Magistrates' Court (Koori Court) Act 2002 (Vic)

Magistrates' Court (Koori Court) Act 2002

Act No. 27/2002

TABLE OF PROVISIONS

Section Page

1.	Purposes	1
2.	Commencement	2
3.	Principal Act	2
4.	Definitions	3
5.	New section 3A inserted	3
3A.	Meaning of "family member"	3
6.	New sections 4D to 4G inserted	6
4D.	Establishment of Koori Court Division	6
4E.	Jurisdiction of Koori Court Division	7
4F.	Circumstances in which Koori Court Division may
deal with certain offences	7
4G.	Sentencing procedure in Koori Court Division	8
7.	New section 17A inserted	10

17A.	Appointment of Aboriginal elders or respected
persons 10

8.	New section 144 inserted	10
144.	Rules of court—Koori Court Division	10
9.	Transitional provision	11
10.	Repeal of Koori Court Division provisions	11

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ENDNOTES 12

i

Victoria

No. 27 of 2002

Magistrates' Court (Koori Court) Act

2002†

[Assented to 12 June 2002]

The Parliament of Victoria enacts as follows:

1. Purposes

The purposes of this Act are—

(a) to establish a Koori Court Division of the Magistrates' Court; and

Magistrates' Court (Koori Court) Act 2002

Act No. 27/2002 s. 2

(b) to provide for the jurisdiction and procedure of that Division—

with the objective of ensuring greater participation
of the Aboriginal community in the sentencing
process of the Magistrates' Court through the role
to be played in that process by the Aboriginal

elder or respected person and others.

2. Commencement

(1) This Act (other than section 10) comes into

operation on the day after the day on which it

receives the Royal Assent.

(2) Subject to sub-section (3), section 10 comes into

operation on a day to be proclaimed.

(3) If section 10 does not come into operation before

1 July 2005, it comes into operation on that day.

3. Principal Act

See:

In this Act, the Magistrates' Court Act 1989 is	Act No.
called the Principal Act.	51/1989. Reprint No. 7
as at 1 June 2001
and
amending
Act Nos
53/2000, 92/2000,
98/2000, 99/2000 (as
amended by No. 12/2001),
2/2001, 14/2001,
32/2001, 44/2001,
45/2001, 61/2001,
69/2001,
92/2001,
2/2002 and
4/2002. LawToday:
dpc.vic.
gov.au

Magistrates' Court (Koori Court) Act 2002

s. 4 Act No. 27/2002

4. Definitions

In section 3(1) of the Principal Act insert the
following definitions—

' "Aboriginal elder or respected person" means

a person who holds office as an Aboriginal

elder or respected person under section 17A;

"Aborigine" means a person who—

(a)	is descended from an Aborigine or Torres Strait Islander; and
(b)	identifies as an Aborigine or Torres Strait Islander; and
(c)	is accepted as an Aborigine or Torres Strait Islander by an Aboriginal or Torres Strait Island community;

"family member" has the meaning given by

section 3A;

"Koori Court officer" means a person who—

(a)

is employed under Part 3 of the Public Employment Act 1998; and

(b) exercises powers or performs functions in relation to the Koori Court Division of the Court;'.

5. New section 3A inserted

After section 3 of the Principal Act insert—

'3A. Meaning of "family member"

(1) In this Act, "family member" of a person

means—

(a) the spouse or domestic partner of the person; or

Magistrates' Court (Koori Court) Act 2002

Act No. 27/2002 s. 5

(b)

a person who has or has had an intimate or

(c)	a person who is or has been a relative of the person; or
(d)	a child who normally or regularly resides with the person; or
(e)	a child of whom the person is a guardian; or
(f)	another person who is or has been ordinarily a member of the household of the person.

(2) For the purposes of the definition of "family member" in sub-section (1)—

(a) an adult person to whom the person is
not married but with whom the person
is in a relationship as a couple where
one or each of them provides personal
or financial commitment and support of
a domestic nature for the material
benefit of the other, irrespective of their
genders and whether or not they are
living under the same roof, but does not
include a person who provides

"domestic partner" of a person means the person—

(i) for fee or reward; or

(ii) organisation (including a
government or government
agency, a body corporate or a

on behalf of another person or an organisation);

Magistrates' Court (Koori Court) Act 2002

s. 5 Act No. 27/2002

(b) "parent" of a child includes a guardian of the child or a person with whom the child normally or regularly resides;

(c) "relative" of a person means—

(i)	a father, mother, grandfather, grandmother, step-father, step- mother, father-in-law or mother- in-law of the person; or
(ii)	a son, daughter, grandson, granddaughter, step-son, step- daughter, son-in-law or daughter- in-law of the person; or
(iii)	a brother, sister, half-brother, half- sister, brother-in-law or sister-in- law of the person; or

(iv)  an uncle, aunt, uncle-in-law or aunt-in-law of the person; or

(v)  a nephew or niece of the person; or

(vi) a cousin of the person—
and includes, in the case of domestic
partners, a person who would be such a
relative if the domestic partners were

married to each other;

(d) "spouse" of a person means a person to whom the person is or was married.

(3) For the purposes of the definition of

"domestic partner" in sub-section (2)—

(a) in determining whether persons are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 275(2) of the Property Law

Magistrates' Court (Koori Court) Act 2002

Act No. 27/2002	s. 6
Act 1958 as may be relevant in a particular case;

(b) a person is not a domestic partner of another person only because they are co-tenants.'.

6. New sections 4D to 4G inserted

Before section 5 of the Principal Act insert—

"4D. Establishment of Koori Court Division

(1) The Court has a Koori Court Division.

(2) The Koori Court Division has such of the

powers of the Court as are necessary to
enable it to exercise its jurisdiction.

(3) Despite anything to the contrary in this Act, the Koori Court Division may only sit and act at a venue of the Court specified by the Chief Magistrate by notice published in the Government Gazette.

(4) The Koori Court Division must exercise its

jurisdiction with as little formality and consideration of the matters before the Court permit.
technicality, and with as much expedition, as
the requirements of this Act and the

(5) The Koori Court Division must take steps to

ensure that, so far as practicable, any
proceeding before it is conducted in a way
which it considers will make it
comprehensible to—

(a) the defendant; and

(b) a family member of the defendant; and

(c) any member of the Aboriginal community who is present in court.

Magistrates' Court (Koori Court) Act 2002

s. 6 Act No. 27/2002

(6) Subject to this Act, the regulations and the

rules, the Koori Court Division may regulate

its own procedure.

4E. Jurisdiction of Koori Court Division

The Koori Court Division has—

(a)	the jurisdiction to deal with a proceeding for an offence given to it by section 4F; and
(b)	jurisdiction to deal with a breach of a sentencing order made by it (including any offence constituted by such a breach) or variation of such a sentencing order; and
(c)	any other jurisdiction given to it by or under this or any other Act.

4F. Circumstances in which Koori Court

Division may deal with certain offences

(1) The Koori Court Division only has

jurisdiction to deal with a proceeding for an offence (other than an offence constituted by a breach of a sentencing order made by it)

if—

(a) the defendant is Aboriginal; and

(b) the offence is within the jurisdiction of the Magistrates' Court, other than—

(i)

a sexual offence as defined in Act 1991; or

(ii) an offence against section 22 of the Crimes (Family Violence) Act 1987 (breach of intervention

order or interim intervention
order) or an offence arising out of
the same conduct as that out of

Magistrates' Court (Koori Court) Act 2002

Act No. 27/2002 s. 6

which the offence against

section 22 arose; and

(c) the defendant—

(i)  intends to plead guilty to the offence; or

(ii) pleads guilty to the offence; or

(iii) Koori Court Division. intends to consent to the enable him or her to participate in a diversion program; and

(d) the defendant consents to the

(2) Subject to and in accordance with the rules—

(a)	a proceeding may be transferred to the Koori Court Division, whether sitting at the same or a different venue; and
(b)

the Koori Court Division may transfer a transferred to it under paragraph (a)) to the Court, sitting other than as the Koori Court Division, at the same or a different venue.

(3) Despite anything to the contrary in this Act,

if a proceeding is transferred from one venue of the Court to another, the transferee venue is the proper venue of the Court for the

purposes of this Act.

4G. Sentencing procedure in Koori Court

Division

(1) This section applies to the Koori Court Division when it is considering which sentencing order to make in respect of a

defendant.

Magistrates' Court (Koori Court) Act 2002

s. 6 Act No. 27/2002

(2) The Koori Court Division may consider any

oral statement made to it by an Aboriginal
elder or respected person.

(3) The Koori Court Division may inform itself

in any way it thinks fit, including by
considering a report prepared by, or a
statement or submission prepared or made to
it by, or evidence given to it by—

(a)	a Koori Court officer employed as an Aboriginal justice worker; or
(b)

a community corrections officer Corrections Act 1986; or

(c) a health service provider; or

(d) a victim of the offence; or

(e) a family member of the defendant; or

(f) anyone else whom the Koori Court Division considers appropriate.

(4) Nothing in this section affects the

requirement to observe the rules of natural

justice.

(5) This section does not limit—

(a)	any other power conferred on the Court by or under this or any other Act; or
(b)	under this or any other Act for the making of any report, statement or submission, or the giving of any

any other specific provision made by or of assisting it in determining sentence.".

Magistrates' Court (Koori Court) Act 2002

Act No. 27/2002 s. 7

7. New section 17A inserted

After section 17 of the Principal Act insert—

"17A. Appointment of Aboriginal elders or

respected persons

(1) The Secretary may appoint a person who is a

member of the Aboriginal community as an Aboriginal elder or respected person for the purpose of performing functions in relation to the Koori Court Division of the Court as set out in this Act.

(2) An Aboriginal elder or respected person

holds office for the period, and on the terms and conditions, determined by the Secretary and specified in the instrument of
appointment.

(3) An Aboriginal elder or respected person may

resign from office by writing signed by him
or her and delivered to the Secretary.".

8. New section 144 inserted

In Part 7 of the Principal Act, after section 143 insert—

'144. Rules of court—Koori Court Division

(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 Koori Court Division of the Court; and
(b)	the transfer of proceedings to and from the Koori Court Division of the Court.

(2) Sub-sections (3) to (5) of section 142 apply
to a power conferred by sub-section (1) and
to rules made under that sub-section as if—

Magistrates' Court (Koori Court) Act 2002

s. 9 Act No. 27/2002

(a)	any reference in those sub-sections to "sub-section (1)" were a reference to sub-section (1) of this section; and
(b)	sub-section (4)(c) did not contain the word "committal".'.

9. Transitional provision

In Schedule 8 to the Principal Act, at the end of the Schedule insert—

"28. The amendments of this Act made by section 6 of the
Magistrates' Court (Koori Court) Act 2002 apply
with respect to a proceeding for an offence,
irrespective of when the offence was committed or the
proceeding commenced.".

10. Repeal of Koori Court Division provisions

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

of "Aboriginal elder or respected person",
"Aborigine", "family member" and "Koori Court

officer" are repealed.

(2) Sections 3A, 4D, 4E, 4F, 4G, 17A and 144 of the

Principal Act are repealed.

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Magistrates' Court (Koori Court) Act 2002

Act No. 27/2002 Endnotes

ENDNOTES

†

Minister's second reading speech—

Legislative Assembly: 24 April 2002

Legislative Council: 29 May 2002

The long title for the Bill for this Act was "to amend the Magistrates' Court Act 1989 to establish a Koori Court Division of the Magistrates' Court, to provide for the jurisdiction and procedure of that Division and for other purposes."