This part amends the Youth Justice Act 1992.

56 Amendment of s 176 (Sentence orders—life and other significant offences)

(1) Section 176 (6), ‘(3) and (4)’—omit, insert(3), (4) and (4A)

(2) Section 176 —insert—

(6A) The Criminal Code, section 309A(2) applies to a court sentencing a child to detention for life on a conviction of child homicide. Note—For the child’s parole eligibility, see section 233 of this Act and the Corrective Services Act 2006, section 181.