Untitled document
Justice Legislation (Miscellaneous Amendments) Act 2006
Act No. 14/2006
table of provisions
Section Page
Part 1—Preliminary
1.Purpose
2.Commencement
Part 2—Amendment of Appeal Costs Act 1998
3.Application for indemnity certificate if criminal proceeding adjourned
Part 3—Amendment of Constitution Act 1975
4.Commissions of Judges
5.Salaries, allowances and pensions of Judges of the Supreme Court
6.As to pensions of Judges of the Supreme Court and their
spouses and children7.Judges not to hold any other place of profit
Part 4—Amendment of County Court Act 1958
8.Salaries and allowances of the Chief Judge and other judges
9.Provision for pensions to County Court judges and their
widows10.Power to make rules of practice
11.Council of Judges
Part 5—Amendment to Courts Legislation (Judicial Conduct) Act 2005
12.Commissions of Judges
Part 6—Amendment of Crimes Act 1958
13.Forensic procedure following the commission of forensic
sample offence14.Retention of information following finding of guilt
15.New section 604 inserted
604.Transitional provision—Justice Legislation (Miscellaneous Amendments) Act 2006
Part 7—Amendment of Evidence Act 1958
16.List of persons who may witness statutory declarations
17.Affidavits in Victoria how sworn and taken
Part 8—Amendment of Public Notaries Act 2001
18.Application for certificate of eligibility
Part 9—Amendment of Serious Sex Offenders Monitoring Act 2005
19.Amendment to Schedule
Part 10—Amendment of Sex Offenders Registration Act 2004
20.Amendment to Schedule 1—Class 1 Offences
Part 11—Amendment of Victorian Civil and Administrative Tribunal Act 1998
21.Definition
22.Short-term Vice Presidents
23.Vacation of office
24.Member or former member may not represent a party
25.Reconstitution of Tribunal
26.New section 162 inserted
162.Transitional provision—Justice Legislation (Miscellaneous Amendments) Act 2006
27.Questions of law
Part 12—Amendment of Working with Children Act 2005
28.Teachers
Part 13—Amendment of Legal Profession Act 2004
29.Legal Services Board elections
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Endnotes
Justice Legislation (Miscellaneous Amendments) Act 2006
[Assented to 11 April 2006]
The Parliament of Victoria enacts as follows:
Part 1—Preliminary
1.Purpose
The purpose of this Act is to make miscellaneous amendments to—
(a)the Appeal Costs Act 1998; and
(b)the Constitution Act 1975; and
(c)the County Court Act 1958; and
(d)the Courts Legislation (Judicial Conduct) Act 2005; and
(e)the Crimes Act 1958; and
(f)the Evidence Act 1958; and
(g)the Public Notaries Act 2001; and
(h)the Serious Sex Offenders Monitoring Act 2005; and
(i)the Sex Offenders Registration Act 2004; and
(j)the Victorian Civil and Administrative Tribunal Act 1998; and
(k)the Working with Children Act 2005; and
(l)the Legal Profession Act 2004.
2.Commencement
(1)This Act, other than sections 6 and 20, comes into operation on the day after the day on which it receives the Royal Assent.
(2)Section 6 is deemed to have come into operation on 1 May 2005.
(3)Section 20 is deemed to have come into operation on 1 August 2005.
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Part 2—Amendment of Appeal Costs Act 1998
3.Application for indemnity certificate if criminal proceeding adjourned
In section 17(3) of the Appeal Costs Act 1998, after "approved form" insert "and on proof being provided by that party of the costs that have been incurred".
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Part 3—Amendment of Constitution Act 1975
4.Commissions of Judges
(1)In section 77(4)(a) of the Constitution Act 1975, for "has not made an election under section 80A" substitute "did not make an election under section 80A before the commencement of section 3 of the Courts Legislation (Judicial Appointments and Other Amendments) Act 2005".
(2)In section 77(4)(b) of the Constitution Act 1975, for "that section who has made an election under section 80A" substitute "section 4 of the Courts Amendment Act 1986 who made an election under section 80A before the commencement of section 3 of the Courts Legislation (Judicial Appointments and Other Amendments) Act 2005".
(3)In section 77(4)(c) of the Constitution Act 1975, for "that section" substitute "section 4 of the Courts Amendment Act 1986".
5.Salaries, allowances and pensions of Judges of the Supreme Court
In section 82(9) of the Constitution Act 1975, for "has made an election under section 80A" substitute "made an election under section 80A before the commencement of section 3 of the Courts Legislation (Judicial Appointments and Other Amendments) Act 2005".
6.As to pensions of Judges of the Supreme Court and their spouses and children
After section 83(1B) of the Constitution Act 1975 insert—
"(1C)A Judge of the Court who—
(a)was appointed as a Judge of the Court before the commencement of section 16 of the Judicial Remuneration Tribunal Act 1995; and
(b)has served for not less than 10 years in the office of Judge of the Court; and
(c)has attained the age of 60 years—
may retire from his or her office before attaining the age of 65 years and then on attaining the age of 65 years shall be entitled to a pension payable fortnightly at the rate per annum of 60 per centum of the annual salary for the time being applicable to the office that he or she held immediately before his or her retirement.".
7.Judges not to hold any other place of profit
In section 84(5) of the Constitution Act 1975, for "has made an election under section 80A" substitute "made an election under section 80A before the commencement of section 3 of the Courts Legislation (Judicial Appointments and Other Amendments) Act 2005".
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Part 4—Amendment of County Court Act 1958
8.Salaries and allowances of the Chief Judge and other judges
In section 10(9) of the County Court Act 1958, for "has made an election under section 13A" substitute "made an election under section 13A before the commencement of section 7 of the Courts Legislation (Judicial Appointments and Other Amendments) Act 2005".
9.Provision for pensions to County Court judges and their widows
In section 14(1) of the County Court Act 1958—
(a)in paragraph (a), for "has not made an election under section 13A" substitute "did not make an election under section 13A before the commencement of section 7 of the Courts Legislation (Judicial Appointments and Other Amendments) Act 2005";
(b)in paragraph (b), for "that section who has made an election under section 13A" substitute "section 8 of the Courts Amendment Act 1986 who made an election under section 13A before the commencement of section 7 of the Courts Legislation (Judicial Appointments and Other Amendments) Act 2005".
(c)in paragraph (c), for "that section" substitute "section 8 of the Courts Amendment Act 1986".
10.Power to make rules of practice
In section 78(1) and (2) of the County Court Act 1958, for "have made an election under section 13A(1) or has been appointed under section 13A(3A)" substitute "made an election under section 13A(1), or were appointed under section 13A(3A), before the commencement of section 7 of the Courts Legislation (Judicial Appointments and Other Amendments) Act 2005".
11.Council of Judges
In section 87(3) of the County Court Act 1958, for "has made an election under section 13A(1) or has been appointed under section 13A(3A)" substitute "made an election under section 13A(1), or were appointed under section 13A(3A), before the commencement of section 7 of the Courts Legislation (Judicial Appointments and Other Amendments) Act 2005".
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Part 5—Amendment to Courts Legislation (Judicial Conduct) Act 2005
12.Commissions of Judges
In section 5(2) of the Courts Legislation (Judicial Conduct) Act 2005, in the proposed new section 77(4)(aa) of the Constitution Act 1975, after "by" insert "or".
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Part 6—Amendment of Crimes Act 1958
13.Forensic procedure following the commission of forensic sample offence
(1)In section 464ZF of the Crimes Act 1958—
(a)in sub-section (2), for "expiration of any appeal period or the final determination of an appeal" substitute "final determination of an appeal against conviction or sentence or the expiration of any appeal period";
(b)in sub-section (2AA), for "expiration of any appeal period or the final determination of an appeal" substitute "final determination of an appeal against conviction or sentence or the expiration of any appeal period";
(c)in sub-section (6)—
(i)after "relation to the" insert "conviction for the";
(ii)after "an appeal" (where twice occurring) insert "against conviction".
(2)After section 464ZF(6) of the Crimes Act 1958 insert—
"(6A)If leave to appeal against a conviction for a forensic sample offence is sought after the expiry of the appeal period in relation to the conviction, an order made by a court under sub-section (2) before leave to appeal is sought, if not executed before that leave is sought, must not be executed unless—
(a)leave to appeal against the conviction is refused; or
(b)leave to appeal against the conviction is granted and the appeal is finally determined and the conviction for the forensic sample offence is upheld.
(6B)If an order made by a court under sub-section (2) has been executed after the expiration of the appeal period in relation to the conviction for the forensic sample offence and leave to appeal against the conviction is granted after the expiry of that period—
(a)any sample and any related material and information taken may be retained by a member of the police force pending the final determination of the appeal against conviction; and
(b)if, on appeal, the conviction for the forensic sample offence is quashed, the Chief Commissioner of Police must without delay destroy, or cause to be destroyed, any sample taken and any related material and information.".
14.Retention of information following finding of guilt
In section 464ZFB of the Crimes Act 1958—
(a)in sub-section (1), for "expiry of the appeal period in respect of the offence or the final determination of an appeal" substitute "final determination of an appeal against conviction or sentence or the expiry of any appeal period in respect of the offence";
(b)in sub-section (2A)—
(i)after "respect of the" insert "conviction for the";
(ii)after "appeal" (where secondly and thirdly occurring) insert "against conviction".
15.New section 604 inserted
After section 603 of the Crimes Act 1958 insert—
"604.Transitional provision—Justice Legislation (Miscellaneous Amendments) Act 2006
The amendments made to this Act by sections 13 and 14 of the Justice Legislation (Miscellaneous Amendments) Act 2006 only apply to appeals for which the notice of appeal or notice of application for leave to appeal is given after the commencement of those sections.".
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Part 7—Amendment of Evidence Act 1958
16.List of persons who may witness statutory declarations
In section 107A(1)(i) of the Evidence Act 1958 for "Part XV of the Patents Act 1952" substitute "Chapter 20 of the Patents Act 1990".
17.Affidavits in Victoria how sworn and taken
In section 123C(1)(gd) of the Evidence Act 1958 for "Part XV of the Patents Act 1952" substitute "Chapter 20 of the Patents Act 1990".
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Part 8—Amendment of Public Notaries Act 2001
18.Application for certificate of eligibility
In section 5(3) of the Public Notaries Act 2001, for "2∙9 fee units" substitute "29 fee units".
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Part 9—Amendment of Serious Sex Offenders Monitoring Act 2005
19.Amendment to Schedule
After item 37 of the Schedule to the Serious Sex Offenders Monitoring Act 2005 insert—
"37A.An offence against section 271.4 (trafficking in children) or section 271.7 (domestic trafficking in children) of the Criminal Code of the Commonwealth in circumstances where the purpose of the exploitation is to provide sexual services within the meaning of that section.".
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Part 10—Amendment of Sex Offenders Registration Act 2004
20.Amendment to Schedule 1—Class 1 Offences
In Schedule 1 to the Sex Offenders Registration Act 2004, for "6A. An offence" substitute "6AA. An offence".
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Part 11—Amendment of Victorian Civil and Administrative Tribunal Act 1998
21.Definition
In section 3 of the Victorian Civil and Administrative Tribunal Act 1998 insert the following definition—
' "acting judge", in relation to the Supreme Court or County Court, means a Judge appointed as an acting judge, in the case of the Supreme Court, under section 80D of the Constitution Act 1975, or, in the case of the County Court, under section 11 of the County Court Act 1958;'.
22.Short-term Vice Presidents
(1)In section 11A(1) of the Victorian Civil and Administrative Tribunal Act 1998, after "Court" insert "or acting judges of the Supreme Court or County Court".
(2)In section 11A(2), (3) and (4) of the Victorian Civil and Administrative Tribunal Act 1998, after "judge" (wherever occurring) insert "or an acting judge".
(3)In section 11A(2) of the Victorian Civil and Administrative Tribunal Act 1998, for "3 months" substitute "6 months".
(4)After section 11A(2) of the Victorian Civil and Administrative Tribunal Act 1998 insert—
"(2A)In appointing a reserve judge or an acting judge as a Vice President, the Minister may from time to time require that judge to undertake the duties of a Vice President on a full-time or part-time basis, including a sessional basis.".
(5)In section 11A(3) of the Victorian Civil and Administrative Tribunal Act 1998, after "Chief Judge" insert "or the Chief Justice, as the case requires".
(6)In section 11A(5) of the Victorian Civil and Administrative Tribunal Act 1998, for "judge" substitute "or acting judge".
23.Vacation of office
(1)In section 21(1) of the Victorian Civil and Administrative Tribunal Act 1998, after "reserve judge" insert "or acting judge".
(2)After section 21(2) of the Victorian Civil and Administrative Tribunal Act 1998 insert—
"(3)Without limiting sub-section (2), the office of an ordinary member or a senior member, if that member is a magistrate, becomes vacant if the member ceases to hold the office of magistrate.".
24.Member or former member may not represent a party
In section 25A(b) of the Victorian Civil and Administrative Tribunal Act 1998, after "assigned" insert ", except with the approval of the President".
25.Reconstitution of Tribunal
(1)In section 108(4) of the Victorian Civil and Administrative Tribunal Act 1998, for "require the matter to be referred to the President" substitute "make a request to the President that the Tribunal be reconstituted".
(2)For section 108(5) of the Victorian Civil and Administrative Tribunal Act 1998 substitute—
"(5)If a request is made to the President under sub-section (4), the President may allow or reject the request for reconstitution, with or without allowing the parties to make written or oral submissions.".
26.New section 162 inserted
After section 161 of the Victorian Civil and Administrative Tribunal Act 1998 insert—
"162.Transitional provision—Justice Legislation (Miscellaneous Amendments) Act 2006
The amendments made to Schedule 1 by section 27 of the Justice Legislation (Miscellaneous Amendments) Act 2006 only apply to proceedings commenced after the commencement of that section.".
27.Questions of law
(1)In clause 66(1)(a) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, for "if the parties agree" substitute "unless the parties that are present at the hearing of the proceeding disagree".
(2)After clause 66(2) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 insert—
"(3)For the purpose of this clause, the determination of a question of law in a proceeding under a planning enactment is deemed to be an order for the purposes of section 120.".
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Part 12—Amendment of Working with Children Act 2005
28.Teachers
In section 30(1) of the Working with Children Act 2005—
(a)for "registered under section 11 of" substitute "a registered teacher under";
(b)omit "as a teacher".
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Part 13—Amendment of Legal Profession Act 2004
29.Legal Services Board elections
(1)For the heading to clause 5 of Schedule 1 to the Legal Profession Act 2004 substitute—
"Preferential voting for advocate member".
(2)After clause 5(2) of Schedule 1 to the Legal Profession Act 2004 insert—
"(3)This clause applies to the election of the advocate member.".
(3)After clause 5 of Schedule 1 to the Legal Profession Act 2004 insert—
'5A.Exhaustive preferential voting for non-advocate members
(1)This clause applies to the election of the non-advocate members if there are more than 2 candidates.
(2)The first vacancy is to be filled in the manner specified in clause 5(2) for determining the result if there are more than 2 candidates for election of a member and, for that purpose, a reference in clause 5(2) to a "defeated candidate" or a "non-defeated candidate" is to be construed as a reference to an "excluded candidate" or a "continuing candidate" as the case may be.
(3)The second vacancy is to be filled as follows—
(a)all the ballot-papers (other than the ballot-papers which are rejected) are to be rearranged under the names of the respective candidates for which a first preference is indicated;
(b)the ballot-papers on which a first preference is indicated for the elected candidate are to be placed in the parcel of the continuing candidate next in order of the voter's preference;
(c)the total number of votes given to each continuing candidate is to be ascertained;
(d)the candidate who has received the greatest number of votes, if that number constitutes an absolute majority of votes, is to be declared elected;
(e)if no candidate has an absolute majority of votes—
(i)the candidate who has received the fewest votes is to be declared an excluded candidate; and
(ii)the ballot-papers counted to the excluded candidate are to be distributed amongst the continuing candidates next in order of the voters' preference; and
(iii)the total number of votes given to each continuing candidate is to be ascertained; and
(iv)the candidate who then has received the greatest number of votes, if that number constitutes an absolute majority of votes, is to be declared elected;
(f)if no candidate then has an absolute majority of votes the process of declaring the candidate who has the fewest votes an excluded candidate and distributing the ballot-papers amongst the continuing candidates next in order of the voter's preference is to be repeated until one candidate has received an absolute majority of votes and is declared elected.
(4)If on any count 2 or more candidates have an equal number of votes and one of them has to be declared an excluded candidate the result is to be determined by lot.
(5)If on the final count 2 candidates have received an equal number of votes the result is to be determined by lot.
(6)In this clause, "continuing candidate" means a candidate not already elected or excluded from the count.'.
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Endnotes
Minister's second reading speech—
Legislative Assembly: 16 November 2005
Legislative Council: 28 March 2006
The long title for the Bill for this Act was "to amend the Appeal Costs Act 1998, the Constitution Act 1975, the County Court Act 1958, the Courts Legislation (Judicial Conduct) Act 2005, the Crimes Act 1958, the Evidence Act 1958, the Public Notaries Act 2001, the Serious Sex Offenders Monitoring Act 2005, the Sex Offenders Registration Act 2004, the Victorian Civil and Administrative Tribunal Act 1998, the Working with Children Act 2005 and the Legal Profession Act 2004 and for other purposes."
Constitution Act 1975:
Absolute majorities:
Legislative Assembly: 1 March 2006, 4 April 2006
Legislative Council: 30 March 2006
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