Law and Justice Legislation Amendment Act 1997 (Vic)
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997
TABLE OF PROVISIONS
Section Page PART 1—PRELIMINARY 1
1. Purpose 1 2. Commencement 3
PART 2—CRIMES ACT 1958 5
3. Forcible entry 5
PART 3—CRIMES (FAMILY VIOLENCE) ACT 1987 6
4. Principal Act 6 5. Definitions 6 6. Amendment of sections 4, 7 and 9 6 7. New section 6 substituted and section 6A inserted 7 6. Duration of order 7 6A. Supreme Court—limitation of jurisdiction 8 8. New section 13A inserted 8 13A. Rules of evidence not to apply in certain cases 8 9. Variation of interstate summary protection orders 8 10. New section 18AAB inserted 12 18AAB. Registration of New Zealand orders 12 11. Statute law revision 13
PART 4—LEGAL AID LEGISLATION 14
12. Principal Act 14 13. Composition of VLA board 14 14. New Part IV substituted 14 PART IV—INDEPENDENT REVIEWERS 15 18. Panel of independent reviewers 15 19. Functions of independent reviewers 16 15. Immunity 17 16. New section 37 substituted 18 37. Conflicts of interest 18
i
Section Page 17. Amendments consequential on appointment of independent
reviewers 18 18.
Monetary limit on legal assistance 22 19.
New sections 29A and 29B inserted 23 29A. Practitioner panels 23 29B. Assignment of case to practitioner panel 25 20.
Selection of practitioner 26 21.
Time limits for reconsiderations and reviews 26 22.
New section 49B inserted in Principal Act 26 49B. Supreme Court—limitation of jurisdiction 26 23.
New section 51 inserted 27 51. Transitional provisions (1997 Amending Act) 27 24.
Statute law revision 29 25. Amendment of Legal Aid Commission (Amendment) Act 1989 29
PART 5—LEGAL PRACTICE ACT 1996 30
26. Amendment of section 441 30
PART 6—MAGISTRATES' COURT ACT 1989 31
27. Principal Act 31 28. New Part 6A inserted in Principal Act 31 PART 6A—ADMINISTRATIVE SERVICES AGREEMENTS 31 Division 1—Definitions 31 124A. Definitions 31 Division 2—Agreements 32 124B. Ministers may enter into administrative services
agreements 32
124C. Subject matter of agreement 32 124D. Rights of access 34 124E. Right of intervention in management 36 124F. Audit rights 38 124G. Status of documents 39 124H. Investigation of administrative actions 40 124I. Unauthorised access to or interference with data 41 124J. Confidentiality 42
29. Recall and cancellation of warrant 43 30. Execution costs 43 31. Transitional provisions 44
ii
Section Page PART 7—PUBLIC PROSECUTIONS ACT 1994 45
32. Amendment of section 46 45 33. Supreme Court—limitation of jurisdiction 47
PART 8—ROAD SAFETY ACT 1986 48
34. Issue of infringement notices 48 PART 9—SECOND-HAND DEALERS AND PAWNBROKERS
ACT 1989 49
35. Principal Act 49 36. Definitions 49 37. Application of Act 51 38. Substitution of Part 2 51 PART 2—REGISTRATION 51
5. Second-hand dealers and pawnbrokers to be registered 51 6. Eligibility for registration 52 7. Application for registration 52 8. Investigation of application 53
9. Registration 54 10. Automatic cancellation of registration 54 11. Lodgment of statement 56 12. Notification of changes 56 13. Register 56 14. Correction of the register 57 15. Approved forms 57 16. Offences 57
39. Substitution of section 19 58 19. Identifying persons selling or pawning goods 58 40. Recording transactions 59 41. Insertion of new section 21A 59 21A. Recording storage location of goods 59 42. Charges of pawnbrokers 59 43. Insertion of new sections 24A and 24B 60 24A. Offence of failing to comply with court order 61 24B. Sign to be displayed 61 44. Police powers of inspection 61 45. Service 61 46. Substitution of section 28 62 28. Delegation 62 47. Evidentiary 62 48. Bodies corporate 62 49. Regulation-making power 62
iii
Section Page
50. Repeal 63 51. Insertion of new section 36 63 36. Licence applications 63 52. Insertion of Schedule 63 SCHEDULE 63
PART 10—SUMMARY OFFENCES ACT 1966 65
53. Criminal trespass 65 54. New section 62 inserted 67 62. Transitional provision 67 55. New Schedule 1 inserted 68 SCHEDULE 1 68
═══════════════
NOTES 69
iv
Victoria
No. 44 of 1997
Law and Justice Legislation
Amendment Act 1997†
[Assented to 11 June 1997]
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1. Purpose
The main purposes of this Act are—
(a)
to reform the law relating to criminal trespass and for that purpose to amend the Summary Offences Act 1966 and the Crimes Act 1958;
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 1
(b) to amend the Crimes (Family Violence) Act 1987— (i) to allow complaints and orders to be made in respect of more than one family member;
(ii) or extension of interstate summary
to provide for the variation, revocation New Zealand protection orders;
(iii) to remove the requirement to specify a period of duration in an intervention order and to validate existing orders that do not specify a period of duration;
(iv) generally to improve the operation of the Act;
(c) to amend the Legal Aid Act 1978—
(i) to alter the composition and method of appointment of the board of directors of Victoria Legal Aid;
(ii) aid review committees and legal aid
to provide for the replacement of legal reviewers;
(iii) to enable limits to be imposed on the total amount of payments that may be made to a private practitioner under
that Act in respect of a case;
(iv) to provide for the appointment of panels of practitioners;
(d) to amend the Magistrates' Court Act 1989 and the Road Safety Act 1986 to facilitate the outsourcing of certain administrative functions;
Law and Justice Legislation Amendment Act 1997
| s. 2 | Act No. 44/1997 |
(e) to amend the Public Prosecutions Act 1994 to clarify the operation of section 46 of that Act; (f) to amend the Second-Hand Dealers and Pawnbrokers Act 1989— (i) to replace the licensing of second-hand dealers and pawnbrokers with a system of registration;
(ii) to facilitate the recovery of stolen goods;
(iii) to remove the maximum rate of interest chargeable by pawnbrokers;
(iv) to improve procedural matters in that Act.
2. Commencement
(1) Except as otherwise provided in this section, this Act comes into operation on the day on which it receives the Royal Assent.
(2) Subject to this section, the provisions of—
(a) sections 13 to 17 and 19 to 23;
(b) sections 3, 53, 54 and 55;
(c) sections 36 to 52;(d) sections 5 to 10—
come into operation on a day or days to be
proclaimed.
(3) If a provision referred to in sub-section (2)(a) does
not come into operation before 1 July 1998, it
comes into operation on that day.
(4) If a provision referred to in sub-section (2)(b)
does not come into operation before 1 December
1997, it comes into operation on that day.
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 2 (5) If a provision referred to in sub-section (2)(c) does
not come into operation before 1 January 1998, it
comes into operation on that day.
(6) If a provision referred to in sub-section (2)(d) does not come into operation before 1 March 1998, it comes into operation on that day.
_______________
Law and Justice Legislation Amendment Act 1997
| s. 3 | Act No. 44/1997 |
PART 2—CRIMES ACT 1958
3. Forcible entry
| No. 6231. | Section 207(1) of the Crimes Act 1958 is |
| Reprinted to | |
| No. 98/1995. | repealed. |
| Subsequently | |
| amended by | |
| Nos 22/1996, | |
| 35/1996, 45/1996, 46/1996 and | |
| 66/1996. |
—————————
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 4
PART 3—CRIMES (FAMILY VIOLENCE) ACT 1987
4. Principal Act
No. 19/1987. Reprinted to
In this Part, the Crimes (Family Violence) Act No. 95/1994 and 1987 is called the Principal Act.
subsequently amended by No. 66/1996.
5. Definitions
In section 3(1) of the Principal Act, after the definition of "interstate summary protection order" insert—
' "New Zealand protection order" means an
order made under section 14 of the Domestic
Violence Act 1995 of New Zealand;'.
6. Amendment of sections 4, 7 and 9
(1) After section 4(2) of the Principal Act insert— "(3) An intervention order may be made in
respect of more than one aggrieved family
member if the court is satisfied in
accordance with sub-section (1) in respect of
each aggrieved family member.".
(2) After section 7(3) of the Principal Act insert— "(4) A complaint in respect of an aggrieved
family member who is a child may be
included in a complaint in respect of the
child's parent if the complaints arise out ofthe same or similar circumstances.
(5) A complaint referred to in sub-section (4)
may, on the application of the complainant or the defendant, be heard separately if the court thinks fit.
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| s. 7 | Act No. 44/1997 |
(6) Any number of complaints against a
defendant may, on the application of the complainants or the defendant, be heard together if the court thinks fit.".
(3) After section 9(2) of the Principal Act insert—
"(3) For the avoidance of doubt, a magistrate may issue a warrant to arrest in the circumstances set out in sub-section (1)(b)1.".
7. New section 6 substituted and section 6A inserted
For section 6 of the Principal Act substitute—
"6. Duration of order(1) The Court may specify in an intervention
order a period for which the order is to
remain in force.
(2) An intervention order remains in force—
(a)
for the period (if any) specified by the court under sub-section (1), unless it is sooner revoked by the court or reversed or set aside on appeal; or
(b)
if no period is specified in the order, until it is revoked by the court or reversed or set aside on appeal.
(3) An intervention order made on or after 23
January 1995 is not, and must be taken never to have been, invalid only because it did not specify a period for which it was to remain
in force.
(4) Nothing in sub-section (3) affects the rights
an intervention order that was dismissed
before the commencement of section 7 of theof the parties in any proceeding for breach of the ground that the order was invalid because
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 8 no period was specified in it for which it was
to remain in force.6A. Supreme Court—limitation of jurisdiction It is the intention of section 6(3) to alter or vary section 85 of the Constitution Act
1975.".
8. New section 13A inserted
After section 13 of the Principal Act insert—
"13A. Rules of evidence not to apply in certain
cases
(1) In a hearing referred to in sub-section (2) the
court may inform itself on a matter in such manner as it thinks fit, despite any rules of evidence to the contrary.
(2) Sub-section (1) applies to—
(a) a hearing of a complaint if the aggrieved family member is a child; or (b) a hearing of a complaint for an interim intervention order if the complainant is a person other than the aggrieved family member.
(3) If a complaint is made in respect of more than one aggrieved family member, sub- section (1) applies only in relation to the aggrieved family members who are children,
except as provided by sub-section (2)(b).".
9. Variation of interstate summary protection orders
For sections 18AA(3) and (4) of the Principal Act
substitute—"(3) A registered interstate summary protection
order—
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| s. 9 | Act No. 44/1997 |
(a) has the same effect as an intervention order made under section 4; and (b) may be enforced against a person as if it were an intervention order and as if a copy of the order had been served on that person in accordance with section 17(1)(b). (4) The variation or revocation of an interstate summary protection order by a court of the State or Territory in which it was made after
the order is registered under this section has
no effect in Victoria.(5) The court, on application of a person referred to in sub-section (6), may—
(a) vary a registered interstate summary Victoria; or
(b) registered interstate summary
extend the period during which a or
(c) revoke the registration of a registered interstate summary protection order.
(6) Any of the following may make an application referred to in sub-section (5)—
(a) a person for whose protection a protection order has been made;
(b) a person against whom a registered been made;
(c) a member of the police force;
(d)
a person who has been granted leave by the court to make an application.
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 9 (7) A registered interstate summary protection
order is not to be varied, extended or
revoked on the application of a person other
than the person against whom it was made
unless notice of the application has been
served on the person against whom it was
made.
(8) A registered interstate summary protection order is not to be varied or revoked on the application of the person against whom it was made unless notice of the application has been served on the person for whose
protection the order was made.
(9) Notice of an application for variation,
extension or revocation of an interstate
summary protection order is to be served
personally or in such other manner as the
court hearing the application directs.
(10) If the court varies or extends a registered
interstate summary protection order or revokes the registration of an interstate summary protection order, the principal registrar must give notice of the variation,
extension or revocation to—(a) the court that made the order; and (b) the Chief Commissioner of Police.
(11) Subject to sub-section (12), this section, as
amended by section 9 of the Law and applies to an interstate summary protection order whether made before, on or after the commencement of that section.
(12) Sub-section (4), as substituted by section 9
of the Law and Justice Legislation
Amendment Act 1997, does not apply to a
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997
variation or revocation that was made before
the commencement of that section.".
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 10
10. New section 18AAB inserted
After section 18AA of the Principal Act insert—
"18AAB. Registration of New Zealand orders
(1) The principal registrar may register a New Zealand protection order in the court.
(2) On registration of the order, the principal registrar must—
(a) notify the court that made the order of the registration; and (b) forward a copy of the order to the Chief Commissioner of Police. (3) Subject to this section, a registered New Zealand protection order—
(a) has the same effect in Victoria as it has for the time being in New Zealand; and (b) has that effect as if it were an order under this Act— but a breach of the order in Victoria is to be taken for the purposes of imposing a penalty to be a breach of an intervention order under this Act.
(4) If the order is varied, revoked or extended by a court in New Zealand—
(a) the registration is varied, revoked or extended accordingly; and (b) the principal registrar must notify the Chief Commissioner of Police of the variation, revocation or extension. (5) This section applies to a New Zealand protection order whether made before, on or
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| s. 11 | Act No. 44/1997 |
after the commencement of section 10 of the Law and Justice Legislation Amendment Act 1997.".
11. Statute law revision
In section 5(3) of the Principal Act for "sub- regulation" substitute "sub-section".
—————————
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 12
PART 4—LEGAL AID LEGISLATION
12. Principal Act
In this Part, the Legal Aid Act 1978 is called the No. 9245.
Reprinted toPrincipal Act. No. 22/1996.
Subsequently
amended by
No. 35/1996.
13. Composition of VLA board
(1) In section 11 of the Principal Act—
(a)
in paragraphs (a) and (b), omit "after consultation with the Attorney-General of the Commonwealth";
(b)
for paragraphs (c) and (d) substitute— "(c) 3 directors nominated by the Attorney-
General of whom—
(i) at least one must have experience in financial management; and
(ii) at least one must have experience in either business or government operation.".
(2) In section 12E(1) of the Principal Act, omit "after
consultation with the Attorney-General of the
Commonwealth".
(3) In section 12M(1) of the Principal Act, omit
", after consultation with the Attorney-General of
the Commonwealth,".
14. New Part IV substituted
For Part IV of the Principal Act substitute—
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"PART IV—INDEPENDENT REVIEWERS
18. Panel of independent reviewers
(1) The Attorney-General may appoint a panel
of independent reviewers for the purposes of
this Act consisting of—
(a) an eligible person appointed as chairperson of the panel; and (b) as many other eligible persons appointed as members of the panel as are required. (2) A person is eligible to be appointed as a panel member if—
(a) he or she is not a director of VLA or an officer or employee of VLA; and (b) he or she is a person with knowledge and experience that, in the opinion of the Attorney-General, is relevant to the functions of an independent reviewer.
(3) A panel member—
(a)
holds office for the term (not exceeding 3 years) specified in the instrument of appointment;
(b) is eligible for re-appointment;
(c) is, while acting as an independent reviewer, entitled to be paid the remuneration and allowances (if any) fixed in respect of him or her by the Governor in Council from time to time.
(4) The Public Sector Management Act 1992 (except Part 9 or in accordance with Part 8) does not apply to a panel member in respect of the office of panel member.
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 14 (5) The Attorney-General may, in the instrument
of appointment of a panel member, specify
terms and conditions of appointment.
(6) The Attorney-General may at any time remove a panel member from office.
(7) A panel member may resign from office by delivering to the Attorney-General a signed letter of resignation.
19. Functions of independent reviewers
(1) The functions of a member of the panel of
independent reviewers are—
(a) to exercise any powers or carry out any functions delegated to him or her by VLA; (b) when appointed by the chairperson of the panel to do so, to review decisions of VLA or of an officer of VLA or of another independent reviewer with
respect to—
(i) refusal to provide legal assistance of the nature or to the extent applied for;
(ii) the conditions on which legal assistance will be provided;
(iii) the variation or termination of legal assistance;
(iv) the allocation of work amongst practitioners;
(c) to hear and determine any matter referred to him or her under section 30; (d) to consider any complaint by an to the handling of that person's matter.
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| s. 15 | Act No. 44/1997 |
(2) An independent reviewer may, in the interest of justice, reconsider any decision that he or she has made and vary or reverse that
decision if he or she considers it necessary.".
15. Immunity
(1) In section 30(17) of the Principal Act, after
"section" insert "before the commencement of
section 17(4) of the Law and Justice Legislation
Amendment Act 1997 or, in the case of a
member of a legal aid review committee, after that
commencement in accordance with section 51".(2) In section 30 of the Principal Act, after sub- section (17) insert—
"(17A) A director or officer or employee of VLA or
an independent reviewer is not personally
liable for anything done or omitted to be
done in good faith after the commencement
of section 17(4) of the Law and Justice
Legislation Amendment Act 1997—
(a) in the exercise of a power or the discharge of a duty under this section; or (b) in the reasonable belief that the act or omission was in the exercise of a power or the discharge of a duty under this section. (17B) Any liability resulting from an act or
omission that would, but for sub-section
(17A), attach to a director or officer or
employee of VLA or to an independent
reviewer attaches instead to VLA.".
Law and Justice Legislation Amendment Act 1997
s. 16
s. 17
Act No. 44/1997
16. New section 37 substituted
For section 37 of the Principal Act substitute—
"37. Conflicts of interest
An independent reviewer who has a personal
interest (whether pecuniary or otherwise) in
a matter which could conflict with the proper
performance of his or her duties in relation to
the matter, must not exercise any power or
carry out any function in relation to that
matter at any time after becoming aware of
the conflict of interest.".
17. Amendments consequential on appointment of independent reviewers
(1) In section 2(1) of the Principal Act—
(a) after the definition of "incorporated ' "independent reviewer" means member of
the panel of independent reviewers
appointed under section 18 andincludes the panel chairperson;';
(b) the definitions of "legal aid appeal committee" and "legal aid review committee" are repealed; (c) after the definition of "order for costs" ' ''panel chairperson" means chairperson of
the panel of independent reviewers
appointed under section 18;
"panel member", in relation to the panel of
independent reviewers, includes the
panel chairperson;'.
(2) In section 10 of the Principal Act, for paragraphs (d) and (e) substitute—
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| s. 17 | Act No. 44/1997 |
"(d) an independent reviewer—".
(3) In section 28 of the Principal Act, for "legal aid
review committee" substitute "independent
reviewer".
(4) In section 30 of the Principal Act—
(a)
in sub-section (12), for "VLA must appoint a legal aid review committee" substitute "the panel chairperson must appoint an independent reviewer";
(b) in sub-section (13)—
(i) for "the legal aid review committee" substitute "an independent reviewer";
(ii) for "its own" substitute "his or her"; (c) in sub-section (14)—
(i) for "legal aid review committee" substitute "independent reviewer";
(ii) for "its" substitute "his or her";
(d)
in sub-section (15), for "a legal aid review committee" substitute "an independent reviewer";
(e) in sub-section (16)—
(i) for "The legal aid review committee" substitute "An independent reviewer";
(ii) for "its" substitute "his or her".
(5) In section 31(3) of the Principal Act—
(a)
for "appropriate legal aid review committee or legal aid appeal committee" substitute "independent reviewer";
(b)
for "the committee" substitute "the independent reviewer".
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 17 (6) In sections 33(1) and 34(1) of the Principal Act,
for "a legal aid review committee" substitute "an
independent reviewer".
(7) In section 34(2) of the Principal Act, for "legal aid
review committee" substitute "independent
reviewer".
(8) In section 35(1) of the Principal Act, for "a legal
aid review committee" substitute "an independent
reviewer".
(9) In section 35(2) of the Principal Act—
(a) committee" substitute "the panel
for "VLA shall nominate a legal aid review reviewer";
(b)
for "that committee" substitute "that reviewer".
(10) In section 35(2A) of the Principal Act—
(a) for "A legal aid review committee" substitute "An independent reviewer"; (b) in paragraph (a), for "it" substitute "him or her". (11) In section 35(3) of the Principal Act, for "a legal
aid review committee" substitute "an independent
reviewer".
(12) In section 36(1) of the Principal Act—
(a)
for "a legal aid review committee" substitute "an independent reviewer";
(b)
for "a legal aid appeal committee" substitute "another independent reviewer".
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(13) In section 36(2) of the Principal Act—
(a) committee" substitute "the panel
for "VLA shall nominate a legal aid appeal independent reviewer";
(b)
for "that committee" substitute "that reviewer".
(14) In section 36(2A) of the Principal Act—
(a) for "A legal aid appeal committee" appointed under this section";
(b) in paragraph (a), for "it" substitute "him or her". (15) In section 36(3) of the Principal Act, for "a legal
aid appeal committee" substitute "an independent
reviewer under this section".
(16) In section 36(4) of the Principal Act, for "A legal
aid appeal committee shall cause notice of its
decision" substitute "An independent reviewer
must cause notice of his or her decision under this
section".
(17) Sections 38 and 39 of the Principal Act are
repealed.
(18) In section 40 of the Principal Act—
(a) in sub-section (1), for "a legal aid review committee and the committee" substitute "the panel chairperson who must refer it to an independent reviewer and that reviewer"; (b) in sub-section (2)—
(i) for "legal aid review committee" substitute "independent reviewer";
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 18 (ii) for "the committee" substitute "the reviewer".
(19) In section 41(3)(b) of the Principal Act, for ", the
members and reserve members of legal aid review
committees and the members of legal aid appeal
committees" substitute "and independent
reviewers".
(20) In section 43(1) of the Principal Act—
(a)
for "a member of a legal aid review committee or legal aid appeal committee" substitute "an independent reviewer"; and
(b)
in paragraphs (a) and (b), for "such a committee" substitute "an independent reviewer".
(21) In section 43(2) of the Principal Act, for "a
member of a legal aid review committee or legal
aid appeal committee" substitute "an independent
reviewer".(22) In section 47(1) of the Principal Act, for "a legal
aid review committee" substitute "an independent
reviewer".
(23) In section 50 of the Principal Act, paragraph (c) is
repealed.
18. Monetary limit on legal assistance
(1) In section 32 of the Principal Act, after sub- section (2B) insert—
"(2BA) Despite anything to the contrary in this Act,
VLA may—
(a)
determine a limit on the total amount of payments which may be made to a private practitioner under this Act for a class of matter or different classes of matters; and
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(b) vary (whether by increasing or reducing the amount of a limit) or revoke a determination under paragraph (a)— and a private practitioner is not entitled to any payment in respect of such a matter in excess of a limit determined and in force
under this sub-section.
(2) In section 36(5)(b) of the Principal Act, after
"for" insert "other than a decision giving
effect to a determination under section 32(2)
or 32(2BA)".
19. New sections 29A and 29B inserted
After section 29 of the Principal Act insert—
"29A. Practitioner panels
(1) VLA may establish different panels for—
(a)
different classes of matters in relation to which legal assistance may be provided under this Act; or
(b) different parts of the State—
and may determine the conditions subject to which a practitioner may be included on any such panel.
(2) If VLA proposes to establish a panel under sub-section (1) or include additional names on an established panel, it must, by notice
published in a daily newspaper circulating
generally throughout Victoria or in the
relevant part of the State (as the case
requires), invite expressions of interest from
sole practitioners, firms and incorporated
practitioners in having their names included
on the panel.
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 19
(3) A notice under sub-section (2)—
(a)
must be published not later than 21 days before the panel is established by VLA or any additional name included on it, as the case requires; and
(b) must specify—
(i) the qualifications and experience that a practitioner included on the panel must have or the part of the State within which their principal place of practice must be located; and
(ii) the period (not exceeding 3 years) be included on the panel; and
(iii) be made to any practitioner
the basis on which payment will performed as a panel member on behalf of an assisted person; and
(iv) performance standards in relation panel members; and
(v) making of reports to VLA and the
keeping of records that must be
complied with by panel members
in respect of the performance ofrequirements with respect to the persons; and
(vi) the grounds on which, and process by which, a practitioner may be removed from the panel.
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| s. 19 | Act No. 44/1997 |
(4) The name of a sole practitioner, firm or
incorporated practitioner may be included on
a panel whether or not their name is also
included on a referral panel under section 30
or on another panel established under this
section.
(5) A sole practitioner, firm or incorporated
practitioner may be re-included on a panel
after the expiry of the period for which they
were included.
(6) A sole practitioner, firm or incorporated
practitioner may, by writing to VLA, request that their name be removed from a panel and VLA must comply with that request.
(7) If the name of a firm or incorporated
practitioner is included on a panel, the names
of all the partners or directors and the
practitioners who are employed by the firm
or incorporated practitioner are deemed to be
included on the panel.
(8) If the name of a sole practitioner is included on a panel, the names of all the practitioners who are employed by the sole practitioner
are deemed to be included on the panel.
29B. Assignment of case to practitioner panel
(1) VLA may assign the conduct of an assisted person's case to a sole practitioner, firm or incorporated practitioner included on a panel
established under section 29A.
(2) If VLA assigns a case as mentioned in sub-
section (1), VLA must, on behalf of the
assisted person, select a sole practitioner,
firm or incorporated practitioner from the
names on the panel.".
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 20
20. Selection of practitioner
(1) In section 30(1) of the Principal Act, at the end of paragraph (b) insert—
"; and
(c)
VLA has not under section 29B assigned the conduct of the assisted person's case to a sole practitioner, firm or incorporated practitioner included on a panel established under section 29A—".
(2) In section 30(7) of the Principal Act, for
"employee solicitors for the time being of"
substitute "the practitioners who are employedby".
21. Time limits for reconsiderations and reviews
In sections 34(1), 35(1) and 36(1) of the Principal
Act, for "prescribed time (if any)" substitute
"time fixed by VLA (being not less than 7 daysafter the date of the decision)".
22. New section 49B inserted in Principal Act
After section 49A of the Principal Act insert—
"49B. Supreme Court—limitation of jurisdiction
(1) It is the intention of section 30(17A) to alter
or vary section 85 of the Constitution Act
1975.
(2) It is the intention of section 35(3), as
amended by section 17(11) of the Law and Justice Legislation Amendment Act 1997, to alter or vary section 85 of the
Constitution Act 1975.(3) It is the intention of section 36(3), as amended by section 17(15) of the Law and
Law and Justice Legislation Amendment Act 1997
| s. 23 | Act No. 44/1997 |
Justice Legislation Amendment Act 1997,
to alter or vary section 85 of theConstitution Act 1975.".
23. New section 51 inserted
After section 50 of the Principal Act insert—
"51. Transitional provisions (1997 Amending
Act)
(1) On the commencement of section 13 of the Law and Justice Legislation Amendment Act 1997, the directors of Victoria Legal Aid
appointed under section 11(c) of this Act, as
in force immediately before thatcommencement, go out of office.
(2) Victoria Legal Aid is to be taken to be the
composition of its board of directors by
section 13 of the Law and Justicesame body despite the changes made to the except as otherwise provided by sub-section (1), no act, proceeding, matter or thing is to be affected because of those changes. (3) On the commencement of section 14 of the Law and Justice Legislation Amendment Act 1997, any legal aid review committee
established under this Act that is in existence
immediately before that commencement isabolished and its members go out of office.
(4) On the commencement of section 17(17) of
the Law and Justice Legislation committee established under this Act that is in existence immediately before that commencement is abolished and its members go out of office.
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 23 (5) A matter before a legal aid review committee
or a legal aid appeal committee that had not been determined by that committee as at the commencement of section 14 or 17(17) (as
the case requires) of the Law and Justice Legislation Amendment Act 1997 must, until it is determined or until 1 August 1997(whichever is the earlier), continue to be been enacted.
dealt with by that committee in accordance
with this Act as if the Law and Justice(6) For the purpose of sub-section (5) and
despite anything to the contrary in this Act, a
legal aid review committee or a legal aid
appeal committee continues to exist until all
matters referred to in that sub-section have
been determined by it or until 1 August
1997, whichever is the earlier.
(7) A matter referred to in sub-section (5) that
has not been determined by the legal aid review committee or the legal aid appeal committee (as the case requires) as at 1
August 1997 is to be dealt with by an
independent reviewer in accordance with thisAct and for that purpose—
(a) anything done in relation to the matter by the committee before that date is deemed to have been done by the independent reviewer; and (b) the independent reviewer may have regard to any record of the committee relating to the matter. (8) An application, request or complaint made,
or other matter arising, before the
commencement of section 14 or 17(17) of
Law and Justice Legislation Amendment Act 1997
| s. 24 | Act No. 44/1997 |
the Law and Justice Legislation under section 34(1) for reconsideration of a decision of a legal aid review committee) that under this Act as in force before that commencement would have been dealt with by a legal aid review committee or a legal aid appeal committee but was not before such a committee as at that commencement is to be dealt with by an independent reviewer in accordance with this Act.".
24. Statute law revision
In section 46(4) of the Principal Act, for
"taxation" (wherever occurring) substitute
"assessment".
25. Amendment of Legal Aid Commission (Amendment) Act 1989
In section 12 of the Legal Aid Commission
(Amendment) Act 1989, for "prescribed time"
(wherever occurring) substitute "time fixed byit".
_______________
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 26
PART 5—LEGAL PRACTICE ACT 1996
26. Amendment of section 441
No. 35/1996. Amended by
For section 441(2) of the Legal Practice Act No. 59/1996. 1996 substitute—
"(2) The Board, on behalf of the Attorney-General, may apply to the Supreme Court for
punishment of a person for a contravention
of a provision of this Act that, by force of
this Act, constitutes a contempt of theSupreme Court.".
_______________
Law and Justice Legislation Amendment Act 1997
| s. 27 | Act No. 44/1997 |
PART 6—MAGISTRATES' COURT ACT 1989
27. Principal Act
| No. 51/1989. | In this Part, the Magistrates' Court Act 1989 is |
| Reprinted to | |
| No. 99/1995. | called the Principal Act. |
| Subsequently amended by Nos 35/1996, 45/1996, | |
| 64/1996, 66/1996, 70/1996 and | |
| 73/1996. |
28. New Part 6A inserted in Principal Act
In the Principal Act, after Part 6 insert—
'PART 6A—ADMINISTRATIVE SERVICES
AGREEMENTS
Division 1—Definitions
124A. Definitions
In this Part—
"contractor" means a party to an agreement
with the Ministers under section
124B(1);
"Ministers" means the Attorney-General
and the Minister administering Part I of
the Police Regulation Act 1958;
"PERIN Court" means the venue of the
Court prescribed under section
140(1)(i);
"sub-contractor" means a sub-contractor of a contractor or of a sub-contractor.
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 28 Division 2—Agreements
124B. Ministers may enter into administrative
services agreements
(1) The Attorney-General and the Minister
administering Part I of the Police of the Crown, jointly enter into an agreement with a person or body for the provision by that person or body of services of an administrative nature in support of the functions of —
(a) the PERIN Court; or
(b) the sheriff; or(c)
the police force of Victoria as carried on in the office known as the Traffic Camera Office immediately before an
agreement under this sub-section was
first entered into in relation to that
office; or(d)
the police force of Victoria as carried on in the office known as the Fixed Penalties Payment Office immediately before an agreement under this sub- section was first entered into in relation to that office.
(2) Nothing in this section limits, or takes away, this or any other Act or otherwise, to enter into agreements for the provision of services of an administrative nature in support of any functions for which he or she is responsible. any other power of the Attorney-General or
the Minister administering Part I of the
124C. Subject matter of agreement
Law and Justice Legislation Amendment Act 1997
| s. 28 | Act No. 44/1997 |
An agreement under section 124B(1) —
(a) must provide for the services to be provided by the contractor; (b) must provide for the fees, costs and charges to be paid to the contractor; (c) performance standards in relation to the
must provide for objectives and agreement;
(d) must provide for standards of probity applicable to persons employed by, or engaged to provide services for, the contractor in connection with the contractor's operations under the agreement;
(e) contractor with all relevant provisions
must provide for compliance by the instrument of a legislative character;
(f)
must provide for rights of access in favour of the Crown to any premises occupied by the contractor in connection with the contractor's operations under the agreement and to any document or equipment on those premises that is in the possession of the contractor and that relates to, or is used in connection with, the contractor's operations under the agreement;
(g)
must provide for the submission to the Ministers of periodic reports, or the periodic carrying out of a performance audit, in relation to the contractor's operations under the agreement;
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 28
(h) information gained by the contractor in
connection with the contractor's
operations under the agreement andmust provide for the protection of information and on its disclosure and use;
(i) may provide for the extent of indemnities and warranties by parties to the agreement;
(j)
may specify liabilities, risks and insurances;
(k)
may provide for the provision by the contractor of a performance bond;
(l)
must provide for the office the holder of which is to be the principal officer for the purposes of the application of the Ombudsman Act 1973 to the
contractor as a provider of services
under the agreement;(m)
must provide for the Ministers or any of them, the Crown or any other person or body to take over, or nominate any
other person or body to take over, in
specified circumstances rights or
obligations under the agreement or any
other agreement or under any
transaction;(n)
may contain any other provisions that are not inconsistent with this Part or the regulations.
124D. Rights of access
(1) A contractor or sub-contractor must give any
of the Ministers, the Secretary to the
Department of Justice and any person
Law and Justice Legislation Amendment Act 1997
| s. 28 | Act No. 44/1997 |
authorised by any such Minister or the times, together with any assistants and equipment that they consider necessary—
(a) contractor or sub-contractor in
to any premises occupied by the operations under the agreement; and
(b) the contractor or a sub-contractor in
to all persons engaged or employed by operations under the agreement; and
(c)
to all documents or equipment in the possession of the contractor or sub- contractor that relate to, or are used in connection with, the contractor's operations under the agreement—
for the purpose of ensuring compliance with
this Part or the regulations or an agreement
under section 124B(1).
Penalty: 50 penalty units.(2) A contractor or sub-contractor must give an administrator appointed under section 124E free and unfettered access at all times,
together with any assistants and equipment
that the administrator considers necessary—
(a) contractor or sub-contractor in
to any premises occupied by the operations under the agreement; and
(b) the contractor or a sub-contractor in
to all persons engaged or employed by operations under the agreement; and
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 28 (c) to all documents or equipment in the possession of the contractor or sub- contractor that relate to, or are used in connection with, the contractor's operations under the agreement— for the purpose of enabling the administrator to carry out his or her functions and exercise his or her powers under that section.
Penalty: 50 penalty units.
(3) Nothing in this section limits, or takes away, any function or power conferred on a person (including a person on whom a function or
power is conferred by this section but not including a contractor or sub-contractor), whether under this or any other Act or
otherwise including an agreement undersection 124B(1).
124E. Right of intervention in management
(1) The Ministers may intervene in the
management of the contractor's operations
under an agreement under section 124B(1) if
they determine that—
(a) a default has occurred that entitles the Crown to terminate the agreement; or (b) an emergency situation exists that interests of public safety; or
(c) the contractor's operations under the the efficient—
(i) detection of infringements; or
(ii) processing of infringement
notices; or
Law and Justice Legislation Amendment Act 1997
| s. 28 | Act No. 44/1997 | |
| ||
| (iv) functioning of any court. |
(2) If the Ministers intervene in the management
of the contractor's operations under an
agreement, they may appoint an
administrator to manage those operations
until they determine that—
(a) the emergency is over; or
(b) contractor's operations under the
the contractor is able to manage the Ministers.
(3) If an administrator is appointed under sub-
section (2), then for the period of that
appointment—
(a) the contractor or a sub-contractor must act in relation to the management of the contractor's operations under the agreement in accordance with the directions of the administrator; or
(b)
the contractor or a sub-contractor must, as directed by the administrator, cease to act in relation to the management of the contractor's operations under the agreement completely or to the extent specified in the direction.
Penalty: 50 penalty units.
(4) A person engaged or employed by the contractor or a sub-contractor to act in relation to the management of the
contractor's operations under an agreement
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 28 must comply with the directions of the
administrator in doing so.
Penalty: 50 penalty units.(5) An administrator appointed under sub-
section (2) has and may carry out or exercise
for the period of the appointment all of the
functions or powers of the contractor or any
sub-contractor in relation to the management
of the contractor's operations under the
agreement.
(6) The Secretary to the Department of Justice
must provide the administrator with any
assistance necessary to the carrying out of
his or her functions or exercise of his or her
powers under this section.
(7) Nothing in this section limits, or takes away, any function or power conferred on a person (including a person on whom a function or
power is conferred by this section but not including a contractor or sub-contractor), whether under this or any other Act or
otherwise including an agreement undersection 124B(1).
124F. Audit rights
(1) The Ministers may at any time during the
term, or the 7 year period immediately
following the expiration, of an agreement
under section 124B(1) or any renewal of
such an agreement, appoint a person as an
independent auditor to audit the documents
of the contractor that relate to the
contractor's operations under the agreement.
(2) A contractor or sub-contractor must—
(a)
make all documents in its actual possession relating to the contractor's
Law and Justice Legislation Amendment Act 1997
| s. 28 | Act No. 44/1997 |
| operations under the agreement available to an independent auditor appointed under sub-section (1) at the time and place specified by that auditor; and |
(b) appointed under sub-section (1) with
provide an independent auditor audit to be undertaken.
Penalty: 50 penalty units.
124G. Status of documents
(1) For the purposes of the Freedom of Information Act 1982—
(a) before an agreement under section
any document in existence immediately over to the contractor in accordance with the agreement remains; and
(b) the contractor or a sub-contractor after
an agreement under section 124B(1)any document created or received by contractor's operations under the agreement is—
(2) All proprietary rights and interests in any in the possession of the Department of to the same extent to which it would if the agreement had never been entered into.
document referred to in sub-section (1)
remain with, or on the creation or receipt of
the document by the contractor or sub-
contractor become vested in, the Crown.
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 28 (3) All documents referred to in sub-section (1) are public records within the meaning of the Public Records Act 1973.
124H. Investigation of administrative actions
(1) Subject to sub-section (2), the Ombudsman
Act 1973 applies to a contractor or a sub- contractor in its capacity as a provider of services under an agreement under section
124B(1) or a sub-contract agreement as if—
(a) the contractor or sub-contractor were a meaning of that Act; and
(b) the holder of the office specified in the agreement under section 124B(1) or in the sub-contract agreement for the purposes of the application of the Ombudsman Act 1973 were the principal officer of that public statutory
body; and
(c)
the persons employed by the contractor or sub-contractor in connection with the contractor's operations under the
agreement were employees of that
public statutory body.(2) Nothing in this section applies the
Ombudsman Act 1973 to a contractor or sub-contractor—
(a) in any capacity other than that mentioned in sub-section (1); or (b) services were not actually being
provided by the contractor or sub-
contractor under an agreement underwith respect to any period during which agreement.
Law and Justice Legislation Amendment Act 1997
| s. 28 | Act No. 44/1997 |
124I. Unauthorised access to or interference with
data
(1) A person must not intentionally and without lawful authority—
(a)
obtain access, or attempt to obtain access, to any data stored in a computer that is under the control of a contractor or sub-contractor and that relates to the contractor's operations under an agreement under section 124B(1) or was gained in the course of those operations; or
(b)
alter or delete, or attempt to alter or delete, any such data or enter, or attempt to enter, data into the database in which any such data is contained; or
(c)
interfere, or attempt to interfere, in any other way with a database containing any such data.
Penalty: 100 penalty units.
(2) The Secretary to the Department of Justice
may, by writing, authorise a person engaged
or employed by a contractor or sub-
contractor or any other person to do, in
relation to all data referred to in sub-section
(1) or any such data of a specified class,
anything that, but for that authorisation, the
person would be prohibited from doing by
sub-section (1).
(3) For the purposes of sub-section (1) a person must be taken as having lawful authority to do a thing referred to in that sub-section if—
(a)
in the case of a person engaged or employed by a contractor or sub- contractor or any other person, he or
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 28 she is authorised to do that thing under
sub-section (2); and(b) in the case of a person who is—
(i) Magistrates' Court or a registrar or
the principal registrar of the Court; or
(ii) the sheriff, a deputy sheriff or any person who is a bailiff for the purposes of the Supreme Court Act 1986; or
(iii) a member of the police force of Victoria—
he or she does that thing in the exercise
of official powers or the discharge ofofficial functions or duties.
124J. Confidentiality
(1) A person who is, or has at any time been—
(a) a contractor; or
(b) a sub-contractor; or
(c) a person employed by, or engaged to provide services for, a contractor or sub-contractor; or (d) is bound by this section. authorised by the Secretary to the 124I(2)— (2) A person bound by this section must not
directly or indirectly, except in the exercise
of powers or performance of functions in
connection with a contractor's operations
under an agreement under section 124B(1)—
Law and Justice Legislation Amendment Act 1997
| s. 29 | Act No. 44/1997 |
(a) make a record of, or divulge to any person any information acquired by reason of being a person referred to in sub-section (1); or
(b)
make use of any such information for a purpose other than in the exercise of those powers or performance of those functions.
Penalty: 100 penalty units.
(3) Nothing in sub-section (2) prevents a person bound by this section from—
(a)
producing a document to a court in the course of any criminal or civil proceedings; or
(b)
divulging to a court any information that has come to the notice of the person by reason of being a person referred to in sub-section (1).
(4) In this section—
"court" includes any tribunal, authority or
person having power to require the
production of documents or the
answering of questions;
"produce" includes permit access to.'.
29. Recall and cancellation of warrant
In section 58(1)(b) of the Principal Act, after
"issued" (where secondly occurring) insert "or,
except in the case of a warrant issued under clause8(1) of Schedule 7, any other registrar".
30. Execution costs
(1) In clause 7 of Schedule 7 to the Principal Act, sub-clause (3) is repealed.
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 31 (2) In clause 8 of Schedule 7 to the Principal Act, after sub-clause (1A) insert—
"(1B) Any fee prescribed under this Act in respect
of the execution of a warrant issued under
sub-clause (1) forms part of the lawful costs
of execution of the warrant.".
31. Transitional provisions
In Schedule 8 to the Principal Act, after clause 15
insert—"16. The amendment of section 58(1)(b) made by
section 29 of the Law and Justice to warrants issued before as well as after the commencement of section 29 of that Act.
17. The amendment of Schedule 7 made by section 30(2) of the Law and Justice Legislation Amendment Act 1997 applies to warrants issued before as well as after the commencement of section 30(2) of that Act.".
_______________
Law and Justice Legislation Amendment Act 1997
| s. 32 | Act No. 44/1997 |
PART 7—PUBLIC PROSECUTIONS ACT 1994
32. Amendment of section 46
| No. 43/1994. | (1) In section 46(1) of the Public Prosecutions Act |
| Reprint No. 1 | |
| as at 14 | 1994— |
| November | |
| 1996. Further | (a) after "law" insert "but subject to sub-section |
| amended by | |
| No. 35/1996. | (5)"; |
(b) omit "that involves an interference with the due administration of justice, either in relation to a pending proceeding or more generally". (2) In section 46 of the Public Prosecutions Act 1994, after sub-section (1) insert—
"(1A) For the avoidance of doubt it is declared that sub-section (1) applies—
(a) whether the contempt is classified as criminal or civil in nature; (b) irrespective of whether the contempt is committed in relation to a pending proceeding or otherwise; (c) relation to a pending proceeding,
where the contempt is committed in is criminal or civil in nature;
(d)
where the contempt is constituted by conduct that aided, abetted, counselled or procured or incited the commission of a contempt of court by another person.".
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 32 (3) In section 46(5) of the Public Prosecutions Act
1994—
"(a) for paragraph (a) substitute—
(a) takes away any right that a person may have to apply to a court for punishment of a person for a contempt of court, whether criminal or civil in nature—
(i) that involves a breach of a court order or of an undertaking given (whether expressly or impliedly) to a court; or
(ii) that involves the disclosure of the fact that an offer of compromise of a claim has been made in a pending proceeding or of the terms of such an offer; or
(iii) that involves an abuse of process; or
(iv) that involves a breach by a legal practitioner of an obligation owed by the practitioner to the court; or
(v) that involves aiding, abetting,
counselling, procuring or inciting
a breach referred to in sub-
paragraph (i), (ii), (iii) or (iv); or";(b) at the end of paragraph (c) insert—
"; or
(d)
takes away any right that the Legal Practice Board may have to apply to the Supreme Court under section 441(2) of the Legal Practice Act 1996.".
Law and Justice Legislation Amendment Act 1997
| s. 33 | Act No. 44/1997 |
33. Supreme Court—limitation of jurisdiction
It is the intention of section 32 to alter or vary section 85 of the Constitution Act 1975.
_______________
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 34
PART 8—ROAD SAFETY ACT 1986
34. Issue of infringement notices
(1) In section 88(1) of the Road Safety Act 1986, for "issue and" substitute "issue or cause to be issued
No. 127/1986. Reprinted to
No. 58/1995.
and serve or".
Subsequently amended by
(2) In section 88(1A) of the Road Safety Act 1986, after "issued" insert "or caused to be issued".
Nos 100/1995, 25/1996 and
37/1986.
_______________
Law and Justice Legislation Amendment Act 1997
| s. 35 | Act No. 44/1997 |
PART 9—SECOND-HAND DEALERS AND PAWNBROKERS
ACT 1989
35. Principal Act
| No. 54/1989. | In this Part, the Second-Hand Dealers and |
| Reprinted to | |
| No. 41/1995 | Pawnbrokers Act 1989 is called the Principal |
| and | Act. |
| subsequently amended by Nos 66/1996 and 74/1996. |
36. Definitions
(1) In section 3(1) of the Principal Act—
(a) insert the following definitions—
' "associate", in relation to a person,means—
(a) a spouse or de facto spouse of the person; or (b) a business partner of the person; or (c) arrangement or relationship with
the person in respect of a second-a participant in a business business;
"disqualifying offence" means an offence
involving fraud, dishonesty, violence or
drug trafficking punishable on
conviction by—
(a) in the case of a natural person, imprisonment for 3 months or more (whether or not in addition to a fine); or
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 36 (b)
in the case of a body corporate, a fine of 100 penalty units or more;
"externally-administered corporation"
means a corporation—
(a) that is being wound up; or
(b) in respect of property of which a receiver, or a receiver and manager, has been appointed (whether or not by a court) and is acting; or (c) that is under official management; or (d) compromise or arrangement with
another person under Part 5 of the
Corporations Law, thethat has entered into a been concluded;
"insolvent under administration" means a person who is a bankrupt in respect of a bankruptcy from which the person has
not been discharged and includes—
(a) of arrangement under Part X of
the Bankruptcy Act 1966 of the
Commonwealth (or the
corresponding provisions of thea person who has executed a deed the terms of the deed have not been fully complied with; and
(b) accepted a composition under Part
X of the Bankruptcy Act 1966 ofa person whose creditors have corresponding provisions of the
Law and Justice Legislation Amendment Act 1997
| s. 37 | Act No. 44/1997 |
law of another jurisdiction) where a final payment has not been made under that composition;
"Secretary" means the Secretary to the Department of Justice.';
(b) in the definition of "second-hand dealer", for "and otherwise" substitute "or otherwise".
(2) In section 3(2)(a) of the Principal Act, after "right
to repurchase the goods" insert '(commonly
known as a "buy-back")'.
37. Application of Act
In section 4(e) of the Principal Act, after "regulations" insert "from the application of the whole or any provision of this Act or the regulations".
38. Substitution of Part 2
For Part 2 of the Principal Act substitute—
"PART 2—REGISTRATION
5. Second-hand dealers and pawnbrokers to be registered
(1) Subject to this Act, a person must not, either alone or in partnership, carry on business as a second-hand dealer or a pawnbroker unless
the person is registered as a second-hand
dealer under this Part.
Penalty: 100 penalty units.(2) Despite sub-section (1), a person who holds a motor car trader's licence under the Motor Car Traders Act 1986 may buy, sell,
exchange or otherwise deal in second-hand
goods that are motor car parts without being
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 38 registered under this Part, but must in all
other respects comply with this Act.
6. Eligibility for registration under this Part if the person or, in the case of a body corporate, a director of the body corporate—
(a) has, within the preceding 5 years in Australia or elsewhere, been convicted or found guilty of a disqualifying offence; or (b) is an insolvent under administration or or
(c) is an associate of a person who—
(i) has, within the preceding 5 years, been convicted or found guilty of a disqualifying offence; or
(ii) is an insolvent under
administration or an externally-
administered corporation.
7. Application for registration
(1) An application for registration as a second-
hand dealer may be made to the Secretary.
(2) An application must be—
(a)
in writing in or to the effect of the form approved by the Secretary and must be verified by statutory declaration; and
(b)
accompanied by evidence as to the identity of—
(i) the applicant; or
Law and Justice Legislation Amendment Act 1997
| s. 38 | Act No. 44/1997 |
(ii) if the applicant is a body applicant—
by means of a birth certificate, passport (if the passport is current or expired for not more than 2 years), driver licence
or any other document in one of the
prescribed categories; and
(c) accompanied by the prescribed fee; and
(d) lodged with the Secretary—
(i) day on which the applicant
proposes to commence business asnot less than 1 month before the pawnbroker; or
(ii) section 38 of the Law and Justice
Legislation Amendment Actif, on the commencement of business as a second-hand dealer or pawnbroker, not more than 6 months after that commencement.
8. Investigation of application
(1) On receiving an application for registration as a second-hand dealer, the Secretary must refer a copy of the application to the Chief
Commissioner of Police.
(2) The Chief Commissioner of Police must, not
more than 14 days after receipt of the copy
by the Commissioner, enquire into and
report to the Secretary on the criminal
record, if any, of—
(a) the applicant;
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 38
(b)
if the applicant is a body corporate, the directors of the applicant;
(c) the associates, if any, of the applicant.
9. Registration
(1) The Secretary must register an applicant as a
second-hand dealer unless the applicant is
not eligible under section 6 to be so
registered.
(2) A registration remains in force until it is cancelled or surrendered.
(3) The Secretary may cancel the registration of
a person if the person fails to lodge a
statement as required by section 11.
10. Automatic cancellation of registration
(1) A person who is registered under this Partceases to be so registered if the person or, in the case of a body corporate, a director of the body corporate or an associate of the person
or director—
(a)
in Australia or elsewhere, is convicted or found guilty of a disqualifying offence; or
(b) becomes an insolvent under
administration or an externally-
administered corporation.(2) For the purposes of sub-section (1), a
conviction or finding of guilt takes effect at the conclusion of the proceedings, whether on appeal or otherwise, or at the end of any appeal period, whichever is the later.
(3) This section does not apply to a conviction
or a finding of guilt before the
commencement of section 38 of the Law
and Justice Legislation Amendment Act
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997
1997, whether the proceedings conclude or
an appeal period ends after that
commencement.
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 38
11. Lodgment of statement later than 12 months after the date of registration and thereafter at intervals of not more than 12 months, lodge with the Secretary a statement in or to the effect of the form approved by the Secretary containing the information required by the Secretary, signed by the person and accompanied by the prescribed fee.
12. Notification of changes
If a person registered under this Part—(a) changes business premises; or
(b)
in the case of a body corporate, changes directors; or
(c) changes associates; or
(d)
ceases business as a second-hand dealer or pawnbroker—
the person must give notice in writing to the
Secretary within 7 days after the change or
cessation.Penalty: 10 penalty units.
13. Register
(1) The Secretary must cause a register to be
kept of all persons registered under this Part
containing the prescribed particulars.(2) The register may be inspected at the office of
the Secretary by any person during ordinary
office hours without charge.
(3) A person may obtain a copy of or an extract
from the register on payment of the
prescribed fee.
Law and Justice Legislation Amendment Act 1997
| s. 38 | Act No. 44/1997 |
14. Correction of the register
(1) The Secretary may correct an error or
omission in the register by—
(a) inserting an entry; or
(b) amending an entry; or(c) omitting an entry—
if the Secretary is satisfied that the register
contains an error.(2) The Secretary may make the correction on his or her initiative or on the application of any person.
(3) The Secretary must notify the person
registered of any correction made under this
section that affects the registration.
(4) A person may apply to the Administrative
Appeals Tribunal for review of the
Secretary's decision concerning correction of
the register.
(5) The Secretary must make any correction to the register that is necessary to implement the decision of the Administrative Appeals Tribunal.
15. Approved forms the Government Gazette all forms approved for the purposes of this Part.
16. Offences
(1) A person must not knowingly or recklesslymake a false or misleading statement in or in connection with an application, statement or notice under this Part.
Penalty: 20 penalty units.
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 39 (2) An applicant for registration must not submit false evidence of identity.
Penalty: 50 penalty units.".
39. Substitution of section 19
For section 19 of the Principal Act substitute—
"19. Identifying persons selling or pawning
goods
(1) A second-hand dealer or pawnbroker must
require every person attempting to sell or
pawn second-hand goods to the second-hand
dealer or pawnbroker to produce evidence as
to the person's identity—
(a)
by means of a passport, driver licence or other document in one of the prescribed categories bearing a photograph of the person; or
(b)
by means of 2 documents in the prescribed categories but each in a different category.
Penalty: 20 penalty units.
(2) If a person attempting to sell or pawn
second-hand goods is, on request, unable to
produce the required evidence of identity,
the second-hand dealer or pawnbroker must
refuse to accept the goods.
Penalty: 20 penalty units.
(3) A person attempting to sell or pawn second-
hand goods to a second-hand dealer or
pawnbroker must not produce false evidence
of identity.
Penalty: 50 penalty units.".
Law and Justice Legislation Amendment Act 1997
| s. 40 | Act No. 44/1997 |
40. Recording transactions
In section 20 of the Principal Act, after
"transaction" insert ", whether conducted on thebusiness premises or elsewhere,".
41. Insertion of new section 21A
After section 21 of the Principal Act insert—
"21A. Recording storage location of goods
A second-hand dealer or pawnbroker must keep accurate and complete records of the place of storage of each item of second-hand
goods in the possession or under the control
of the dealer or pawnbroker.Penalty: 20 penalty units.".
42. Charges of pawnbrokers
In section 23 of the Principal Act, for sub-sections
(2), (3) and (4) substitute—"(2) A pawnbroker must cause a notice—
(a) in or to the effect of a form approved by the Secretary; and (b) weekly and monthly, or any other
showing the maximum amount charged pawnbroker on pawn transactions; and
(c)
stating that in special circumstances a higher amount may be charged by the pawnbroker—
to be displayed in a prominent place in or
outside each business premises of the
pawnbroker to which the public has access
so that the notice is clearly visible to the
public from outside the premises.
Penalty: 10 penalty units.
Law and Justice Legislation Amendment Act 1997
s. 42
s. 43
Act No. 44/1997
(3) A pawnbroker who advances money on the security of goods received in pawn must serve on the owner of the goods written notice of the charge that will be imposed on
the transaction.
(4) Subject to sub-section (5), a pawnbroker must not charge on a pawn transaction an amount more than an amount calculated in
accordance with the amount displayed on a
notice under sub-section (2)(b).
Penalty: 20 penalty units.(5) A pawnbroker may charge an amount more
than an amount calculated in accordance
with the amount displayed under sub-section
(2)(b) if—
(a)
it is reasonable to do so because the pawnbroker is likely to incur additional storage costs in relation to the goods being pawned; or
(b)
it is reasonable to do so because the agreement provides for amounts to be paid less frequently than is specified in the notice under sub-section (2); or
(c) the regulations so provide—
and—
(d)
the notice referred to in sub-section (3) specifies the reason why the higher charge is made; and
(e)
the owner of the goods agrees in writing to the higher charge; and
(f)
the pawnbroker serves on the owner of the goods a copy of the agreement referred to in paragraph (e).".
43. Insertion of new sections 24A and 24B
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997
After section 24 of the Principal Act insert—
"24A. Offence of failing to comply with court
order
A person to whom an order of the
Magistrates' Court under section 24 is
directed must comply with the order.Penalty: 50 penalty units.
24B. Sign to be displayed
A second-hand dealer or pawnbroker must
cause a notice in the form in the Schedule, in
legible letters not less than 15 millimetres in
height and of a colour that contrasts with the
background colour of the notice, to be
displayed in a prominent place in each
business premises of the dealer or
pawnbroker to which the public has access
so that the notice is clearly visible to the
public.Penalty: 10 penalty units.".
44. Police powers of inspection
In section 25 of the Principal Act, for sub-section
(1) substitute—"(1) A member of the police force may, without
warrant, enter business premises or storage
premises occupied by or under the control of
a second-hand dealer or pawnbroker at any
time when the business premises are open
and may inspect the premises or any goods atthe premises.".
45. Service
In section 27(2) of the Principal Act, for "sections
528, 529 and 530 of the Companies (Victoria)
Code" substitute "the provisions of the
Corporations Law with respect to service".
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 46
46. Substitution of section 28
For section 28 of the Principal Act substitute—
"28. DelegationThe Secretary may, by instrument, delegate to a person employed in the Department of Justice under Part 2 of the Public Sector
Management Act 1992 the powers and functions of the Secretary under this Act, other than this power of delegation.".
47. Evidentiary
In section 29(b) of the Principal Act, for sub-
paragraphs (i), (ii) and (iii) substitute—
"(i) a certificate issued by the Secretary statingthat at a particular time a person was or was not registered under this Act is proof of that fact; and
(ii) proof is not required that such a certificate purporting to be issued by the Secretary was so issued.".
48. Bodies corporate
In section 30(1) of the Principal Act, after "Act" insert "or the regulations".
49. Regulation-making power
In section 31(1) of the Principal Act—
(a)
for paragraph (a) substitute— "(a) prescribing categories of documents as
to identity; and
Law and Justice Legislation Amendment Act 1997
| s. 50 | Act No. 44/1997 |
(ab) prescribing particulars to be recorded in the register; and";
(b)
for paragraph (d) substitute— "(d) fees; and";
(c)
in paragraph (e), after "Act" insert "or the regulations".
50. Repeal
(1) Section 27(3) of the Principal Act is repealed.
(2) Section 32 of the Principal Act is repealed.
51. Insertion of new section 36
After section 35 of the Principal Act insert—
"36. Licence applicationsPart 2 of this Act (except section 11(2)) as in force immediately before the commencement of section 38 of the Law and Justice
Legislation Amendment Act 1997 continues to apply to applications for licences under Part 2 that have been lodged with a council but not determined before that commencement.".
52. Insertion of Schedule
At the end of the Principal Act insert—
"SCHEDULE
Section 24B
ANY PERSON WHO BELIEVES THAT GOODS
STOLEN FROM THEM ARE AVAILABLE FOR SALE
ON THESE PREMISES IS NOT OBLIGED TO BUYTHEM BUT MAY—
(a) REQUEST THE POLICE TO SERVE A NOTICE DISPOSAL OF THE GOODS FOR 21 DAYS; AND
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 52
(b)
SEEK AN ORDER FROM THE MAGISTRATES' COURT FOR DELIVERY OF THE GOODS.
SEE SECTIONS 24 AND 26 OF THE SECOND-HAND
DEALERS AND PAWNBROKERS ACT 1989.".
_______________
Law and Justice Legislation Amendment Act 1997
| s. 53 | Act No. 44/1997 |
PART 10—SUMMARY OFFENCES ACT 1966
53. Criminal trespass
| No. 7405. | (1) In section 3 of the Summary Offences Act 1966, |
| Reprinted to | |
| No. 23/1994. | after the definition of "road" insert— ' "Scheduled public place" means a public place |
described in Schedule 1;'.
(2) In section 9(1) of the Summary Offences Act
1966—
(a)
in paragraph (d), for "place" (where first occurring) substitute "public place other than a Scheduled public place";
(b) at the end of paragraph (d) insert—
"; or
(e) given by the owner or occupier or given
without express or implied authority person authorised to give it or without any other lawful excuse, wilfully enters any private place or Scheduled public place, unless for a legitimate purpose; or
(f) neglects or refuses to leave a private place or Scheduled public place after being warned to do so by the owner or occupier or a person authorised to give that warning on behalf of the owner or occupier, unless the person has a lawful
excuse; or
(g)
without lawful excuse, enters any place (whether private or public) in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace—".
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 53 (3) In section 9 of the Summary Offences Act 1966, after sub-section (1A) insert—
"(1B) A person may commit an offence against
paragraph (d), (e), (f) or (g) of sub-section (1) even though he or she did not intend to take possession of the place.
(1C) Without limiting paragraph (e) of sub-
section (1), examples of circumstances in which a person does not have express or implied authority to enter a place are—
(a)
the person enters that place after having been previously warned not to enter by the owner or occupier or a person
authorised to give such a warning on
behalf of the owner or occupier; or(b)
the person enters that place despite being then warned not to enter by the owner or occupier or a person authorised to give such a warning on behalf of the owner or occupier; or
(c)
the person enters that place in breach of a prominently displayed sign erected at that place by the owner or occupier or a person authorised to erect such a sign
on behalf of the owner or occupier
stating that—
(i) persons of which the person
concerned is a member, isthe person concerned, or a class of place; or
(ii) persons engaging in that place in the type of activity in which the person concerned is proposing to
Law and Justice Legislation Amendment Act 1997
| s. 54 | Act No. 44/1997 |
engage in that place are prohibited
from entering that place—
and the person has no other lawful excuse for
entering that place.(1D) A warning may be given to a person under sub-section (1)(f) or sub-section (1C)(a) or (b)—
(a) orally; or
(b) by delivering written notice of it personally to the person; or (c) except in the case of a warning under sub-section (1)(f), by sending written notice of it by certified mail addressed to the person at his or her usual or last
known place of residence.(1E) A person may commit an offence against
paragraph (g) of sub-section (1) even though
he or she had a right to enter that place in a
manner other than that described in that
paragraph.".
54. New section 62 inserted
After section 61 of the Summary Offences Act
1966 insert—"62. Transitional provision
If on the commencement of section 55 of the Schedule 1 to this Act has effect, until that section comes into operation, as if item 2 of that Schedule referred to a children's service
Law and Justice Legislation Amendment
Act 1997, section 57 of the Children's
Law and Justice Legislation Amendment Act 1997
Act No. 44/1997 s. 55
centre within the meaning of Part XIA of the financial assistance from the State.".
55. New Schedule 1 inserted
At the end of the Summary Offences Act 1966 insert—
"SCHEDULE 1
SCHEDULED PUBLIC PLACES
1. Land used for the purposes of a State school within the meaning of the Education Act 1958.
2. Premises or place where a children's service within the meaning of the Children's Services Act 1996 operates in respect of which the Secretary within the meaning of that Act provides grants, payments, subsidies or other financial assistance.
3. Premises that are—
(a) a residential institution within the meaning of the Intellectually Disabled Persons' Services Act 1986; or (b) used to provide a residential program within the meaning of that Act; or (c) used by a registered residential service within the meaning of that Act to provide residential services to eligible persons within the meaning of that Act. 4. Premises that are an approved mental health service within the meaning of the Mental Health Act 1986.
5. Land held or managed by the trustees of a public cemetery to which the Cemeteries Act 1958 applies.".
═══════════════
Law and Justice Legislation Amendment Act 1997
| Notes | Act No. 44/1997 |
NOTES
†
Minister's second reading speech—
Legislative Assembly: 23 April 1997
Legislative Council: 27 May 1997
The long title for the Bill for this Act was "to amend the Crimes Act
1958, the Crimes (Family Violence) Act 1987, the Legal Aid Act 1978,
the Legal Aid Commission (Amendment) Act 1989, the Legal Practice
Act 1996, the Magistrates' Court Act 1989, the Public Prosecutions
Act 1994, the Road Safety Act 1986, the Second-Hand Dealers and
Pawnbrokers Act 1989 and the Summary Offences Act 1966 and forother purposes."
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 23 April 1997 and 20 May 1997
Legislative Council: 27 May 1997
Absolute majorities:
Legislative Assembly: 23 May 1997
Legislative Council: 29 May 1997
1 Division 3 of Part 4 of the Magistrates' Court Act 1989 contains
provisions for the issuing of warrants. Section 57(2) of that Act provides that all warrants, other than a search warrant, may be issued by a registrar or a magistrate.
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