Untitled document

Justice Legislation (Evidence and Other Acts) Amendment Act 2016

No. 38 of 2016

table of provisions

Section  Page

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendments relating to the use of audio visual links

Division 1—Amendment of Evidence (Miscellaneous Provisions) Act 1958

3New section 42JA inserted

4Appearance of adult accused before court

5Making of direction for physical appearance in section 42K(1) proceedings

6Making of direction for audio visual appearance in section 42K(2) proceedings

7New section 42MA inserted

8Application for making of direction under section 42K(4)

Division 2—Amendment of other Acts

9Criminal Procedure Act 2009

10Magistrates' Court Act 1989

11Sentencing Act 1991

Part 3—Amendments relating to the board of directors of Victoria Legal Aid

12Board of directors

13Proceedings of board

14New section 53 inserted

Part 4—Repeal of amending Act

15Repeal of amending Act

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Endnotes

1      General information

Justice Legislation (Evidence and Other Acts) Amendment Act 2016

No. 38 of 2016

[Assented to 28 June 2016]

The Parliament of Victoria enacts:

Part 1—Preliminary

1Purposes

The main purposes of this Act are—

(a)to amend the Evidence (Miscellaneous Provisions) Act 1958 to further provide for the use of audio visual links; and

(b)to amend the Legal Aid Act 1978 to further provide for the nomination of directors to the board of directors of Victoria Legal Aid; and

(c)to make minor and consequential amendments to other Acts.

2Commencement

(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2)If a provision of this Act does not come into operation before 10 April 2017, it comes into operation on that day.

Part 2—Amendments relating to the use of audio visual links

Division 1—Amendment of Evidence (Miscellaneous Provisions) Act 1958

3New section 42JA inserted

After section 42J of the Evidence (Miscellaneous Provisions) Act 1958 insert—

"42JA   Appearance of adult accused before Magistrates' Court

(1)Unless the Magistrates' Court makes a direction under section 42L(1), an accused, other than a child, being held in custody who is required to appear, or be brought, before the Magistrates' Court on a proceeding (other than a proceeding referred to in subsection (2) or (3)) is required to appear before it by audio visual link.

(2)Unless the Magistrates' Court makes a direction under section 42M(1), an accused, other than a child, being held in custody who is required to appear, or be brought, before the Magistrates' Court is required to appear, or be brought, physically before the Magistrates' Court—

(a)on an inquiry into the accused's fitness to plead to the charge; or

(b)on the hearing of the charge if the accused is pleading not guilty; or

(c)on a committal hearing.

(3)An accused, other than a child, who has been taken into custody and who is required to be brought before a bail justice or the Magistrates' Court within a reasonable time of being taken into custody to be dealt with according to law is, if being brought before the Magistrates' Court, required to be brought physically before the court unless the accused consents to appear before the court by audio visual link.".

4Appearance of adult accused before court

(1)For the heading to section 42K of the Evidence (Miscellaneous Provisions) Act 1958 substitute—

"Appearance of adult accused before court other than Magistrates' Court".

(2)In section 42K(1) of the Evidence (Miscellaneous Provisions) Act 1958—

(a)for "otherwise directs" substitute "makes a direction under section 42L(1)";

(b)after "before a court" insert "other than the Magistrates' Court";

(c)for paragraph (a) substitute—

"(a)in a proceeding with respect to bail; or";

(d)omit paragraph (c).

(3)In section 42K(2) of the Evidence (Miscellaneous Provisions) Act 1958—

(a)for "otherwise directs" substitute "makes a direction under section 42M(1)";

(b)after "before a court" insert "other than the Magistrates' Court";

(c)omit paragraph (a).

(4)Section 42K(3) and (4) of the Evidence (Miscellaneous Provisions) Act 1958 are repealed.

5Making of direction for physical appearance in section 42K(1) proceedings

(1)Insert the following heading to section 42L of the Evidence (Miscellaneous Provisions) Act 1958—

"Making of direction for physical appearance in section 42JA(1) or 42K(1) proceedings".

(2)In section 42L(1) of the Evidence (Miscellaneous Provisions) Act 1958, for "section 42K(1)" substitute "section 42JA(1) or 42K(1)".

(3)After section 42L(1) of the Evidence (Miscellaneous Provisions) Act 1958 insert—

"(1A)Without limiting subsection (1), in determining whether the making of a direction referred to in subsection (1) in a proceeding referred to in section 42JA(1) is required in the interests of justice, the Magistrates' Court must take into consideration whether the direction is required to enable the accused—

(a)to comprehend the proceedings; or

(b)to communicate with the accused's legal representative and give instructions, or express wishes, to that representative.".

6Making of direction for audio visual appearance in section 42K(2) proceedings

(1)Insert the following heading to section 42M of the Evidence (Miscellaneous Provisions) Act 1958—

"Making of direction for audio visual appearance in section 42JA(2) or 42K(2) proceedings".

(2)In section 42M(1) of the Evidence (Miscellaneous Provisions) Act 1958, for "section 42K(2)" substitute "section 42JA(2) or 42K(2)".

7New section 42MA inserted

After section 42M of the Evidence (Miscellaneous Provisions) Act 1958 insert—

"42MA   Appearance of adult accused in proceedings other than section 42JA or 42K proceedings

In any proceeding to which this Division applies (other than one referred to in section 42JA or 42K), a court may, on its own initiative or on the application of a party to the proceeding, direct that an accused, other than a child, appear before it by audio visual link if it is satisfied that appearance by audio visual link is consistent with the interests of justice.".

8Application for making of direction under section 42K(4)

(1)Insert the following heading to section 42N of the Evidence (Miscellaneous Provisions) Act 1958—

"Application for making of direction under section 42MA".

(2)In section 42N(1), (3), (5) and (6) of the Evidence (Miscellaneous Provisions) Act 1958, for "section 42K(4)" substitute "section 42MA".

Division 2—Amendment of other Acts

9Criminal Procedure Act 2009

(1)In section 3 of the Criminal Procedure Act 2009, for the definition of attend substitute—

"attend, in relation to a person, means—

(a)be physically present in court; or

(b)if authorised or required to do so under Division 2 or 3 of Part IIA of the Evidence (Miscellaneous Provisions) Act 1958, appear or be brought before the court by audio visual link;".

(2)In section 55(4) of the Criminal Procedure Act 2009, in note 1 at the foot of that subsection omit "as to be physically present in court".

(3)In section 329 of the Criminal Procedure Act 2009, in note 2 at the foot of that section, for "permits" substitute "authorises or requires".

(4)In section 330(5) of the Criminal Procedure Act 2009, in note 1 at the foot of that subsection omit "as to be physically present in court".

(5)In section 411(2) of the Criminal Procedure Act 2009, in the note at the foot of that subsection, for "permits" substitute "authorises or requires".

10Magistrates' Court Act 1989

(1)In section 82(2) of the Magistrates' Court Act 1989, for "the venue of the Court prescribed for the purposes of this section or, if the accused consents to appear before the Court by audio visual link within the meaning of Part IIA of the Evidence (Miscellaneous Provisions) Act 1958, to another place specified in the warrant where facilities exist to enable the accused to so appear" substitute "the Court".

(2)After section 82(2) of the Magistrates' Court Act 1989 insert—

"(3)For the purposes of subsection (2), the accused must be brought—

(a)before the Court as authorised or required under Division 3 of Part IIA of the Evidence (Miscellaneous Provisions) Act 1958; or

(b)before the venue of the Court prescribed for the purposes of this section.".

11Sentencing Act 1991

In section 104B(7) of the Sentencing Act 1991, for the definition of attend substitute—

"attend, in relation to a person, means—

(a)be physically present in court; or

(b)if authorised or required to do so under Division 3 of Part IIA of the Evidence (Miscellaneous Provisions) Act 1958, appear or be brought before the court by audio visual link;".

Part 3—Amendments relating to the board of directors of Victoria Legal Aid

12Board of directors

In section 11(c) of the Legal Aid Act 1978, for "3 directors" substitute "5 directors".

13Proceedings of board

In section 12H(3) of the Legal Aid Act 1978, for "Three directors" substitute "Four directors".

14New section 53 inserted

After section 52 of the Legal Aid Act 1978 insert—

"53   Saving provision—Justice Legislation (Evidence and Other Acts) Amendment Act 2016

Despite the amendment made to section 11 by section 12 of the Justice Legislation (Evidence and Other Acts) Amendment Act 2016, on and after the commencement of section 12—

(a)the board is taken to be the same body as it was immediately before that commencement; and

(b)no decision, matter or thing is affected because of the amendment made by section 12; and

(c)a director of the board who held office immediately before that commencement continues in office, subject to this Act, on the same terms and conditions on which the director held office immediately before that commencement.".

Part 4—Repeal of amending Act

15Repeal of amending Act

This Act is repealed on 10 April 2018.

Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Endnotes

1   General information

See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 13 April 2016

Legislative Council: 9 June 2016

The long title for the Bill for this Act was "A Bill for an Act to amend the Evidence (Miscellaneous Provisions) Act 1958 in relation to the use of audio visual links, to amend the Legal Aid Act 1978 in relation to the board of directors of Victoria Legal Aid, to make minor and consequential amendments to other Acts and for other purposes."