Courts Legislation Amendment Act 1996 (NSW)
New South Wales
Courts Legislation Amendment Act
1996 No 111
Contents
Page
1 Name of Act 2 2 Commencement 2 3 Amendments 2 4 Explanatory notes 2
Schedule 1 Amendments 3 New South Wales
Courts Legislation Amendment Act
1996 No 111
Act No 111, 1996
An Act to amend various Acts with respect to courts and court procedures; and for other purposes. [Assented to 2 December 1996]
Section 1 Courts Legislation Amendment Act 1996 No 111 The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Courts Legislation Amendment Act 1996.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendments
Each Act mentioned in Schedule 1 is amended as set out in that
Schedule.
4 Explanatory notes
The matter appearing under the heading “Explanatory note” in
Schedule 1 does not form part of this Act.Courts Legislation Amendment Act 1996 No 111
Amendments Schedule 1 Schedule 1 Amendments
(Section 3)
1.1 Children (Detention Centres) Act 1987 No 57 Section 42 Omit the section. Insert instead: 42 Attendance of persons subject to control before courts and court officers
If an appropriate person or body is satisfied that it is necessary that a detainee should attend before it, him or her for the purposes of any legal proceeding, inquest or inquiry then pending and that the absence of the detainee may prejudice the rights of a party, the person or body may make an order directing the superintendent of the detention centre in which the detainee is detained to cause the detainee to be produced at the court or other place at which the proceeding, inquest or inquiry is being held.
Such an order is sufficient authority for the superintendent to cause the detainee to be produced in accordance with the terms of the order.
A detainee produced in accordance with such an order is taken to be in lawful custody while in the actual custody of the superintendent of a detention centre, an officer or a police officer.
It is the duty of the superintendent, officer or police officer having actual custody of the detainee to return the detainee to the detention centre from which the detainee was produced as soon as the appropriate person or body permits. In this section, appropriate person or body means:
(a) a court of record, a judge of such a court or a person constituting such a court, or
Courts Legislation Amendment Act 1996 No 111
Schedule 1 Amendments
(b) the Victims Compensation Tribunal, or (c) a coroner, or (d)
a Clerk of a Local Court, a Registrar of the Children’s Court, a Registrar or assistant Registrar of the District Court, a Registrar or Deputy Registrar of the Supreme Court or the Registrar of the Court of Criminal Appeal, or
(e)
a person prescribed by the regulations for the purposes of this definition.
Explanatory note
The proposed amendment has the effect of extending the list of persons by whom an order requiring the attendance of a detainee can be made to include certain court officers and other persons to be prescribed by the regulations. The list is co-extensive with the list of persons by whom an analogous order will be able to be made under the Prisons Act 1952.
1.2 Coroners Act 1980 No 27 [1] Section 4A State Coroners and Deputy State Coroners Omit “The Public Service Act 1979” from section 4A (9). Insert instead “The Public Sector Management Act 1988”.
Explanatory note Item [1] updates an obsolete reference. [ 2 ] Section 15 Inquiries into fires and explosions Omit section 15 (3) (a). Insert instead:
(a)
in the case of a fire or explosion occurring within a fire district within the meaning of the Fire Brigades Act 1989, by New South Wales Fire Brigades, or
Explanatory note
Item [2] updates an obsolete reference.
Courts Legislation Amendment Act 1996 No 11 4
Amendments Schedule 1 [3] Section 44 Power of coroner to clear court and prohibit publication of matter relating to inquest or inquiry
Insert “(or any specified part of the proceedings)” after
“proceedings” in section 44 (2).Explanatory note proceedings on an inquest in circumstances in which there is a suspicion of suicide. Item [3] allows the prohibition to relate to a specified part of the proceedings only.
[4] Section 44 (2A)–(2C)
Insert after section 44 (2):
(2A) An order under subsection (2) may also prohibit the publication of any matter (including the publication of any photograph or other pictorial representation) that identifies any particular person:
(a)
as being a person whose death or suspected death may have been self inflicted, or
(b)
as being a relative of a person whose death or suspected death may have been self inflicted.
(2B) For the purposes of subsection (2A) (b), the following persons are relatives of a person whose death or suspected death may have been self inflicted:
(a) the spouse of that person, a parent of that person, a person who stands in loco parentis to that person, a guardian of that person or a child of that person, (b) a person who, at the time of the death or suspected death, was living with that person as her husband or his wife, (c) a brother or sister of that person. (2C) To the extent to which an order under subsection (2) prohibits the publication of any matter referred to in subsection (2A), the order continues to have effect after the coroner has made his or her findings, or after the jury has brought in its verdict, but only if the order expressly so provides.
Courts Legislation Amendment Act 1996 No 111
Schedule 1 Amendments Explanatory note
Item [4] inserts provisions that ensure that the coroner’s power to prohibit the reporting of proceedings of suspected suicides extends to the publication of pictorial and other matter that has a tendency to identify a victim or a member of a victim’s close family.
1.3 District Court Act 1973 No 9 [ 1 ] Section 18E Secretary to the Rule Committee Insert “, including the office of registrar” after “Public Service” in section 18E (3).
Explanatory note Item [1] makes it clear that the Registrar of the District Court is eligible to be appointed as Secretary to the District Court Rule Committee.
[2] Section 18K Insert after section 18J: 18K Temporary appointment of registrars and assistant registrars
(1)
The Minister may, by order in writing, appoint a person to act in the office of registrar or assistant registrar during:
(a)
an absence from duty of the registrar or assistant registrar, or
(b)
a vacancy of not more than 6 months’ duration in the office of the registrar or assistant registrar.
(2)
The Minister may delegate to the Director-General of the Attorney General’s Department the Minister’s power of appointment under this section.
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Amendments Schedule 1
(3)
While acting in the office of registrar or assistant registrar, a person so appointed has and may exercise all
the functions of that office.
(4)
Any act, matter or thing done by a person while purporting to exercise a function conferred by this section is not ineffective or unlawful by reason only that either of the circumstances referred to in subsection (1)
(a) or (b) did not exist when the act, matter or thing was
done.
(5)
Any act, matter or thing done by a person while acting in the office of registrar or assistant registrar is taken to have been done by the registrar or assistant registrar, as the case requires.
(6) This section does not apply to an office that is held by a
Clerk of a Local Court.
Explanatory note Item [2] confers on the Minister administering the Act a power to appoint an acting registrar or acting assistant registrar on a temporary basis. The provision reflects section 10 of the Local Courts Act 1982 with respect to the appointment of acting Clerks of a Local Court. [3] Section 127 Right of appeal to Supreme Court
Omit “decision of a Judge” from section 127 (1).
Insert instead “Judge’s judgment or order in an action”.[4] Section 148E Liability of legal practitioners for clients’ costs in certain cases
Omit “solicitor” and “solicitor’s” wherever occurring.
Insert instead “legal practitioner” and “legal practitioner’s”.Explanatory note Item [4] updates obsolete references. Courts Legislation Amendment Act 1996 No 111
Schedule 1 Amendments 1.4 Judges’ Pensions Act 1953 No 41 [1] Section 5 Pension for judge who retires on account of ill-health Insert “or within the period of 3 months after that appointment,” after “appointment as a judge,” in section 5 (2) (b).
Explanatory note judge who retires as a result of permanent disability or infirmity. That section requires a certificate of good health to have been given in relation to the judge within 3 months before his or her appointment. Item [1 ] allows the certificate to have been given within 3 months after the appointment.
[2] Section 5 (5) Insert after section 5 (4):
(5)
This section, as amended by the provisions of Schedule 1.4 [ l ] to the Courts Legislation Amendment Act 1996, applies to a retired judge who was appointed as a judge before the commencement of those provisions in the same way as it applies to one who was appointed after that commencement, and so applies as if subsection (2) (b) were amended by omitting the words “3 months”, where secondly occurring, and by inserting instead the words “ 1 2 months”.
Explanatory note
Item [2] applies the amendments made by item [ l ] to judges who are currently
holding off ice.
1.5 Justices Act 1902 No 27 [ 1 ] Section 41A Payment of costs by informant Insert “(or, if the informant so elects, directly to the defendant)” after “to the defendant” in section 41A (1).
Explanatory note
Item [1 ] allows an informant whom a court has directed to pay the defendant’s
costs to pay those costs directly to the defendant rather than, as is presently the
case, to the court.
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Amendments Schedule 1
[2] Section 41A (2C) Insert after section 41A (2B):
(2C) For the purposes of subsection (2B), an officer of the Royal Society for the Prevention of Cruelty to Animals, or of any other charitable organisation under the Prevention of Cruelty to Animals Act 1979, is taken not to be acting in a private capacity if the officer acts as the informant in any proceedings under that Act.
Explanatory note
Section 41 allows a Justice to order an informant to pay the defendant’s costs in certain circumstances, such as when the defendant is discharged. Except where the informant is acting in a private capacity, an award of costs may only be made i f the Justice is satisfied of certain matters. Item [2] makes it clear that an officer of the RSPCA or of another charitable organisation under the Prevention of Cruelty to Animals Act 1979 is taken not to be acting in a private capacity when acting as informant in proceedings under that Act.
[3] Section 80AA Absent defendant not to be imprisoned
Insert “or authorise an authorised justice to issue” after “issue” in section 80AA (2).
Explanatory note
Section 80AA (2) empowers a Justice who convicts a defendant in the defendant’s absence to issue an arrest warrant so that the defendant can be brought before the Justice for sentencing. Item [3] empowers the Justice to authorise an authorised justice (to be defined as referred to in item [4]) to issue an arrest warrant in his or her stead.
[4] Section 80AA (3), (4)
Insert after section 80AA (2):
(3)
The powers conferred by subsection (2) may be exercised only by a Justice or Justices constituting a Local Court. This subsection does not apply in the case of the issue of a warrant of apprehension by an authorised justice where the issue of the warrant by an authorised justice is authorised under subsection (2).
(4) In this section, authorised justice has the meaning given
to that expression by section 86A.
Courts Legislation Amendment Act 1996 No 111
Schedule 1 Amendments Explanatory note
Item [4] (to the extent to which it inserts proposed subsection (3)) restricts the power to issue, or authorise the issue of, an arrest warrant under section 80AA (2) to a Justice or Justices constituting a Local Court.
Item [4] (to the extent to which it inserts proposed subsection (4)) defines the expression authorised justice for the purposes of section 80AA. The definition is linked to a definition in section 86A, which defines authorised justice to mean a Magistrate, a Children’s Magistrate, a Justice employed in the Local Courts Administration, Attorney General’s Department, or a Justice employed in an office prescribed by the regulations.
[5] Section 81 Payment of costs by defendant, or by prosecutor or complainant
Insert “(or, if the prosecutor or complainant so elects, directly to the defendant)” after “to the defendant” in section 81 (1).
Explanatory note
Item [5] allows an informant or complainant whom a court has directed to pay the defendant’s costs to pay those costs directly to the defendant rather than, as is presently the case, to the court.
[6] Section 81 (6)
Insert after section 81 (5):
(6)
For the purposes of subsection (5), an officer of the Royal Society for the Prevention of Cruelty to Animals, or of any other charitable organisation under the Prevention of Cruelty to Animals Act 1979, is taken not to be acting in a private capacity if the officer acts as the informant or complainant in any proceedings under that Act.
Explanatory note
Section 81 allows a Justice to order an informant or complainant to pay the defendant’s costs in certain circumstances, such as when the defendant is discharged. Except where the informant or complainant is acting in a private capacity, an award of costs may only be made if the Justice is satisfied of certain matters. Item [6] makes it clear that an officer of the RSPCA or of another charitable organisation under the Prevention of Cruelty to Animals Act 1979 is taken not to be acting in a private capacity when acting as informant or complainant in proceedings under that Act.
Courts Legislation Amendment Act 1996 No 111
Amendments Schedule 1 [7] Section 87 Warrant of commitment for non-payment
Insert after section 87 (IA):
(1B) A single warrant may be issued in respect of more than
one conviction or order.Explanatory note fine, penalty or other amount of money in compliance with the requirements of a conviction or order. Item [7] makes it clear that a single warrant may be issued in respect of more than one conviction or order.
[8] Section 88 Warrant of commitment in other cases
Insert after section 88 (3):
(4) A single warrant may be issued in respect of more than
one conviction or order.Explanatory note of imprisonment or for failure to comply with the requirements of a conviction or order (other than a requirement to pay a fine, penalty or other amount of money). Item [8] makes it clear that a single warrant may be issued in respect of more than one conviction or order.
[9] Section 100XA Withdrawal of enforcement orders
Insert after section 100XA (3):
(4)
An authorised Justice who withdraws an enforcement order under this section must cause notice of that fact to be given to the Clerk of the Local Court to whom the amount specified in the order was payable.
( 5 )
As soon as practicable after receiving such a notice, a Clerk of a Local Court to whom an amount has been paid under the relevant enforcement order must refund that amount to the person by whom it was paid.
Explanatory note Payment of an amount that remains unpaid under a penalty notice is enforced by means of an enforcement order. Section 100XA allows an enforcement order to be withdrawn. Item [9] provides for the refund of any money that has been paid under an enforcement order that is subsequently withdrawn.
Courts Legislation Amendment Act 1996 No 111
Schedule 1 Amendments [10] Section 125 Powers of court appealed to
Insert after section 125 (4):
(5)
For the purposes of subsection (4), an officer of the Royal Society for the Prevention of Cruelty to Animals, or of any other charitable organisation under the Prevention of Cruelty to Animals Act 1979, is taken not to be acting in a private capacity if the officer acts as the respondent in any appeal arising from proceedings under that Act.
Explanatory note
Section 125 allows a Justice to order the prosecution to pay an appellant’s costs in certain circumstances, such as when the appeal is successful. Except where the prosecution is acting in a private capacity, an award of costs may only be made if the Justice is satisfied of certain matters. Item [10] makes it clear that an officer of the RSPCA or of any other charitable organisation under the Prevention of Cruelty to Animals Act 1979 is taken not to be acting in a private capacity when acting as prosecutor in proceedings under that Act.
1.6 Local Courts (Civil Claims) Act 1970 No 11 [ 1 ] Section 4A Insert after section 4: 4A Notes Notes in the text of this Act are merely explanatory and do not form part of this Act.
Explanatory note
Item [1 ] is consequential on the fact that item [3] includes an explanatory note at the end of proposed section 12 (9).
Courts Legislation Amendment Act 1996 No 111
Amendments Schedule 1 [2] Section 8AA
Insert after section 8:
8AA Temporary appointment of registrars and deputy
registrars
The Minister may, by order in writing, appoint a person to act in the office of registrar or deputy registrar during:
(a) an absence from duty of the registrar or deputy registrar, or (b) a vacancy of not more than 6 months’ duration in the office of the registrar or deputy registrar. The Minister may delegate to the Director-General of the Attorney General’s Department the Minister’s power of appointment under this section.
While acting in the office of registrar or deputy registrar, a person so appointed has and may exercise all the functions of that office.
Any act, matter or thing done by a person while purporting to exercise a function conferred by this section is not ineffective or unlawful by reason only that either of the circumstances referred to in subsection (1) (a) or (b) did not exist when the act, matter or thing was done.
Any act, matter or thing done by a person while acting in
the office of registrar or deputy registrar is taken to have been done by the registrar or deputy registrar, as the case
requires.This section does not apply to an office that is held by a
Clerk of a Local Court.
Explanatory note
Item [2] confers on the Minister administering the Act a power to appoint an acting registrar or acting deputy registrar on a temporary basis. The provision reflects section 10 of the Local Courts Act 1982 with respect to the appointment of acting Clerks of a Local Court.
Courts Legislation Amendment Act 1996 No 111
Schedule 1 Amendments [3] Section 12 Jurisdiction of Court
Insert after section 12 (8):
(9) In this section, a reference to an action extends to an action referred to in section 68 of the Fair Trading Act 1987. Note. The effect of subsection (9) is to confer jurisdiction on a Local Court in respect of actions for damages referred to in section 68 of the Fair Trading Act 1987. That jurisdiction is similar to the jurisdiction conferred on a Local Court by section 86 of the Trade Practices Act 1974 of the Commonwealth in respect of actions for damages referred to in section 82 of that Act.
Explanatory note for damages referred to in section 68 of the Fair Trading Act 1987.
1.7 Prisons Act 1952 No 9 Section 44 Omit the section. Insert instead: 44 Attendance of prisoners before courts and court officers
(1) If an appropriate person or body is satisfied that it is necessary that a prisoner should attend before it, him or her for the purposes of any legal proceeding, inquest or inquiry then pending and that the absence of the prisoner may prejudice the rights of a party, the person or body may make an order directing the superintendent of the prison in which the prisoner is imprisoned to cause the prisoner to be produced at the court or other place at which the proceeding, inquest or inquiry is being held. (2) Such an order is sufficient authority for the superintendent to cause the prisoner to be produced in accordance with the terms of the order.
(3)
A prisoner produced in accordance with such an order is taken to be in lawful custody while in the actual custody of the governor of the prison, an officer or a police officer.
Courts Legislation Amendment Act 1996 No 111
Amendments Schedule 1
(4)
It is the duty of the governor, officer or police officer having actual custody of the prisoner to return the prisoner to the prison from which the prisoner was produced as soon as the appropriate person or body permits.
( 5 ) In this section, appropriate person or body means: a court of record, a judge of such a court or a
person constituting such a court, or
the Victims Compensation Tribunal, or
a coroner, or
Children’s Court, a Registrar or assistant Registrar a Clerk of a Local Court, a Registrar of the of the District Court, a Registrar or Deputy Registrar of the Supreme Court or the Registrar of the Court of Criminal Appeal, or (e) a person prescribed by the regulations for the purposes of this definition.
Explanatory note
The amendment has the effect of extending the list of persons by whom an order requiring the attendance of a prisoner can be made to include the Registrar of the Children’s Court. The list is co-extensive with the list of persons by whom an analogous order will be able to be made under the Children (Detention Centres) Act 1987.
1.8 Supreme Court Act 1970 No 52 [ 1 ] Section 17 Criminal proceedings Insert “ , 101 (5)” after “72” in section 17 (3). Explanatory note Item [ l ] is consequential on item [10]. It amends section 17 so as to ensure that appeals from decisions of the Criminal Division of the Supreme Court with respect to contempt matters are heard by the Court of Appeal.
Courts Legislation Amendment Act 1996 No 111
Schedule 1 Amendments [2] Section 36 Additional Judges of Appeal
Omit “During any absence from duty of any Judge of Appeal, the
Governor” from section 36 (1).
Insert instead “The Governor”.Explanatory note appointed i f an existing Judge of Appeal is absent from duty. Item [2] removes this restriction. The 6 month maximum period for which additional Judges of Appeal can be appointed remains unchanged.
[3] Section 45 Appeals
Insert after section 45 (2):
(3) The decision of the Court of Appeal on an appeal heard before 3 or more Judges of Appeal is not affected merely because one or more of the Judges dies before the decision on the appeal is given, so long as a majority of the Judges before whom the hearing of the appeal commenced are in agreement as to the Court’s decision. (4) If, in dismissing an appeal, the Court of Appeal is of the unanimous opinion that the appeal does not raise any question of general principle, it may, in accordance with the rules,, give reasons for its decision in short form. Explanatory note dismiss an appeal by means of a “short form” judgment i f it is of the unanimous opinion that the appeal does not raise any question of general principle.
Item [3] (in so far as it inserts a new section 45 (3)) allows the Court of Appeal to
determine a matter even i f one or more of the Judges before whom the matter
was heard dies before a decision is given.[4] Section 48 Assignment to the Court of Appeal
Omit section 48 (2) (i). Insert instead:
(i) for the punishment of contempt of the Court, but
only if the contempt consists of
(i)
contempt in the face of, or in the hearing of, the Court of Appeal, or
Courts Legislation Amendment Act 1996 No 111
Amendments Schedule 1 (ii) disobedience of a judgment or order of the Court of Appeal, or
(iii) breach of an undertaking given to the Court of Appeal,
including proceedings in which the Court of
Appeal is constituted by a master,
Explanatory note court are currently assigned to the Court of Appeal, subject to a limited right of the Court in a Division to deal with limited aspects of contempt. Item [4] amends section 48 so as to reverse the current position, assigning to the Court of Appeal proceedings for limited aspects of contempt only. Other proceedings are to be assigned to the Court in its various Divisions.
[5] Section 48 (4)
Omit the subsection.
Explanatory note
Item [5] is consequential on the amendment made by item [4].[6] Section 53 Assignment of business
Insert after section 53 (3E):
(3F)
Subject to the rules, there are assigned to each Division proceedings for the punishment of contempt of the Court, but only if the contempt consists of
(a)
contempt in the face of, or in the hearing of, the Court in that Division, or
(b)
disobedience of a judgment or order of the Court in that Division, or
(c)
breach of an undertaking given to the Court in that Division,
including proceedings in which the Court is constituted
by a master.
Explanatory ' note Item [6] provides for the assignment of proceedings for limited aspects of contempt to each of the Divisions of the Supreme Court. By virtue of section 53 (4) of the Act, all other matters relating to contempt are assigned to the Common Law Division of the Supreme Court.
Courts Legislation Amendment Act 1996 No 111
Schedule 1 Amendments [7] Section 53 (5)
Insert after section 53 (4):
(5) Without limiting subsection (4), the proceedings assigned to the Common Law Division include proceedings for contempt of the Court or of any other Court (other than proceedings referred to in section 48 (2) (i) or in subsection (3F) of this section).
Explanatory note are not assigned to the Court of Appeal (see item [4]) or to some other Division of the Supreme Court (see item [6]) are assigned to the Common Law Division.
[8] Section 69 Proceedings in lieu of writs
Insert after section 69 (2):
(3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. (4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination. (5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision. Explanatory note is based on a construction of the phrase “error of law on the face of the record” that is narrower than the construction previously given to that phrase by the New South Wales Court of Appeal. The effect of the new construction is to limit the jurisdiction of the Supreme Court to grant any relief or remedy by way of an order in the nature of a writ of certiorari. The writ of certiorari is the means by which a superior court can supervise inferior courts and tribunals in the exercise of their
Courts Legislation Amendment Act 1996 No 111
Amendments Schedule 1 jurisdiction and, in particular, can grant relief where jurisdiction has been wrongly exercised. Item [8] (in so far as it inserts a new section 69 (3) and (4)) restores the Supreme Court’s jurisdiction to what it was before Craig v State of South Australia by making it clear that the reasons for the ultimate determination of a court or tribunal (its “reasons for decision”) form part of the face of the record of proceedings of the court or tribunal.
Item [8] (in so far as it inserts a new section 69 (5)) preserves the operation of other legislative provisions (generally known as “privative provisions”) that purport to exclude or confine the Supreme Court’s power of review.
[9] Section 94 Interest up to judgment
Omit section 94 (2) (b). Insert instead:
(b)
authorise the giving of interest on any debt in respect of any period for which interest is payable as of right, whether by virtue of an agreement or otherwise, or
Explanatory note
Section 94 (2) (b) currently prohibits the Supreme Court from granting interest on a debt if the agreement out of which the debt arises itself provides for the payment of interest. Item [9] restricts that prohibition to those periods for which interest is payable, whether under such an agreement or otherwise, so as to allow the Supreme Court to grant interest for any period in respect of which interest is not payable.
[ 1 0 ] Section 101 Appeal in proceedings before the Court
Insert after section 101 (4):
(5)
An appeal lies to the Court of Appeal from any judgment or order of the Court in a Division in any proceedings that relate to contempt (whether civil or criminal) of the Court or of any other court.
(6)
Subsection (5) does not confer on any person a right to appeal from a judgment or order of the Court in a Division in any proceedings that relate to criminal contempt, being a judgment or order by which the person charged with contempt is found not to have committed contempt.
Courts Legislation Amendment Act 1996 No 111
Schedule 1 Amendments Explanatory note
Item [10] amends section 101 to confer a right of appeal to the Court of Appeal from a judgment or order of the Supreme Court in a Division in proceedings that relate to contempt, otherwise than where the proceedings relate to criminal contempt and the judgment is that the person charged with contempt has not committed contempt.
[ 1 1 ] Section 101A
Insert after section 101:
101A Question of law concerning criminal contempt may be
submitted to Court of Appeal
At any time after the conclusion of contempt proceedings in which the alleged contemnor is found not to have committed contempt, the Attorney General may submit to the Court of Appeal any question of law arising from or in connection with the proceedings.
The Attorney General must submit with the question to be determined a statement of the circumstances out of which the question arose, and thereafter must furnish such further statement as the Court of Appeal may require.
The Court of Appeal has jurisdiction to hear and determine any question submitted to it under this section.
The determination of the Court of Appeal of the question submitted does not in any way affect or invalidate any finding or decision given in the contempt proceedings.
The alleged contemnor is entitled to be heard on the
contemnor does not propose to be represented, the question submitted and, if it appears that the alleged Attorney General is to instruct counsel to argue the question before the Court of Appeal on behalf of the person.
The reasonable costs of legal representation of the alleged contemnor in proceedings under this section are to be paid by the Crown.
Courts Legislation Amendment Act 1996 No 11 1
Amendments Schedule 1
(7)
Proceedings under this section are to be held in camera, except that a legal practitioner may be present at the proceedings for the purpose of reporting the case for any lawful purpose of the Council of Law Reporting for New South Wales.
(8) A person:
(a)
must not publish any report of any submission made under subsection (l), and
(b)
must not publish any report of proceedings under this section so as to disclose the name or identity of the alleged contemnor.
(9) Any publication in contravention of subsection (8) is
punishable as contempt of the Court.(10) In this section:
alleged contemnor means the person charged with
contempt in contempt proceedings.
contempt means contempt of the Court or of any other
court.
contempt proceedings means proceedings before the
Court in a Division for the punishment of contempt.
( 1 1 ) This section applies to criminal contempt only, and does
not apply to civil contempt.Explanatory note
Item [11] confers on the Attorney General a power to submit to the Court of Appeal any question of law arising out of proceedings of the Supreme Court in a Division, in relation to criminal contempt, in which the alleged contemnor is found not to have committed contempt. The proposed power is analogous to a power that exists under section 5A (2) of the Criminal Appeal Act 1912 with respect to questions of law arising out of criminal proceedings in which the accused is acquitted. The proposed section contains similar protections to those contained in section 5A (2). That is, the Court of Appeal’s decision does not affect the alleged contemnor, the proceedings before the Court of Appeal are held in camera and reports that could identify the alleged contemnor are prohibited.
Courts Legislation Amendment Act 1996 No 111
Schedule 1 Amendments [ 1 2 ] Fourth Schedule Savings and transitional provisions
Insert after clause 2:
3 Courts Legislation Amendment Act 1996
(1)
Proceedings commenced in the Court before the commencement of items [4], [5], [6], [7] and [10] of Schedule 1.8 to the Courts Legislation Amendment Act 1996 are unaffected by the amendments to this Act that are made by those items.
(2)
Proceedings commenced in the Court before the commencement of item [8] of Schedule 1.8 to the Courts Legislation Amendment Act 1996 are unaffected by the amendment to this Act that is made by that item.
Explanatory note
Item [12] inserts a transitional provision into the Fourth Schedule to ensure that the amendments made by the proposed Act in relation to the assignment of proceedings for the punishment of contempt of court, and in relation to the Supreme Court’s powers to make an order in the nature of a writ of certiorari, do not affect proceedings commenced before those amendments take effect.
[Minister’s second reading speech made i n — Legislative Council on 17 October 1996 Legislative Assembly on 21 November 1996]
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