Magistrates' Court (Amendment) Act 1999 (Vic)

Magistrates' Court (Amendment) Act 1999

Act No. 10/1999

TABLE OF PROVISIONS

Section	Page
PART 1—PRELIMINARY	1

1.	Purposes	1
2.	Commencement	2
3.	Principal Act	2

PART 2—COMMITTAL PROCEEDINGS 3

4.	New Schedule 5 substituted	3
SCHEDULE 5—Provisions applicable to committal proceedings	3
5.	New sections 56A and 56B inserted	21

56A.	Compulsory examination procedure	21
56B.	Nothing in Act affects certain powers of DPP	23

6. New section 142 inserted 23

142. Rules of court—committal proceedings 23

7.	Transitional provisions	25
8.	Consequential amendments	26

PART 3—APPEALS 27

9.	Powers of County Court on appeal	27
10.	Removal of restriction on County Court powers on certain
appeals	28
11.	New section 88AA inserted	28
88AA. Costs powers of County Court on appeal	28
12.	New section 89A inserted	29

89A.	Re-hearing where County Court hears appeal in
appellant's absence 29

13.	Appellant to be informed that sentence may be increased	30
14.	Abandonment of appeal	31
15.	Appeal against aggregate sentence	31
16.	Transitional provisions	32
17.	Appeals under Children and Young Persons Act 1989	32
18.	Time held in custody pending appeal	33
19.	New section 121 inserted in Sentencing Act 1991	34

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Section Page

121.        Transitional provisions—Magistrates' Court

(Amendment) Act 1999 34

20. New section 592 inserted in Crimes Act 1958 34

592.        Transitional provisions—Magistrates' Court

(Amendment) Act 1999 34

PART 4—MISCELLANEOUS 35

21. New section 13B inserted in Principal Act 35

13B. Development and training of magistrates and registrars 35

22.	Rules with respect to service outside Australia	35
23.	Requirements for appointment as registrar	35
24.	Power of Magistrates' Court to restrain publication, etc.	36
25.	Circumstances in which Supreme Court may be closed	37
26.	New section 139A inserted in Supreme Court Act 1986	37
139A. Transitional provision	37
27.	Injunctive power of County Court in criminal proceedings	38
28.	New sections 80 and 80AA substituted in County Court Act
1958	38

80. Power to close proceedings to the public 38

80AA. Circumstances in which order may be made under

section 80 39

29. New section 89 inserted in County Court Act 1958 40

89. Transitional provisions 40

30.	Penalties on breaching sentencing orders	40
31.	Minor amendments	40

═══════════════

NOTES 43

ii

Victoria

No. 10 of 1999

Magistrates' Court (Amendment) Act

1999†

[Assented to 11 May 1999]

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1. Purposes

The main purposes of this Act are—

(a)	to reform committal proceedings in the Magistrates' Court;
(b)	to change the system of appeals from the Magistrates' Court in criminal proceedings;

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(c)	to broaden the civil rule-making powers under the Magistrates' Court Act 1989;
(d)	to make the Chief Magistrate responsible for the professional development and training of magistrates and registrars;
(e)	to empower the Magistrates' Court to prohibit publication of material relevant to a pending proceeding;
(f)	to enlarge the power of the County Court to grant injunctive relief in criminal proceedings and the power of the Supreme Court and County Court to close the court in both civil and criminal proceedings;
(g)	to amend the penalties for certain offences under the Sentencing Act 1991 constituted by the breach of a sentencing order.

2. Commencement

(1) This Part and Part 4 come into operation on the day on which this Act receives the Royal Assent.

(2) The remaining provisions of this Act come into operation on 1 July 1999.

3. Principal Act

In this Act, the Magistrates' Court Act 1989 is	No. 51/1989. Reprint No. 5
called the Principal Act.	as at 1 July 1998. Further
amended by Nos 84/1997
and 15/1998.

_______________
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PART 2—COMMITTAL PROCEEDINGS

4. New Schedule 5 substituted

For Schedule 5 to the Principal Act substitute—

'SCHEDULE 5

Section 56

PROVISIONS APPLICABLE TO COMMITTAL

PROCEEDINGS

PART 1—PRELIMINARY

1. Definitions and provision about service

(1) In this Schedule—

"committal mention date" means the date on which a

committal mention hearing is held under clause 4;

"prescribed" means prescribed by the Rules;

"registrar" means the registrar at the venue of the Court at which a committal proceeding is to be held.

(2)	If a legal practitioner has filed an appearance on behalf of a defendant or has given notice in writing to the registrar that he or she is representing a defendant or is willing to accept service of documents on behalf of a defendant, a document required by this Schedule to be served personally on the
defendant must be taken to have been duly served on the defendant if it is served on that legal practitioner by—

(a)	leaving it at the business address of that practitioner with a person who apparently works there and who apparently is not less than 16 years of age; or
(b)	sending it by registered post to that practitioner at that practitioner's business address.

2. Power of Court to control committal proceedings

Without limiting its powers under section 136 or prejudicing the need for the defendant to be dealt with fairly, the Court may at any stage of a committal proceeding give any direction for the conduct of the proceeding which it

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considers to be consistent with the interests of justice and

conducive to—

(a) defining the issues in the proceeding; or

(b) the prompt and efficient disposal of the proceeding.

PART 2—MENTION HEARINGS

3. Special mention hearing

(1) The purposes of a special mention hearing are to—

(a)	ensure that the Court can adequately control and oversee the progress of the committal proceeding;
(b)	provide an opportunity for the Court to set timetables for the expeditious and efficient progress of the committal proceeding;
(c)	enable the expeditious committal of a defendant for trial if the defendant indicates an intention to plead guilty to the offence;
(d)	provide an opportunity for a matter to be dealt with without the necessity to hold a committal proceeding.

(2)	A date for a special mention hearing may be fixed in accordance with the Rules.
(3)	More than one special mention hearing may be held in the course of a committal proceeding.

(4) Unless excused by the Court—

(a) the informant or his or her representative; and

(b) the defendant and the legal practitioners representing the defendant—

must attend a special mention hearing.

(5) A special mention hearing may be cancelled in accordance with the Rules.

4. Committal mention hearing

(1) At a committal mention hearing the Court may—

(a) immediately determine the committal proceeding;

(b) determine any application for a summary hearing under section 53(1) or offer a summary hearing under that section;

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(c)	hear and determine an application for leave to cross- examine a witness notice of which was given under clause 12(1);
(d)	hear and determine any objection to disclosure of material;
(e)	subject to sub-clause (7), adjourn the hearing of the committal proceeding to enable the defendant to obtain legal representation or for any other reason;

(f) fix another committal mention date.

(2) A committal mention hearing must be held in accordance with the Rules within—

(a) the period of 3 months after the commencement of the proceeding for the offence if the offence is—

(i) an offence against section 38, 39 (if the complainant was under the age of 16 at the time of the alleged offence), 44, 45, 46, 47, 47A, 51, 52 or 57 of the Crimes Act 1958; or

(ii)  an offence of attempting to commit an offence referred to in sub-paragraph (i); or

(iii)  an offence of committing an assault with intent to commit an offence referred to in sub- paragraph (i); or

or any other period fixed by the Court under sub-clause (3). in the case of any other offence, the period of for the offence—

(b)

(3) The Court may fix a longer or shorter period for the holding
of a committal mention hearing but cannot do so after the
period referred to in sub-clause (2)(a) or (b) (as the case
requires), or any other period previously fixed under this
sub-clause, has expired unless the Court is satisfied that,
having regard to all the circumstances of the case including
the seriousness of the offence and the overall interests of
justice, another period should be fixed because of the
existence of exceptional circumstances or another good and
sufficient reason.

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(4) Sub-clause (2) does not apply—

(a) if the defendant has failed to appear in accordance with the conditions of his or her bail; or

(b)	if a warrant to arrest the defendant has been issued and at the end of the period referred to in sub-clause (2)(a) or (b) (as the case requires) from the commencement of the proceeding for the offence the defendant has not been arrested; or
(c)	if the defendant requests that a committal mention hearing be held after the period referred to in sub- clause (2)(a) or (b) (as the case requires) and the

Court is satisfied that in the interests of justice the request should be granted.

(5) If a committal mention hearing has not been held before the
period referred to in sub-clause (2)(a) or (b) (as the case
requires), or any other period fixed under sub-clause (3), has
expired, the Court may, on the application of the defendant,
order the defendant to be discharged.

(6) Unless excused by the Court—

(a) the informant or his or her representative; and

(b) the defendant and the legal practitioners representing the defendant—

must attend a committal mention hearing.

(7) The Court must, in considering whether to adjourn the

hearing of a committal proceeding to enable the defendant
to obtain legal representation, have regard to whether the
defendant has made reasonable attempts to obtain legal
representation.

PART 3—SERVICE OF PROSECUTION BRIEFS

5. Plea brief may be served by informant

(1) With the consent in writing of the defendant, or a legal
practitioner representing the defendant, given at any time
before service of a hand-up brief under this Part, the
informant may serve personally on the defendant a plea
brief containing—

(a) a copy of the charge-sheet relating to the offence; and

(b) a statement of the material facts relevant to the charge; and

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(c)	a copy of any statement relevant to the charge signed by the defendant, or a record of interview of the defendant, that is in the possession of the informant; and
(d)	a copy, or a transcript, of any tape-recording within the meaning of Subdivision (30A) of Division 1 of Part III of the Crimes Act 1958; and
(e)	a copy or statement of any other evidentiary material that is in the possession of the informant relating to a confession or admission relevant to the charge made by the defendant.

(2) The informant must include in a plea brief a copy of any
statement, that is in his or her possession and the contents of
which would be admissible in evidence, made by an alleged
victim of an offence to which the committal proceeding
relates about the circumstances of the offence.

(3) The informant may include in a plea brief any other

statement relevant to the charge that the informant wants to
include in the circumstances.

(4)	Clause 8 applies to a statement under sub-clause (2) or (3) in the same way that it applies to a statement that the informant intends to tender at the committal proceeding.
(5)	Service of a plea brief may be proved in any manner in which service of a summons to answer to a charge may be proved under section 35.
(6)	The informant must file a copy of the plea brief with the registrar, and forward another copy to the Director of Public Prosecutions, as soon as practicable after service of the brief on the defendant.

6. Service of hand-up brief by informant

(1) Subject to sub-clause (2), the informant must serve on the defendant a hand-up brief which must contain—

(a) a notice in the prescribed form—

(i) specifying the committal mention date; and

(ii) explaining the nature of a committal proceeding and the purpose of the various stages; and

(iii)  explaining the importance of the defendant obtaining legal representation, describing the

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effect of clause 4(7) and providing details of how to contact Victoria Legal Aid; and

(b) a copy of the charge-sheet relating to the offence; and

(c)	a list of the persons who have made statements that the informant intends to tender at the committal proceeding together with copies of those statements; and
(d)	if a person has been examined under section 56A and the informant intends to tender a record of that examination at the committal proceeding, a transcript of the recording of the examination; and
(e)	a copy of any document that the informant intends to produce as evidence; and
(f)	a list of any things proposed to be tendered as exhibits; and

(g) a photograph of any proposed exhibit that cannot be described in detail in the list; and

(h) if the committal proceeding relates (wholly or partly) to a charge for—

(i) a sexual offence; or

(ii)  an offence which involves an assault on, or injury or a threat of injury to, a person—

a transcript of any audio or video recording of a kind
referred to in section 37B(2) of the Evidence Act
1958 that the informant intends to tender at the
committal proceeding; and

(i)  if the committal proceeding relates (wholly or partly) to a charge for a sexual offence, a copy of every statement made by the complainant to any member of the police force that relates to the offence with which the defendant is charged and contains an acknowledgment of its truthfulness; and

(j) a description of any forensic procedure, examination or test that has not yet been completed and on which the informant intends to rely as tending to establish

the guilt of the defendant; and

(k) a list of any other admissible statements or other documents relevant to the charge that are available to

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the informant but on which the informant does not

intend to rely; and

(l) any other list of material required by the Rules to be included in a hand-up brief.

(2) The informant is not required to serve a hand-up brief if he
or she has served a plea brief under clause 5 and the
defendant pleads guilty to the charge.

(3) Nothing in this clause takes away from any duty otherwise

imposed on the prosecution to disclose to the defence
material relevant to a charge.

7. Time for service of hand-up brief

(1) The hand-up brief must be served personally on the

defendant at least 28 days before the committal mention
date unless—

(a) the Court fixes another period at a special mention hearing; or

(b) the defendant consents in writing to a lesser period.

(2)	Service of a hand-up brief may be proved in any manner in which service of a summons to answer to a charge may be proved under section 35.
(3)	The informant must file a copy of the hand-up brief with the registrar, and forward another copy to the Director of Public Prosecutions, as soon as practicable after service of the brief on the defendant.
(4)	If a document a copy of which would have been required to be included, or material which would have been required to be listed, in a hand-up brief had it been in the informant's
time of service of the hand-up brief, comes into the informant's possession or to his or her notice at any time thereafter, a copy of the document or the list (as the case requires) must be served on the defendant, and a copy filed with the registrar and another copy forwarded to the
possession, or had the informant been aware of it, at the the document or material comes into the informant's possession or to his or her notice.

8. Rules with respect to statements

(1) A statement that the informant intends to tender at the committal proceeding must be—

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(a) in the form of an affidavit; or

(b) signed by the person making the statement and

contain an acknowledgment signed by that person in
the presence of—

(i)   a member of the police force of Victoria or of any other State or of the Northern Territory of Australia; or

(ii) a member of the Australian Federal Police; or

(iii)  an Administrative Service Officer, Class 5 or higher, in the Australian Customs Service—

that the statement is true and correct and is made in the
belief that a person making a false statement in the
circumstances is liable to the penalties of perjury.

(2) A statement that the informant intends to tender at the committal proceeding must not disclose the address or telephone number (including a private, business or official

address or telephone number) of the person who made the

statement or of any other living individual unless—

(a)	the statement does not identify the address or telephone number as that of any particular person; or
(b)	the address or telephone number is a materially relevant part of the evidence; or
(c)	the Court permits the disclosure on an application made by the informant or the defendant—

and, for this purpose, the informant may delete, or render illegible, an address or telephone number included in the statement or any copy of the statement before service on the

defendant.

(3) The Court may only grant an application made under sub- clause (2)(c) if satisfied that—

(a)	disclosure is not likely to present a reasonably ascertainable risk to the welfare or protection of any person; or
(b)	the interests of justice (including the defendant's right to prepare properly for the committal proceeding or for trial) outweigh any such risk.

(4) Compliance, or a failure to comply, with sub-clause (2) does not affect the admissibility of a statement.

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(5)	If a person under the age of 18 years makes a statement that the informant intends to tender at the committal proceeding, the statement must include the person's age.
(6)	If a person who cannot read makes a statement that the informant intends to tender at the committal proceeding—

(a) the statement must be read to the person before he or she signs it; and

(b) the acknowledgment must state that the statement was read to the person before he or she signed it.

(7) A person who acknowledges a statement that the informant

intends to tender at the committal proceeding and that the
person knows at the time to be false is liable to the penalties

of perjury.

9. Rules with respect to recordings

(1) A transcript of an audio or video recording, including a recording of an examination under section 56A, must be accompanied by an affidavit sworn by the person who asked

the questions, or made the recording, attesting to the
accuracy of the recording.

(2) A person who acknowledges the contents of a recording that the informant intends to tender at the committal proceeding and that the person knows at the time to be false may be

dealt with as if the contents of the recording had been

evidence given in court.

10. Inspection of exhibits

The defendant may inspect the exhibits at a time and place agreed between the defendant and the informant.

PART 4—PROCEDURE WHERE PLEA BRIEF SERVED

11. Procedure where plea brief served and filed

(1) If a plea brief is served under clause 5, then on the
committal mention date or at a special mention hearing held
after the filing of a copy of the brief under clause 5(6), the
Court must—

(a) caution the defendant in the prescribed manner and inform the defendant of the options set out in section

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398 of the Crimes Act 1958 and of the provisions of section 399A of that Act and, if relevant, of Rules (5) to (5C) in section 37A(1) of the Evidence Act 1958; and

(b) if the defendant pleads guilty to the charge to which the committal proceeding relates and, in the opinion of the Court, the evidence is of sufficient weight to support a conviction for the offence with which the defendant is charged, commit the defendant for trial.

(2) If the defendant does not plead guilty to the charge to which
the committal proceeding relates, the Court must direct the
informant to prepare and serve a hand-up brief.

PART 5—PROCEDURE WHERE HAND-UP BRIEF SERVED

12. Defence notice

(1)	If a hand-up brief is served under clause 6, the defendant may, no later than 14 days before the committal mention date, give notice in writing to the informant, the Director of
Public Prosecutions and the registrar stating that the defendant—

(a)	intends to seek leave to cross-examine at the committal proceeding a specified person or persons who made a statement a copy of which was served in the hand-up brief or a transcript of a recording of whose evidence-in-chief or examination under section 56A was served in the hand-up brief, the scope and purpose of the proposed questioning and how it has substantial relevance to the facts in issue;
(b)	requires specified items as listed in the hand-up brief in accordance with clause 6(1)(j), (k) or (l) to be produced for inspection or a copy given to the defendant on or before the committal mention date;
(c)	is prepared, or is not prepared, to proceed, or proceed further, with the hearing of the committal proceeding while a forensic procedure, examination or test
described in the hand-up brief in accordance with clause 6(1)(j) remains uncompleted.

(2) The defendant must include in the notice under sub-clause (1) any other thing required by the Rules to be included.

(3) Subject to sub-clause (4)(a), the informant must comply
with any reasonable request under sub-clause (1)(b) for a

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copy of an item but, if the informant considers that it is not reasonable to copy the item owing to its size or nature, the informant must allow the defendant to inspect it on or

before the committal mention date.

(4) Nothing in this clause—

(a)	prevents the informant objecting to the production of any item requested under sub-clause (1)(b) on any ground on which the informant might object if production of the item were sought by a witness summons; or
(b)	prevents the defendant applying for the issue of a witness summons in respect of any item listed in the hand-up brief in accordance with clause 6(1)(j), (k) or (l); or
(c)	requires the informant to produce any item referred to in paragraph (b) if its production is not requested under sub-clause (1)(b) or a witness summons is not issued in respect of it, unless the Court otherwise orders; or
(d)	prevents the Court or the informant proceeding, or proceeding further, with the hearing of the committal proceeding irrespective of any statement included by the defendant in the notice under sub-clause (1)(c).

(5) Nothing in this clause prevents the Court, because of the

existence of exceptional circumstances, allowing the
defendant to apply for leave to cross-examine a witness after
the expiry of the period for giving a notice under sub-clause
(1).

13. Application for leave to cross-examine a witness

(1) This clause applies to a witness who made a statement a
copy of which was served in the hand-up brief or a
transcript of a recording of whose evidence-in-chief or
examination under section 56A was served in the hand-up
brief.

(2) A witness to whom this clause applies cannot be cross- examined without leave.

(3) Sub-clause (2) also applies to any oral evidence-in-chief

supplementary to the statement or recording that the witness
may give with the leave of the Court.

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(4) The Court must not grant leave to cross-examine a witness to whom this clause applies unless satisfied—

(a)	that the evidence sought to be adduced by the proposed questioning has substantial relevance to the facts in issue; and
(b)	if the witness is under the age of 18 years, that the interests of justice cannot be adequately served except by granting leave.

(5) In considering whether to grant leave in accordance with sub-clause (4), the Court must have regard to—

(a)	the need to ensure that the case for the prosecution is adequately disclosed; and
(b)	the need to ensure that the issues are adequately defined; and
(c)	the need to ensure that the evidence is of sufficient weight to support a conviction for the offence with which the defendant is charged; and

(d) the interests of justice.

(6) Subject to clause 14(1), a witness to whom this clause applies is not required to attend a committal proceeding.

14. Attendance of witnesses

(1) If leave is granted to cross-examine a witness to whom clause 13 applies or to call such a witness to give oral evidence-in-chief, the witness must attend on the date to

which the hearing of the proceeding is adjourned for the
witness to give evidence and, if he or she does not do so, his
or her statement or recorded evidence or examination is

inadmissible in evidence.

(2) If a witness who is required to attend a committal

proceeding does not attend, the Court may—

(a) adjourn the proceeding; or

(b) cause a warrant to arrest or summons to be issued to compel the attendance of the witness; or

(c) continue the committal proceeding in the absence of the witness if satisfied that it would not be unfair to the defendant to do so.

(3) A witness who is required to attend a committal proceeding must attend on any date to which the hearing of the

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proceeding is adjourned unless excused from attendance by

the Court.

15. Giving of evidence by witnesses

(1) If the Court grants leave for the cross-examination of a

witness to whom clause 13 applies, the witness must confine his or her evidence-in-chief to identifying himself or herself and attesting to the truthfulness of the statement or of the
contents of the recording.

(2) With the leave of the Court, the prosecution may call— (a) a witness to whom clause 13 applies—

(i)  to give the whole of his or her evidence-in- chief orally; or

(ii)  to give oral evidence-in-chief supplementary to the statement or recording; or

(b) any other witness to give oral evidence-in-chief. (3) In considering whether to grant leave under sub-clause (2),

the Court must have regard to the interests of justice and must not, except where exceptional circumstances exist, grant leave for a witness to whom clause 13 applies to give

the whole of his or her evidence-in-chief orally. (4) Subject to clause 13(2) and (3), a witness who gives
evidence-in-chief may be cross-examined and re-examined.

(5) Evidence given at a committal proceeding must be recorded

in accordance with Part VI of the Evidence Act 1958.

16. Cross-examination of witnesses

Without limiting any other power that it has to forbid or disallow questions, the Court may disallow any question asked of a witness in the course of cross-examination in a committal proceeding which appears to the Court—

(a) to have no substantial relevance to facts in issue; or

(b) to be beyond the scope of the questioning for which leave to cross-examine was granted; or

(c) to be repetitive of an earlier question; or

(d) to be oppressive in the form, or manner, in which it is asked.

17. Special rules applicable to sexual offences

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(1) This clause applies to a committal proceeding relating to a charge for a sexual offence, whether or not the committal proceeding relates to any other charge against the same or any other person and whether or not it is alleged that there are aggravating circumstances.

(2) The informant must be represented by a legal practitioner.

(3) While the complainant is giving evidence or a recording of

the evidence of the complainant or of his or her examination
under section 56A is being played, only the following may
be present—

(a) the informant; (b) the defendant;

(c) a person whom the complainant wishes to have present for the purpose of providing emotional support to him or her and who is reasonably available

and approved by the court to be present;

(d) the legal practitioners and their clerks acting for the prosecution and the defence;

(e) the court officials whose presence is required;

(f)	authorized officers within the meaning of the Court Security Act 1980 whose presence is required for court security purposes;
(g)	any person recording the evidence in accordance with Part VI of the Evidence Act 1958;
(h)	other persons who have been authorised by the Court to be present.

(4) The Court must give reasons for authorising a person to be
present under sub-clause (3)(h).

18. Admissibility of non-oral evidence

(1) On proof of their service on the defendant in accordance

with Part 3 the following are, subject to sub-clauses (2) and (3), admissible as if their contents were a record of evidence given orally—

(a) any statement the truthfulness of which has been

attested to;

(b) subject to clause 14(1), any other statement a copy of which has been served in the hand-up brief;

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(c) any exhibit or document referred to in a statement which is admissible;

(d)	any recording the truthfulness of the contents of which has been attested to;
(e)	any other recording a transcript of which has been served in the hand-up brief.

(2) The Court may rule as inadmissible the whole or any part
of—

(a) a statement; or
(b) any exhibit or document referred to in a statement; or

(c) the contents of a recording.

(3) A recording, a transcript of which has been served in the
hand-up brief, is only admissible if it is proved that the
defendant and his or her legal practitioner were given a
reasonable opportunity to listen to and, in the case of a
video recording, view the recording.

19.  Procedure if defendant makes admission of relevant fact or matter

(1) If under section 149A of the Evidence Act 1958 a
defendant makes, during a committal proceeding, an
admission of any fact or matter that is relevant in the
proceeding, the Court must cause the admission to be
included in the record of the proceeding.

(2) An admission made by a defendant during a committal proceeding may be used in evidence at the subsequent trial.

20. Absence of defendant

(1) If the Court—

(a) has commenced to conduct a committal proceeding;

and

(b) is satisfied that there are special circumstances in respect of a defendant; and

(c) is of the opinion that the committal proceeding cannot

be postponed without undue prejudice or
inconvenience to the prosecution or any other
defendant or any witness—

the Court may, on application made by or on behalf of a defendant, authorise the defendant to be absent from the committal proceeding for a period fixed by the Court,

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subject to any conditions, limitations or restrictions that the

Court imposes.

(2) If, during a committal proceeding, a defendant—

(a) absconds; or

(b) behaves in a manner necessitating the defendant's

removal from the court room and the Court orders the
defendant to be removed; or

(c) is authorised under sub-clause (1) to be absent; or

(d) is absent for any other reason—

the Court may continue the committal proceeding in the
absence of the defendant if the Court is of the opinion that
the committal proceeding cannot be postponed without
undue prejudice or inconvenience to the prosecution or any

other defendant or any witness.

21. Procedure if defendant absent at close of prosecution case

If— (a) a committal proceeding is continued in the absence of

a defendant; and

(b) the defendant is not present when the evidence for the prosecution is concluded—

the Court must, unless it makes an order under clause
23(2)(a) for the defendant to be discharged—

(c) postpone the committal proceeding until the defendant is present; or

(d) if any other defendant is present, postpone the

committal proceeding in respect of the charge against
the absent defendant.

22. Procedure on defendant's attendance after absence

If a defendant—

(a) has been absent from a committal proceeding; and

(b) was not represented by a legal practitioner during the

absence—

then, on the defendant's attendance, the Court—

(c) must direct that—

Magistrates' Court (Amendment) Act 1999

s. 4 Act No. 10/1999

(i)  the record of evidence be played or the shorthand notes be read in the presence of the defendant; or

(ii)  the defendant be supplied with a transcript of the evidence; and

(d) may, on the application of the defendant, recall for

further examination any witness who gave oral
evidence during the defendant's absence.

23. Determination of committal proceeding

(1) After the evidence for the prosecution is concluded, the

Court must enquire whether the defence intends to call any witness or make any submission.

(2) If the defence indicates that it does not intend to call any
witness or make any submission, the Court must—

(a)	if in its opinion the evidence is not of sufficient weight to support a conviction for any indictable offence, order the defendant to be discharged; or
(b)	if in its opinion the evidence is of sufficient weight to support a conviction for the offence with which the defendant is charged—

(i)  caution the defendant in the prescribed manner; and

(ii) inform the defendant of the options set out in section 398 of the Crimes Act 1958 and of the provisions of section 399A of that Act and, if relevant, of Rules (5) to (5C) in section 37A(1) of the Evidence Act 1958; and

(iii) commit the defendant for trial; or

(c) if in its opinion the evidence is of sufficient weight to support a conviction for an indictable offence other than that with which the defendant is charged, direct the informant to prepare a charge for that offence and cause the defendant to be charged with that offence and then proceed in accordance with paragraph (b)(i) and (ii) and commit the defendant for trial.

(3) At the conclusion of the evidence of the witness or

witnesses called by the defence or any submissions made by
the defence, the Court must—

Magistrates' Court (Amendment) Act 1999

Act No. 10/1999 s. 4

(a)	if in its opinion the evidence is not of sufficient weight to support a conviction for any indictable offence, order the defendant to be discharged; or
(b)	if in its opinion the evidence is of sufficient weight to support a conviction for the offence with which the defendant is charged, proceed in accordance with sub- clause (2)(b)(i) and (ii) and commit the defendant for trial; or
(c)	if in its opinion the evidence is of sufficient weight to support a conviction for an indictable offence other than that with which the defendant is charged—

(i)  direct the informant to prepare a charge for that offence and cause the defendant to be charged with that offence; and

(ii)  proceed in accordance with sub-clause (2)(b)(i) and (ii) and commit the defendant for trial.

PART 6—PROCEDURE AFTER COMMITTAL

24. Procedure after committal

(1) On committing a defendant for trial the Court must—

(a)	if the defendant was not represented by a legal practitioner in the committal proceeding, explain to the defendant the importance of obtaining legal representation for the trial; and
(b)	remand the defendant in custody, or grant bail, until trial.

(2) After committal the registrar must forward to the Director of Public Prosecutions—

(a) a copy of any plea brief filed in the Court in the proceeding; and

(b) the depositions; and

(c)	all exhibits which have remained in the custody of the Court; and
(d)	copies of all process filed in the Court in the proceeding; and

(e) copies of all bail undertakings in the proceeding. (3) A defendant committed for trial is entitled as soon as

possible after being committed—

Magistrates' Court (Amendment) Act 1999

s. 4

s. 5 Act No. 10/1999

(a) to receive free of charge from the Director of Public Prosecutions—

(i) a copy of the depositions; and

(ii) subject to this Schedule and the regulations made under section 152 of the Evidence Act 1958, a copy of any exhibit not previously supplied to the defendant, if in the opinion of the Director of Public Prosecutions it is reasonable to provide a copy for the preparation of the defence; and

(b) to examine any exhibits.

PART 7—COSTS OF COMMITTAL PROCEEDINGS

25. Costs order

Without limiting its discretion under section 131(1), the Court may take into account, in determining whether to award costs against a party, any unreasonable failure on the

part of the party to comply with the requirements of this proceeding.

Schedule, or with any order made by the Court under this

26.  Court may adjourn consideration of costs where defendant discharged

(1) If the Court orders the defendant to be discharged under clause 23, it may adjourn the further determination of the proceeding for a period of up to 60 days to enable it to

determine whether to award costs against the informant in
the exercise of its discretion under section 131(1).

(2) Without limiting its discretion under section 131(1), the Court may take into account in determining whether to award costs against the informant the fact (if it is a fact) that

the Director of Public Prosecutions has made presentment of
the person for an offence on a charge for which the person

was discharged.'.

5. New sections 56A and 56B inserted

After section 56 of the Principal Act insert—

"56A. Compulsory examination procedure
Magistrates' Court (Amendment) Act 1999
Act No. 10/1999

(1) The Court may, on the application of the

informant at any time before the committal
mention date without notice to the defendant,
make an order requiring a person to attend
before the Court on a date fixed by the Court

for the purpose of being examined by or on
behalf of the informant or producing a
document or thing or both.

(2) The defendant—

(a)	is not a party to an application under sub-section (1); and
(b)

may not cross-examine a witness made under sub-section (1); and

(c) may not address the Court on an application under sub-section (1) or on a proceeding held under an order made on such an application.

(3) An order made under sub-section (1) must be

served on the person to whom it relates in
accordance with the Rules.

(4) Section 134(1) applies to a person ordered to

attend the Court under sub-section (1) as if
the person had been summoned as a witness
and had been given or tendered any conduct
money required to be given or tendered and
as if the order were a summons.

(5) The evidence of a witness under this section

must be—

(a) given on oath; and

(b) recorded in the same manner as evidence at a committal proceeding.

(6) Nothing in this section excludes or limits the operation of any other law as to the

Magistrates' Court (Amendment) Act 1999

s. 5

s. 6 Act No. 10/1999

competency or compellability of a witness to

give evidence.

56B. Nothing in Act affects certain powers of

DPP

Nothing in this Act affects the power of the

Director of Public Prosecutions—

(a)	to make presentment of a person for an offence if, on a committal proceeding conducted in relation to a charge for that offence, the Court ordered the person to be discharged on the charge; or
(b)	to enter a nolle prosequi, or not to take within the period prescribed under section 353(2) of the Crimes Act 1958 any step mentioned in that section, in relation to a charge on which a person was committed for trial on a committal proceeding.".

6. New section 142 inserted

After section 141 of the Principal Act insert—

"142. Rules of court—committal proceedings
(1) The Chief Magistrate together with 2 or

more Deputy Chief Magistrates may jointly make rules of court for or with respect to—

(a)	any matter relating to the practice and procedure of the Court in committal proceedings;
(b)	without limiting paragraph (a), steps or processes in the course of a committal proceeding, the purpose or objective of any such step or process, the
prescription of time limits in relation to the taking of any such step or process

Magistrates' Court (Amendment) Act 1999

Act No. 10/1999

and the procedure applicable to that

step or process;

(c)	forms to be used in committal proceedings;
(d)	the procedure to be followed on a proceeding held under an order made under section 56A;
(e)	generally prescribing any other matter or thing required or permitted by Schedule 5 to be prescribed by rules of court or necessary to be prescribed by rules of court to give effect to that Schedule.
(2) In exercising a power conferred by sub-	section (1) to make rules, the Chief must have regard to the interests of the community in ensuring the prompt and efficient disposal of criminal proceedings.

(3) A power conferred by sub-section (1) to make rules may be exercised—

(a)	either in relation to all cases to which the power extends, or in relation to all those cases subject to specified
exceptions, or in relation to any specified case or class of case; and
(b)	so as to make, as respects the cases in relation to which it is exercised—

(i)  the same provision for all cases in relation to which the power is exercised, or different provisions for different cases or classes of case, or different provisions for the same case or class of case for different purposes; or

Magistrates' Court (Amendment) Act 1999

s. 7 s. 6 Act No. 10/1999

(ii) any such provision either
unconditionally or subject to any
specified condition.

(4) Rules made under sub-section (1) may be

made—

(a)	so as to require a matter affected by the rules to be approved by or to the satisfaction of a specified court official or a specified class of court official; and
(b)	so as to confer a discretionary authority or impose a duty on a specified person or a specified class of person; and
(c)	so as to provide in a specified case or class of case for the exemption of committal proceedings or a class of committal proceeding from any of the provisions of the rules, whether unconditionally or on specified conditions and either wholly or to such an extent as is specified.

(5) A rule made under sub-section (1) must not be inconsistent with a provision of this Act or the regulations, whether the provision was

made before or after the making of the rule,
and a rule is (to the extent of the

inconsistency) of no force or effect.".

7. Transitional provisions

At the end of Schedule 8 to the Principal Act insert—

"20. (1) Schedule 5, as substituted by section 4 of the

Magistrates' Court (Amendment) Act 1999 applies only with respect to the hearing of charges filed after the commencement of that section.

(2) Schedule 5, as in force immediately before the commencement of section 4 of the Magistrates'

Magistrates' Court (Amendment) Act 1999

Act No. 10/1999 s. 8

Court (Amendment) Act 1999, continues to apply, despite its repeal, with respect to the hearing of charges filed before that commencement.

(3) Any amendment of this Act made by a provision of

Part 2 of the Magistrates' Court (Amendment) Act 1999 does not alter the nature of a committal proceeding from that existing immediately before the commencement of that provision.".

8. Consequential amendments

(1) In section 3(1) of the Principal Act, for the

definition of "committal mention date"
substitute—

' "committal mention date" has the meaning

given in clause 1(1) of Schedule 5;'.

(2) In section 56(3) of the Principal Act, for "clause

1(1) of Schedule 5" substitute "clause 6 of of that Schedule".

(3) In section 56(8) of the Principal Act, for "with respect to which no notice under clause 3(2) of that Schedule had been given" substitute "at

which no witness was required to attend".

(4) In Schedule 8 to the Principal Act, clauses 14, 15 and 18 are repealed.

(5) In section 413 of the Crimes Act 1958, for "clause 1" substitute "clause 6(1)".

(6) In section 42K(1)(c) of the Evidence Act 1958, for "status hearing" substitute "special mention hearing".

_______________
Magistrates' Court (Amendment) Act 1999

s. 9 Act No. 10/1999

PART 3—APPEALS

9. Powers of County Court on appeal

(1) In section 86 of the Principal Act, after sub- section (1) insert—

"(1AA) Despite any rule of law or practice to the

contrary, the County Court is not required,
on the hearing of an appeal under section 83,
to warn the appellant before making a
sentencing order of the possibility of a
sentencing order being made, or of its
intention to make a sentencing order, that is
more severe than that made by the
Magistrates' Court.".

(2) In section 86(3) of the Principal Act, paragraph (a) is repealed.

(3) In section 86 of the Principal Act, after sub- section (3) insert—

"(3A) If an appellant fails to appear at the time

listed for the hearing of the appeal, the
County Court may—

(a) proceed to hear and determine the appeal in the appellant's absence without prejudice, if the appellant has been released on bail under clause 4 of Schedule 6, to any right of action arising out of the breach of the bail undertaking; or

(b) strike out the appeal; or

(c) adjourn the proceeding on any terms that it thinks fit.

(3B) If the County Court proceeds under sub-
section (3A)(a) to hear and determine an

Magistrates' Court (Amendment) Act 1999

Act No. 10/1999 s. 10

appeal in the appellant's absence, it may do

so on the basis of—

(a)	any statement, or exhibit or document referred to in a statement, a copy of which was served on the appellant in a brief of evidence in accordance with section 37; or
(b)	evidence on oath given by or on behalf of the respondent.

(3C) The County Court may rule as inadmissible

the whole or any part of a statement or of
any exhibit or document referred to in a
statement.".

(4) In section 86(4) of the Principal Act, after "(3)"

insert "or (3A)(b)".

10.  Removal of restriction on County Court powers on certain appeals

Section 87 of the Principal Act is repealed.

11. New section 88AA inserted

After section 88 of the Principal Act insert—

"88AA. Costs powers of County Court on appeal

(1) If an appeal under section 83 is struck out or dismissed, the County Court may order the appellant to pay all or a specified portion of the respondent's costs of the appeal if

satisfied that the appeal was brought
vexatiously or frivolously or in abuse of

process.

(2) Nothing in sub-section (1) limits any

discretion as to costs of an appeal conferred on the County Court by any other provision of this Act or the County Court Act 1958.".

Magistrates' Court (Amendment) Act 1999

s. 12 Act No. 10/1999

12. New section 89A inserted

After section 89 of the Principal Act insert—

"89A. Re-hearing where County Court hears

appeal in appellant's absence

(1) If the County Court hears and determines an

appeal under section 86(3A)(a) in the
appellant's absence, the appellant may,
within 30 days after being notified in writing
of the determination of the appeal, apply to
the County Court for an order that any order
made under section 86(1) be set aside and
that the appeal be re-heard.

(2) An appellant may apply under sub-section

(1) after the end of the period of 30 days
referred to in that sub-section with the leave
of the County Court granted on an
application by the appellant under this sub-
section.

(3) The County Court may only grant leave on an application under sub-section (2) if—

(a)	it is of the opinion that the failure to apply under sub-section (1) within the period referred to in that sub-section was due to exceptional circumstances; and
(b)	it is satisfied that the respondent's case would not be materially prejudiced because of the delay.

(4) An application under sub-section (1) must—

(a)	state why the appellant did not appear at the hearing of the appeal; and
(b)	be filed with the registrar of the County Court and a copy of it served on the

Magistrates' Court (Amendment) Act 1999

Act No. 10/1999	s. 13
respondent in the same way as a notice of appeal.

(5) If the County Court grants an application under sub-section (1)—

(a) it must set aside any order made under section 86(1) and order the reinstatement of—

(i)  the order of the Magistrates' Court; and

(ii) the appeal—

subject to the payment of any costs that

it thinks fit; and

(b)	it may require the appellant to give a further undertaking to prosecute the appeal; and
(c)	clause 3 of Schedule 6 applies to the sentencing order appealed against as if the granting of the application were the filing of the notice of appeal.

(6) The County Court may only grant an

application under sub-section (1) if satisfied that the failure to appear was not due to fault or neglect on the part of the appellant.".

13.  Appellant to be informed that sentence may be increased

In clause 1 of Schedule 6 to the Principal Act, after sub-clause (4) insert—

"(4A) A notice of appeal under section 83 must include a

statement in the form approved by the Chief Judge of the County Court signed by the appellant to the effect that the appellant is aware that on the appeal the

County Court may make a sentencing order more severe than that sought to be appealed against.

(4B) Before accepting receipt of a notice of appeal under section 83 a registrar of the Magistrates' Court must—

Magistrates' Court (Amendment) Act 1999

s. 14 Act No. 10/1999

(a)	give to the person seeking to file the notice of appeal a notice in the form approved by the Chief Judge of the County Court to the effect that on the appeal the County Court may make a sentencing order more severe than that sought to be appealed against; and
(b)	if the person seeking to file the notice of appeal is not the proposed appellant, be satisfied that the proposed appellant has signed the statement required to be included in the notice of appeal by sub-clause (4A).".

14. Abandonment of appeal

(1) In clause 6(1) and (2) of Schedule 6 to the Principal Act, after "appellant may" insert ", subject to sub-clause (2A),".

(2) In clause 6 of Schedule 6 to the Principal Act, after sub-clause (2) insert—

"(2A) After the end of the period referred to in clause 1(1),
an appellant may only abandon an appeal against a
sentencing order with the leave of the County Court
granted on an application by the appellant under this
sub-clause.

(2B) An application may be made under sub-clause (2A) at any time before or after the County Court commences to hear the appeal and, if the County Court grants

such an application after commencing to hear the
appeal, it must order the reinstatement of the order of
the Magistrates' Court.

(2C) The County Court may only grant leave on an

application under sub-clause (2A) if it is satisfied that
it is in the interests of justice to do so because of the
existence of exceptional circumstances.".

15. Appeal against aggregate sentence

In Schedule 6 to the Principal Act, at the end of clause 9 insert—

"(2) On sentencing an appellant where the sentencing

order appealed against is of a kind referred to in sub- clause (1), the County Court may rely on any agreed statement of facts (however derived) relevant to any

Magistrates' Court (Amendment) Act 1999

Act No. 10/1999 s. 16

charge contained in the original charge sheet or

charge sheets.".

16. Transitional provisions

At the end of Schedule 8 to the Principal Act insert—

"21. (1) The amendments of this Act made by sections 9, 13
and 14 of the Magistrates' Court (Amendment) Act
1999 apply only with respect to appeals to the County
Court where notice of appeal is given on or after
1 July 1999.

(2) The repeal of section 87 effected by section 10 of the
Magistrates' Court (Amendment) Act 1999 does
not affect an appeal to the County Court where the
notice of appeal was given before 1 July 1999.

(3) Section 88AA, as inserted by section 11 of the

Magistrates' Court (Amendment) Act 1999, applies only with respect to appeals to the County Court where notice of appeal is given on or after 1 July 1999.".

17. Appeals under Children and Young Persons Act 1989

(1) In section 197(5) of the Children and Young Persons Act 1989—	No. 56/1989. Reprint No. 5
as at 1 July 1998. Further

(a) for "87" substitute "89A";	amended by Nos 69/1992
(b) after "Schedule 6" insert "(except clauses 1(4A) and (4B), 6(2A) to (2C) and 9(2))";	(as amended by No.
19/1994).
(c)	after paragraph (b) insert— "(ba) section 86 had not been amended by

section 9 of the Magistrates' Court
(Amendment) Act 1999; and".

(2) In Schedule 3 to the Children and Young Persons Act 1989, after clause 23 insert—

"24. Section 88AA of the Magistrates' Court Act 1989,

as applying to an appeal under section 197 of this Act
by force of Part 3 of the Magistrates' Court
(Amendment) Act 1999, applies only with respect to

Magistrates' Court (Amendment) Act 1999

s. 18 Act No. 10/1999

appeals where the notice of appeal is given on or after

1 July 1999.".

18. Time held in custody pending appeal

No. 49/1991.	(1) In section 18(1) of the Sentencing Act 1991, after
Reprint No. 4
as at 1 July	"those proceedings" insert "(including a period
1998.	pending the determination of an appeal)".

(2) In section 18 of the Sentencing Act 1991, after sub-section (1) insert—

"(1A) The Court of Appeal, on dismissing an application for leave to appeal against sentence brought under Part VI of the Crimes Act 1958, may, if it considers that

the application is frivolous or vexatious or
brought without there being any reasonably
arguable grounds for it, direct that the whole
or any part of the period of time during
which the appellant was held in custody
between giving notice of the application for
leave to appeal and the determination of the
application is not to be reckoned as a period
of imprisonment or detention already served

under the sentence.

(1B) The Court of Appeal cannot direct under

sub-section (1A) that more than 3 months of a period of custody is not to be reckoned as a period of imprisonment or detention already served under the sentence.".

(3) In section 18(2) of the Sentencing Act 1991, after

paragraph (c) insert—
"(ca) to a period of custody that is the subject of a

direction given by the Court of Appeal under

sub-section (1A); or".

No. 6231.	(4) In section 579(3) of the Crimes Act 1958—
Reprint No. 14
as at 1 July

1998.   (a) omit "and subject to any directions which the Court of Appeal may give to the contrary

Magistrates' Court (Amendment) Act 1999

Act No. 10/1999 s. 19

on any appeal, the time during which the
appellant if in custody is specially treated as

an appellant under this section";

(b) omit the expression beginning "And in the case of an appeal" and ending at the end of the sub-section.

19. New section 121 inserted in Sentencing Act 1991

After section 120 of the Sentencing Act 1991 insert—

"121. Transitional provisions—Magistrates' Court (Amendment) Act 1999

The amendments of this Act made by section 18 of the Magistrates' Court (Amendment) Act 1999 apply only in relation to appeals to the Court of Appeal for which the notice of

application for leave to appeal is given on or

after 1 July 1999.".

20. New section 592 inserted in Crimes Act 1958

At the end of Part 7 of the Crimes Act 1958 insert—

"592. Transitional provisions—Magistrates' Court (Amendment) Act 1999

The amendments of this Act made by section 18(4) of the Magistrates' Court (Amendment) Act 1999 apply only in relation to appeals to the Court of Appeal for which the notice of appeal or notice of application for leave to appeal is given on or after 1 July 1999.".

_______________
Magistrates' Court (Amendment) Act 1999

s. 21 Act No. 10/1999

PART 4—MISCELLANEOUS

21. New section 13B inserted in Principal Act

After section 13A of the Principal Act insert—

"13B. Development and training of magistrates

and registrars

The Chief Magistrate is responsible for
directing the professional development and
training of magistrates, the principal
registrar, registrars and deputy registrars.".

22. Rules with respect to service outside Australia In section 16(1) of the Principal Act, after paragraph (e) insert—

"(ea) the service of documents in civil

proceedings, including service outside

Australia;".

23. Requirements for appointment as registrar

In section 17 of the Principal Act, after sub- section (1) insert—

"(1A) The Chief Magistrate may, by notice given

(including training, skill and experience)
required to be held, or examinations in
specified subjects required to be passed, by
any person seeking to be employed under

to the Secretary, specify qualifications and Employment Act 1998 as a registrar or deputy registrar.

(1B) The Secretary, in exercising a power to

employ a person under Part 3 of the Public
Sector Management and Employment Act
1998 as a registrar or deputy registrar, shall

Magistrates' Court (Amendment) Act 1999

Act No. 10/1999 s. 24

have regard to any notice given by the Chief
Magistrate under sub-section (1A).".

24.  Power of Magistrates' Court to restrain publication, etc.

(1) In section 126(2) of the Principal Act, at the end of paragraph (c) insert—

"; or

(d) make an order prohibiting the publication of any specified material, or any material of a specified kind, relevant to a proceeding that is pending in the Court.".

(2) In section 126 of the Principal Act, at the end of

the section insert—
"(5) The Court must specify a period (not

exceeding 7 days) for which an order made
under sub-section (2)(d) is to remain in force
and the order shall remain in force for that
period unless it is sooner set aside by the

Court.

(6) The Court may set aside or vary an order

application made by any person, whether or
not a party to the proceeding pending in the

made under sub-section (2)(d) on an order to more than 7 days or make another order under sub-section (2)(d) that would have the effect of an order in the same terms being in force for more than 7 days.

(7) Nothing in sub-section (6) prevents the

Supreme Court or the County Court, in the exercise of any jurisdiction, power or authority to do so conferred on it, making an order to the same or a similar effect as an order under sub-section (2)(d), including an order that has effect from immediately an

Magistrates' Court (Amendment) Act 1999

s. 25 Act No. 10/1999

order under sub-section (2)(d) ceases to be in

force.".

(3) In Schedule 8 to the Principal Act, after clause 18

insert—

"19. The amendments of section 126 of this Act made by

section 24(1) and (2) of the Magistrates' Court
(Amendment) Act 1999 apply to proceedings,
whether commenced before or after the
commencement of that section of that Act.".

25.  Circumstances in which Supreme Court may be closed

No. 110/1986.	In section 19 of the Supreme Court Act 1986, at
Reprint No. 3
as at 1 August	the end of paragraph (e) insert—
1998.

"; or

(f) cause undue distress or embarrassment to a witness under examination in a proceeding of any kind relating to a charge for an

offence where the conduct constituting the offence consists wholly or partly of taking part, or attempting to take part, in an act of sexual penetration as defined in section 35 of

the Crimes Act 1958.".

26. New section 139A inserted in Supreme Court Act 1986

In the Supreme Court Act 1986, after section

139 insert—

"139A. Transitional provision

The amendment of section 19 of this Act made by section 25 of the Magistrates' Court (Amendment) 1999 applies to proceedings, whether commenced before or after the commencement of that section of that Act.".

Magistrates' Court (Amendment) Act 1999

Act No. 10/1999 s. 27

27.  Injunctive power of County Court in criminal proceedings

In section 36A of the County Court Act 1958,

No. 6230.
Reprint No. 9

after sub-section (2) insert—

as at 1 August
1998.

"(3) The court has the same jurisdiction, and may

exercise the same powers and authority, to
grant an injunction in a criminal proceeding
restraining a person from publishing any
material or doing any other thing to ensure
the fair and proper conduct of the proceeding
as the Supreme Court has and may exercise
in respect of a criminal proceeding in the
Supreme Court.

(4) The power of the court referred to in sub-

section (3) is exercisable by making an
order, whether interlocutory or final, either
unconditionally or on such terms and
conditions as the court thinks just.

(5) Nothing in sub-section (3) limits sub-section (2) or section 54 or 80.".

28. New sections 80 and 80AA substituted in County Court Act 1958

(1) For section 80 of the County Court Act 1958 substitute— "80. Power to close proceedings to the public

(1) The court may in the circumstances

mentioned in section 80AA—

(a)	order that the whole or any part of a proceeding be heard in closed court; or
(b)	order that only persons or classes of persons specified by it may be present during the whole or any part of a proceeding; or

Magistrates' Court (Amendment) Act 1999

s. 28 Act No. 10/1999

(c) make an order prohibiting the publication of a report of the whole or any part of a proceeding or of any information derived from a proceeding.

(2) This section applies to any proceeding, whether civil or criminal.

(3) If an order has been made under this section the court must cause a copy of it to be posted on a door of the court house or in another

conspicuous place where notices are usually
posted at the court house.

(4) A person must not contravene an order made and posted under this section.

Penalty:  1000 penalty units or
imprisonment for 3 months.

80AA. Circumstances in which order may be made

under section 80

The court may make an order under section 80 if in its opinion it is necessary to do so in order not to—

(a)	endanger the national or international security of Australia; or
(b)	prejudice the administration of justice; or
(c)	endanger the physical safety of any person; or

(d) offend public decency or morality; or

(e) cause undue distress or embarrassment to the complainant in a proceeding that relates to a charge for an offence under Subdivision (8A), (8B), (8C), (8D) or

(8E) of Division 1 of Part I of the corresponding previous enactment or

Magistrates' Court (Amendment) Act 1999

Act No. 10/1999	s. 29
for an attempt to commit any such offence or an assault with intent to commit any such offence; or
(f)	cause undue distress or embarrassment to a witness under examination in a proceeding that relates to a charge for an offence where the conduct constituting the offence consists wholly or partly of taking part, or attempting to take part, in an act of sexual penetration as defined in section 35 of the Crimes Act 1958.".

(2) Section 81 of the County Court Act 1958 is

repealed.

29. New section 89 inserted in County Court Act 1958

In the County Court Act 1958, after section 88
insert—
"89. Transitional provisions

The amendments of this Act made by sections 27 and 28 of the Magistrates' Court (Amendment) 1999 apply to proceedings, whether commenced before or after the commencement of those sections.".

30. Penalties on breaching sentencing orders

In sections 18W(5), 26(3A), 31(5), 47(3A) and 79(4) of the Sentencing Act 1991, for "level 12 fine" substitute "level 10 fine".

31. Minor amendments

(1) In section 140 of the Principal Act, sub-sections (4) and (5) are repealed.

(2) In clause 2 of Schedule 7 to the Principal Act, in

the definition of "statutory rule" for "1962"
substitute "1994".

Magistrates' Court (Amendment) Act 1999

s. 31 Act No. 10/1999

(3) In section 280 of the Children and Young

Persons Act 1989, sub-sections (3) and (4) are repealed.

(4) In the Sentencing Act 1991—

(a) in section 68, sub-sections (2) and (3) are repealed;

(b) in section 116(1), paragraph (a) is repealed;

(c) in section 116, sub-sections (3) and (4) are repealed.

(5) In the Crimes Act 1958—

(a)	in section 345 omit the expression beginning "and any such regulation" and ending at the end of the section;
(b)

in section 353, for sub-section (4) "(4) A regulation made under sub-section

(2) or (3) is subject to disallowance by

a House of the Parliament.";

(c)	in section 464ZJ, sub-sections (3) and (4) are repealed;
(d)

in section 464ZJ, for sub-section (5) "(5) If a regulation made under sub-section

(1) is disallowed by the Parliament or a House of the Parliament, no regulation which is the same in substance as the

disallowed regulation may be made within 6 months after the date of the disallowance, unless—

(a) if the regulation was disallowed by one House of the Parliament, that House approves the making of a regulation the same in

Magistrates' Court (Amendment) Act 1999

Act No. 10/1999 s. 31

substance as the disallowed

regulation; or

(b) by both Houses of the Parliament,
each House approves the making
of a regulation the same in

if the regulation was disallowed regulation.".

(e) in Part 7, for "590." (where secondly occurring) substitute "591.".

(6) In section 78 of the County Court Act 1958, sub- sections (6) and (7) are repealed.

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Magistrates' Court (Amendment) Act 1999

Notes Act No. 10/1999

NOTES

†

Minister's second reading speech—

Legislative Assembly: 29 October 1998

Legislative Council: 13 April 1999

The long title for the Bill for this Act was "to amend the Magistrates'
Court Act 1989, the Supreme Court Act 1986, the County Court Act
1958, the Crimes Act 1958, the Children and Young Persons Act 1989
and the Sentencing Act 1991 and for other purposes."